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Criminal law - Theft notes: ACTUS REUS

We will see that the elements of theft are still rather difficult to define.
The law relating to theft is governed by the Theft Act 1968, Prior to 1968, the law
relating to theft was governed by the Larceny Act 1916, a complicated and problematic
statute. A new report led to radical reforms to the old law relating to theft and the
enactment of the Theft Act 1968. The 1968 Act aimed to simplify t he law on theft by
creating a clearer and comprehensive statutory framework. The provisions of the Act
have been subject to much judicial analysis and interpretation, resulting in a vast mass
of complicated case law which it has been stated is in urgent need of simplification and
The Theft Act 1968 came into force on 1 January 1969. Theft is an offence which is
triable either way and carries a maximum sentence of 7 years imprisonment upon
conviction in the Crown Court (s.7 of the Act).
The definition of theft is found within s.1(1) of the Theft Act 1968:
A person is guilty of theft if he dishonestly appropriates property belonging to
another with the intention to permanently deprive the other of it.

There are five elements of the offence of theft:

3 are actus reus:
Of property
Belonging to another

And 2 mens rea:

Intention to permanently deprive
The prosecution must prove all five elements in order for a conviction of theft to be
successful (Lawrence v Metropolitan Police Commissioner 1972).
The actus reus elements are very widely defined. In particular, the scope of what
constitutes appropriation has been increased over the years. As a result, Professor
Smith argued that the AR of theft has been reduced to vanishing point (Smith, case
commentary to R v Gomez 1993) and Ormerod and Williams 2007).

Actus Reus
The prosecution must prove that the defendant appropriated the property. Appropriation is
partially defined under s.3(1) of the Theft Act 1968.
S.3 (1): Any assumption by a person of the rights of an owner amounts to an
appropriation, and this includes, where he has come by the property (innocently or not) without
stealing it, any later assumption of a right to it by keeping or dealing with its owner
According to this section, appropriation involves assuming the rights of the owner of the
property; i.e.., doing something with the property that the owner has the right to do.
It encompasses acts such as taking possession of, using, selling, lending, giving away and
destroying the property, as well as omissions such as failing to return or keeping the property.
S.1(2) stated that in order to be guilty the defendant does not need to appropriate the property
with a view to gain or benefit from it.
Although s.3(1) refers to appropriation as an assumption of the rights of the owner, the
defendant does not to assume all of the rights of the owner over the property. The element of
appropriation will be satisfied if the defendant assumes any single right of the owner property.
CASE LAW: Morris (1984): Defendants swapped price tags on goods in a supermarket for
lower priced labels.This act alone or in conjunction with others was enough to satisfy
appropriation. They had assumed a right of the supermarket price setting. Thus the switching
of labels was viewed as an appropriation because it was the right of the owner to fix the price of

Appropriation and consent: Whether or not the assumption of the owners rights must be
unauthorised in order to amount to an appropriation.
In the Larceny Act required that the property stolen be taking without consent of the owner.
The issue of consent in the case of Lawrence v Metropolitan Police Commissioner 1972.
The D was a taxi driver who picked up an italian student who could not speak much English.He
said that 1 was not enough and the student showed him his wallet and he took 5. In COA he
was convicted of theft but he appealed to the HOL on the ground that there was no
appropriation where the student had consented to him taking money from his wallet. HOL held
that the absence of consent was not necessary requirement of appropriation and that the
element of appropriation may be satisfied where the owner has consented to the property being
This conflict was resolved by the HOL years later in the case of:
CASE LAW: DPP v Gomez 1993
D, an assistant manager, persuaded his manager to accept two cheques as payment. D was
aware at the time that the cheques were worthless as they were stolen. D concealed this from
his manager and instead informed him that the cheques were as good as cash.

CA, following Morris, held that there had been no appropriation. HL held that Lawrence (not
Morris) recognised the correct viewpoint on the issue of appropriation and consent, and
concluded that you could appropriate property even though the owner consented or gave
Summary: Property may be appropriate, irrespective of whether or not the defendant had the
consent of the owner to take (or otherwise so treat) the property: Lawrence and Gomez.
Appropriation and gifts: Whether or not an gift might be appropriated.
The first case was Mazo (1997). A maid convicted of theft from her employer.She cashed a sum
of money and claimed that it was a gift. But she took advantage of her employer who had lapse
of memory and was vulnerable. The COA applied a wider interpretation of the meaning
appropriation stating that it is a neutral word to be looked at in isolation from any mens rea
concepts, such as dishonesty and fraud.
D befriended a vulnerable adult. D encouraged V to give her 60K and a television set.
Convicted of theft. D appealed saying a gift could not be appropriated.
HOL confirmed that a valid gift can be the subject of an appropriation. Justified this decision
stating that it was in the interests of justice and confirming the faith placed in judges and juries
to apply the legal principle in Gomez in a way which does not result in injustice. The decision
may be defended on the grounds that it serves to protect the vulnerable.
Physical act: The case of Briggs is the authority of the principle that appropriation connoted a
physical act. The D caused the proceeds of her elderly relatives house sale to be transferred
into her bank account by deceiving them. Her conviction for theft was quashed by the COA,
holding that appropriation requires a physical act rather than a remote act triggering the

