Actions undertaken to be guilty of the criminal offence of theft

Theft is defined by section 1 of the Theft Act 1968 as the dishonest appropriation of property belonging to another with the intention to permanently deprive the other of it. The elements required to be proved are widely interpreted by the courts.

Each of the following elements must be established for a defendant to be found guilty of theft:

• Appropriation;
• Of property;
• Belonging to another;
• Dishonestly;
• With intention to permanently deprive.

Appropriation is defined by section 3 of the Theft Act 1968 as assuming the rights of a legal owner of the property without consent. The legal owner of property has absolute legal rights over his or her property, along with the other legal owners (if any). This means that if property has a particular function it would be the right of the owner to use it for that particular function. For example, if an individual owns a car they will have the right to drive that car and prevent anyone else from driving it. If another individual takes the car and drives it without permission, this is appropriation.

Appropriation also includes assuming the legal rights of the property where permission was originally granted, or the property had, for instance, initially been acquired honestly. An example would be taking a car for a test drive with the garage’s permission – this will not be treated as theft. However, if you fail to return the car within a given time and have no intention of returning the car, you will be guilty of appropriation under the meaning of the Theft Act.

Property includes money and other property – both real and intangible, such as cash, debts, intellectual property (ie. copyright), and choses in action (ie. personal rights that can be enforced). Money includes bank notes and coins, money held in bank and building society accounts, and crypto currency such as Bitcoin.

Real property means land and anything fixed to the land, including houses and outbuildings. However, under section 4(2) of the Theft Act, land cannot be stolen unless one of the following elements occurs:

• Where the defendant is a trustee, representative or has authorised power of attorney and deals with the property in breach of trust;
• Where the defendant is not in possession of the property but appropriates anything forming part of the land by severing or causing it to be severed;
• Where the defendant is a tenant and appropriates the whole or part of any fixture.

Personal property includes property other than land, such as vehicles, antiques and all other tangible objects.

A ‘chose in action’ is a personal property right which can be legally enforced. Examples include intellectual property rights, debts, rights arising under a trust, and a right to overdraw a bank account.

Intangible property is property which has no physical existence. The range of intangible property as recognised by the courts reflects the increasingly digital age in which we live and work today. Intangible property therefore includes digital and films that are streamed online, YouTube videos, webcam conference streams and database entries.

Mere information, including confidential information, has been held not to constitute property for the purposes of the Theft Act. In addition, electricity cannot be ‘stolen’.

Under Section 5 of the Theft Act, property belongs to another person if that person has possession or control of it. So, for example, if the legal owner gives permission to a friend to borrow a guitar for the weekend and it is stolen by a third party – this element is still satisfied.

The element of dishonesty requires a two-stage test:

• According to the ordinary standards of reasonable and honest people, was what was done dishonest?
• If it was dishonest by those standards, did the defendant realise that reasonable and honest people would regard the conduct as dishonest?

It will be a defence to a theft charge if you can show that you had a genuine belief that you had the legal right to appropriate the property; the owner would have consented; or the owner cannot be discovered by taking reasonable steps.

This is arguably the most difficult element to prove under the Theft Act. In many cases, it will be evident that this is satisfied. For instance, if someone drives off from a fuel station at speed having failed to pay, it should be apparent that the offender intended to fill up with fuel without making payment. Borrowing something with the intention of returning it to the owner at a later date will not be theft.

If you pick mushrooms, flowers or other foliage growing wild, you will only be liable for theft if it is for sale or reward (section 4 of the Theft Act). Likewise, if you take a wild creature you will only be guilty of an offence if it has either been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or another person is in course of reducing it into possession.

Where property is given to another person with instructions on how to deal with it in a certain way, the ownership of the property is deemed to remain with the giver. This means that if the individual deals with it in a certain way which is not in line with the instructions given then this could amount to theft. The main issue is whether there is a clear obligation to deal with the property in a particular manner.

If the individual receives property by mistake and is under an obligation to return the property, a failure to restore the property will amount to theft. A typical example is where money is transferred by mistake into your bank account. If you spend it instead of notifying the bank of the mistake, you will be guilty of theft.

Section 7 of the Theft Act states that the maximum prison sentence for the offence of theft will be seven years.

There is often an overlap between fraud and theft. For instance, the criminal offence of fraud may include appropriating someone’s identity, money, and so on. Importantly, the Fraud Act 2006 repealed some offences under the 1968 Act including obtaining property by deception; obtaining a money transfer by deception; and obtaining a pecuniary advantage by deception. Notably, for a charge under the 2006 Act, it does not have to be proved that there was an intent to ‘permanently to deprive’ the legal owner.

Identity ‘theft’ and other offences that amount to ‘cybercrime’ will generally be covered by the Fraud Act and not under the Theft Act. Some conduct may amount to offences under both Acts.