Theft and Robbery

Theft is a statutory offence, defined in section 1 of the Theft Act 1968.

“A person commits theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.”

Let’s take a look at the different principles within the definition and see how they have been applied to case law.

Dishonesty is part of the mens rea of theft and requires a two-part test in order for it to be established in law. The test has both objective and subjective elements and was laid down in R v Ghosh, where a locum doctor charged a hospital for work he hadn’t done, in order to receive payment that he was already entitled to, for other work that he hadn’t been paid for yet. In R v Ghosh, it was decided by the court that dishonesty by the defendant is established if (a) the reasonable man would see the conduct as dishonest, and also (b) the defendant realised that it would be seen as dishonest by the standards of the reasonable man.

In 2017, however, the case of Ivey v Genting Casinos seems to have uprooted the established rules on dishonesty. The UK Supreme Court appears to have abandoned the subjective limb of the Ghosh test, preferring instead to use only an objective test, bringing the criminal law in line with civil law. However, Lord Phillips’ comments regarding the removal of the subjective limb were made obiter dicta, so they do not overrule the Court of Appeal’s decision in Ghosh.

Appropriation - Secondly, to appropriate means to assume any rights of ownership over the property in question. It does not mean that all rights of ownership are assumed. Rights include selling the property, destroying it, possessing it, consuming it, using it, hiring it out, etc. In Pitham and Hehl, the defendant had sold furniture belonging to someone else without their permission. It didn’t matter that the furniture hadn’t been removed yet, as the offer to sell was solely the right of the owner, so an appropriation had taken place. Even switching labels on items in a shop can be seen as appropriation, as seen in Morris. Corcoran v Anderton (a robbery case) shows that the tugging of a handbag can amount to an appropriation. Appropriation can even take place when consent is given. This was seen in Lawrence, when a taxi driver took more money than he needed when a foreign student offered her open purse to pay for the fare. In Gomez, the appropriation took place when the manager consented to a colleague taking goods from a shop in return for payment by cheque. The cheques were stolen, however, and therefore had no value. The House of Lords therefore ruled that appropriation can take place, even with the consent of the owner. The case of Hinks raised the question of whether consent without deception could negate any charge of appropriation. The House of Lords ruled that even without deception, consent was no automatic defence to appropriation. Finally, later assumption of a right can occur when the defendant, for example, borrows something, but then later decides not to return it. The appropriation in this case occurs at the points where the defendant decides to keep the item.

Property - There are five types of property that can be stolen: money, personal property, real property, things in action and other intangible property. The first two types are very straightforward, including coins and notes (for money) and physical objects (for personal property). Real property refers essentially to land and buildings. Things in action allow the owner to enforce rights in law. Examples can include tickets for the theatre, copyrights and cheques, amongst others. Finally, other intangible property refers to other non-physical things which can be stolen. This can include export quotas, as seen in A-G of Hong Kong v Chan Nai-Keung. However, it doesn’t extend to knowledge of the questions on an exam paper, as seen in Oxford v Moss.

Some things cannot be stolen. Typically, these are plants and/or animals which would be found in the wild, or which haven’t been cultivated in any way. For example, wild mushrooms growing on someone’s land would not be considered as property which can be stolen. However, if the land owner had planted those mushrooms or had tended to them, then they would be considered property that could be stolen. Wild creatures, such as deer, can also be classed as property, but they cannot be ‘stolen’ if they are on a large estate. This is in contrast to animals who live in captivity in the zoo, who clearly show evidence of ‘ownership’. Electricity cannot be stolen either, although a separate offence does exist to deal with this issue.

Belonging To Another typically means in someone else’s possession or control. Obviously the owner of property has possession or control of it in most cases. However, they may transfer that possession or control to another party in some situations. Take, for example, the case of Turner, who stole back his car from the repair garage, before paying for the work done. The car was temporarily under the possession and control of the garage, so he could be found guilty of the theft of his own car! The Theft Act 1968 also states that that where a person receives property by mistake and is under an obligation to return the property a failure to restore the property will also amount to theft.

Intention to permanently deprive - In order to be found guilty of Theft, the defendant must intend to permanently deprive the other of the property that was stolen. An interesting way to look at this is to consider that if someone steals money, intending to replace that money later on, they can be still be found guilty. This is because the bank notes or coins they replace the originals with are not the same ones, they just have equal monetary value. The victim has still been permanently deprived of the original physical banknotes and coins.

Robbery is defined in section 8 of the Theft Act 1968. Essentially the offence is a theft, completed by the threat or use of force. The threat or use of force must be used in order to complete the theft, it cannot merely be coincidental.

So, what if a theft was completed and the force or the threat of force was used in order to make off with the property? Strictly speaking, that wouldn’t be a robbery, if the statute was to be interpreted literally. However, the courts have taken a more pragmatic approach here, making the offence of robbery more widely available to prosecutors. In the case of R v Hale, the defendants tied up the victim after the appropriation had taken place. However, the court decided that it should be up to the jury to decide whether or not the appropriation should be held to be a continuing act and so the defendants were convicted of robbery.

The force need only be minimal, as illustrated by R v Dawson and James, where the defendants pushed the victim off balance in order to steal his wallet. Also, the force used might not be directly on the victim themselves. In the case of R v Clouden, the defendant wrenched a shopping basket from the defendant’s hand. They argued that since they didn’t actually touch the victim, then there was no robbery. However the court decided otherwise, saying that their actions amounted to force on the victim.

Finally, the force used must be in order to steal. If, for example, the defendant knocked their victim unconscious, then decided to take their wallet, this would not be a robbery, since there was no intention to steal at the time that they applied the force.

Dishonesty was originally defined using a two part test in R v _____?: Ghosh
Did Ivey v Genting Casinos remove the objective or the subjective limb?: Subjective
In Pitham and Hehl, what did the defendants try to sell?: Furniture
True or false: knowledge of the questions on an exam paper are classed as property: False
In R v Turner, what object did the defendant steal, even though it could be said to be his already: Car
Under which section of the Theft Act 1968 is the offence of Robbery defined: 8
In R v Dawson and James, it was decided that force need only be _____?: Minimal