D can be found to appropriate even if he does not take possession of the item (Corcoran v
Anderton (1980) 71 Cr App R 104)
Appropriation can occur by a person in or not in possession of the item (S3(1) and Pitman and
Hehl (1976) 65 Cr App R 45).
A later appropriation: S.3(1) Where a person initially comes by property without stealing it, but
he later does something (or omits to do) with the property by which he assumes the rights of the
owner over that property. E.g. keeping the owners property which he initially borrowed
Bona Fide purchasers: s.3(2):
Where property or a right or interest in property is or purports to be transferred for value
to a person acting in good faith, no later assumption by him of rights which he believed
himself to be acquiring shall, by reason of any defect in the transferors title, amount to
theft of the property.
Where a person purchases a property in good faith but it later transpires that ownership of the
property did not pass to the purchaser (for example, if it was stolen property), the purchaser will
not have appropriated the property. If the purchaser does something with the property assuming

the rights of the owner (which he believed he was) over the property, there will be no
appropriation. So, a bona fide purchaser in good faith cannot be guilty of theft.

The prosecution must also proves that the defendant appropriated property, i.e. something
capable of being stolen under the Theft Act 1968 is defined under s.4(1).
Property includes money and all other property, real or personal, including things in
action and other intangible property.
This definition is extremely wide and covers land and all tangible property. Money is specific
mentioned i and refers to coins and banknotes, including foreign currencies.

If D steals a cheque for the value of 100 he has not stolen money. He has
stolen a cheque which is merely a piece of paper; he only steals money if it is
cashed and he receives coins and notes. The 100 in the bank is not
property but a thing to which you have a proprietary interest it is a debt
owed to you by the bank which is a thing in action.
Real property refers to freehold land, although there are a number of exceptions under s.4(2),
and personal property refers to leasehold land and chattels (object such as a laptop, iPod,
wallet or car).
Intangible property (has no physical existence) is also included. A thing in action is an example
of this kind of property because it has no physical existence but it does entitle the owner to bring
an action in law (share in a company, a debt, a copyright, trademark, credit in a bank account,
agreed overdraft). Other intangible property also covers patents and export quotas.

Confidential information: Is not a property and cannot be subject of a charge of theft if

dishonestly appropriated. CASE LAW: Oxford v Moss (1979)
A student managed to obtain an examination paper, he copied the question and returned the
paper. Held that could not be subject of a conviction of theft. It was suggested that he was
convicted if he had been charged with theft of the physical piece of paper. (tangible property)

Electricity: whereas gas and water are property and may be stolen, electricity does not amount
to property and cannot be stolen (Low v Blease). Where a person uses another person
electricity to charge his phone, it will not amount to theft. Such an act may be covered by a
separate offence of abstracting electricity under s.13 of the the Act 1968.

Corpses and body parts: a corpse and body parts are not property and thus cannot be subject
of theft (Sharpe Dears & B). It was confirmed in the case of Kelly and Lindsay (1999). The
exception of a corpse or body parts which is preserved for purposes of medical or scientific
examination, including educational purposes.
Also, where a D cuts of a persons hair, an offence against the person will have been committed
(unless it is consented). Case of DPP v Smith, dishonestly keeping the hair would surely
amount to the offence of theft. The hair is tangible.

Services: for example a bus ride, driving lesson, private tuition do not amount to property under
s.4(1), and therefore cannot be stolen. Where a person dishonestly travels on a bus without
buying a ticket, he has not appropriated any propery and cannot be guilty of theft. He could be
guilty of obtaing services dishonestly under s.11 of the Fraud Act 2006.

Things in Action: Is a right which can be enforced by legal action, and as property under s.4(1)
itt may be subject of a charge of theft. If it belongs to another and is dishonestly appropriated
with the intention to permanently deprive the other of it, the offence will be made out.
Cheques and bank account is a thing in action.

Torkington v Magee [1902] 2 KB 427 defines thing in action as something

which someone owns which they can only claim by legal action and not by
physical possession.
Credit balance in bank account/ Cheque thing in action debt owed to you
by the bank where you write a cheque the debt belongs to the payee of the
cheque not the drawer so by them stealing your cheque they are stealing
your right to enforce that cheque.
Davenport Cheque and bank account are things in action Lord Goddard
says The relationship between banker and customer is that of debtor and
creditorWhen the bank is paying out, whether in cash or over the counter
or whether by crediting the bank account of someone else, he is paying out
his own money, not my money, but he is debiting my account with him. I
have a [thing in action] that is to say a right to expect the banker to honour
my cheque.
Kohn credit account and arranged overdraft are things in action but
unarranged overdrafts are not.
Preddy Facts not relevant but importance of case is that HL recognise that
the taking of a cheque does not amount to an appropriation, you only
appropriate the thing in action when you present it at the bank or try to use
it in a shop etc. It is at that point it is cashed that you are stealing the debt
owed by the bank to V.
Williams D ran a building business and targeted vulnerable elderly
householders. D charged a modest sum for initial work to gain Cs trust and
then charged exorbitant sums for any subsequent work. D charged with
theft by inciting large cheques to be drawn in his favour and then presenting
them for payment
CA recognised an appropriation occurred when he tried to use the cheque i.e.
draw the debt owed by the bank the debt was destroyed when D
appropriated it.

Statutory Exceptions: Land, animals and plants

Land: Land amounts to property under s.4(1) of the Act 1968 but it imposes
limitations on when land can be stolen. A person cannot steal land or things
forming part of land and severed from it by him or by his directions unless
one of the situations in s.4(2)(a) to exists.
*Under s.4(2)(a) where a trustee or personal representative or someone
otherwise authorised to sell or dispose of land, deals with the land in breach
of confidence, he may be guilty of theft.
*Under s.4(2)(b), a person not in possession of land may be guilty of theft of
that land if he appropriates something which forms part of the land by
severing it or causing it to be severed, or if it has already been severed. This
would cover a defendant who enters anothers land and removes a birdbath
which has been fixed to the land.
*Under s.4(2)(c), a tenant in possession of land will be guilty of theft where
he appropriates a fixture or structure on the land. For example, a tenant who
removes a garden shed which is fixed to the land, or even sells the garden
shed without severing it, will be guilty of theft.
Wild Plant: S.4(3) imposes limitations on when things growing wild on land
can be stolen. A defendant is not guilty of theft if he picks wild mushrooms,
or flowers, fruit or foliage from a plant growing wild. However, he will be
guilty of theft if he picks these in order to sell them, or if he completely
uproots a whole plant (other than a mushroom).
Wild Animals: S.4(4) imposes limitations on when wild animals can be stolen.
Tamed animals (such as dogs or a cat) or animals ordinarily kept in captivity
(such as animals kept at London Zoo) are property and can be stolen.
Untamed animals or animals not ordinarily kept in captivity cannot be stolen,
unless the animal has been, or is in the course of being, reduced into
possession of a person.

Belonging to another
Must be proven by the prosecution that at the time of appropriation, the property belonged to
another. Not necessary to prove to whom the property belonged. Under s.5(1) of the Act 1968,
is a wild definition.
Property shall be regarded as belonging to any person having possession or control of
it, or having in it any proprietary right or interest (not being an equitable interest arising only
from an agreement to transfer or grant an interest).
It is clear from this section that property not only belongs to its owner, but it also belongs to any
person who has possession or control of it, or a proprietary interest in it.

Can you steal your own property? It is not possible to steal property from yourself. If you are the
sole person with any proprietary interest in a piece of property, you cannot be guilty of stealing
it. However, it is possible to steal property you own if somebody else has possession or control
of it or a proprietary or interest in it at the moment of appropriation.
CASE LAW: Turner (No.2). Although he was the owner of the vehicle, the garage had
possession or control over the car at the time of appropriation. The idea that you can be guilty of
stealing your own property from somebody who is merely in possession of it seems very
Case: Meredith (1973).car removed by police and place in a compound. D,

secretly took the car back without payment liable for theft? Court said No
as Police had no interest in the property.
If property has been abandoned, it belongs to no one and cannot be stolen. When is property
abandoned? Property is only abandoned if the owner is completely indifferent as to what
happens to it and intends to give up his proprietary rights and interests in the property without
conferring an interest on another person.
Bin bags left for collection are not abandoned. Where property is no longer wanted by the owner
and is left out as refuse for the local authority to collect, it is not abandoned and does belong to
CASE LAW: Williams v Phillips (1957) and confirmed in Rickets v. Basildon Mag. Court (2011)
Control and possession: property belongs to the person in possession or control of it,
irrespective of whether or not they are also the owner. In the case of Woodman (1974)

Possession physical control in certain cases but physical control not

necessary e.g. householder possesses goods when he is away from his house
at the time of the appropriation he does not have physical control.
Control control of goods even though you are not aware that they are there
e.g. item on land which you dont know are there e.g. golf balls lost on your
Woodman P sold all his scrap metal to Q. P had no knowledge that Q had
left scrap metal on his land and P erected a barbed fence to exclude
trespassers from the site. D removed some of the scrap metal and was
convicted of theft. Court held that P was in control of the scrap and it was
unnecessary to determine whether he was also in possession.
A thief can steal from another thief no need to read lawful possession or
control into s5(1) Kelly.
Lost property: property which is merely lost is not abandoned, even if the owner gives up the
search of it.
CASE LAW: Hibbert v McKiernan
CASE LAW: Rostron (2003) -> Convicted of theft of golf balls after he retrieved them from a

lake. D argued balls had been abandoned. Held: Sufficient evidence that they belonged to the
golf club.
Property of the deceased: where a property is stolen from a corpse, proving that the property
belonged to another is problematic. The prosecution must prove that the property belonged to
someone who was alive.
CASE LAW: Sullivan and Ballion (2002): 2 Ds removed 50000 from the dead body of a drug
dealer. The CC ruled the property did not belong to another at the time of the acr of
appropriation and acquitted the charge of theft.
Who did the money belong to? The judge suggested that the money might belong to the Crown
as bona vacantia (doctrine: ownerless passes to the Crown). It is submitted that this alternative
is the most appropriate alternative if the property did not belong to the employer of the
deceased or his estate.
Property received for a particular purpose: Where title to the property passes to the defendant
before the dishonest appropriation of the property, the property does not belong to another and
the can be no conviction for theft.
S.5(3) and 5(4) deals with 2 situations where the property is deemed to belong to another.
s.5(3) where a person receives property from an account of another, and is under an obligation
to the other to retain and del with that property or its proceed in a particular way, the property or
proceeds shall be regarded (as against him) as belonging to the other.
There must be an obligation on the defendant to deal with the property in a particular way(
case: Hall) Obligation e.g. D employs C to paint his home, D gives C 50 to

buy paint, C obtains possession and ownership of the 50 but if he spends it

differently then he can be guilty of theft = imposing of legal obligation
means D retains control of the property. No requirement no theft.
Hall D, a travel agent received deposits and payments from clients who had
booked air trips to America. D paid the money into the firms account but
never arranged the trips and was unable to repay the money. His conviction
quashed as it was not proved that he was under an obligation to use the
money in a particular way. It would have been different if D had been under
an obligation to preserve the money in a separate fund. The clients did not
retain any interest in the money.
Can be contrasted with case of Hassall treasurer took money each week
to be returned at Xmas need to look for a clear understanding of what the
transaction was and the clients retained an interest.
Hallam and Blackburn D, financial advisers similar factual case - they paid
investors cheques into their own accounts or in company account but did not
invest them on their clients behalf money was given to be invested
specified purpose which did not occur

CA upheld their convictions arguing that the clients (writers of the cheques)
retained an equitable interest in the cheques drew in their favour and in the
proceeds or account balance irrelevant at which stage appropriation
Covers situations where someone receives money on account of another
Wain - organised event to raise money for charity and then removed the
money from the charitable account to his own account when he withdrew
money from his charitable account he was charged with theft. Did not have
to keep actual notes but the sum of the collection in a place the charitable
givers would expect had to do with it as they intended it to be used for.
Whether a person is a trustee is something for the courts to determine
matter of law for a judge
Whether or not an obligation arises is a matter for the judge to determine
Accused though must have knowledge of the obligations and its extent; and
it must be a legal obligation (Gilks).
The obligation to deal with the property in a particular way must be a legal obligation. A moral or
social obligation is not enough. Legal Obligation examples:
Davidge v Bunnett (1984) D given money by flatmate to pay the gas bill.
Wain (1995) D given money to pass on to charity but he didnt. Held he was under a legal
obligation to deal with the property in a particular way.
S.5(4): Where a person gets property by anothers mistake, and is under an obligation to make
restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the
extent of that obligation the property or proceeds shall be regarded (as against him) as
belonging to the person entitled to restoration, and an intention not to make restoration shall be
regarded accordingly as an intention to deprive that person of the property or proceeds.
CASE LAW: Attorney Generals Reference (No.1 of 1983):If the D does not resolve the
mistake and repay the money, for example, the property will be deemed as belonging to
It also be held that where property is transferred to another person under a mistake of fact, the
transferor retains an equitable interest in the property (Shadrokh-Cigari).
There must be a legal obligation to restore the money under civil law. In Gilks, there was no
such legal obligation. As the transaction was a wager, there was no legal obligation on the
defendant to return this money in civil law.