Theft — SQE1 FLK2 Criminal Liability

Your client's van has been towed to a compound, lawfully, and the company will release it on payment of £250. That night he climbs the fence, finds the keys hanging in the unlocked office, and drives his own van out. No payment, no note. He is charged with theft of the van, and his answer is the obvious one. A man cannot steal what already belongs to him. Is he right? No.

He can be convicted of stealing his own vehicle, and understanding why takes you through the middle of this offence. This is Theft: one sentence in one section, five elements, and every one of them has to be proved. Keep your client and his van in mind. We are coming back for him.

Here is the route. The five elements in order. Appropriation, and why consent makes no difference to it. Property, and the things that are not property at all. Belonging to another, which is where your client's van sits. Dishonesty, and the test that changed. And finally the intention of permanently depriving, where most defendants who lose the other four still win.

Start with the section, because it is the whole offence in one sentence. Section 1(1) of the Theft Act 1968. A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. Five elements. All five must be proved, and if any one of them fails there is no theft, however badly the defendant behaved.

It is an either-way offence, and s 7 of the Act fixes the maximum on indictment at seven years' imprisonment. In a problem question, take the five in order and do not skip one because it looks obvious.

Element one, appropriation. Section 3(1): any assumption of the rights of an owner amounts to an appropriation. The word doing the work is any. There is no minimum level of interference. It need not be for your own benefit. And it does not matter which of the owner's rights you assume, so long as you assume one of them.

That is why switching the price labels on supermarket goods is an appropriation. The defendant assumed the owner's right to sell at the correct price. He did not assume all the rights of an owner, and he did not need to. Appropriation is not an all-or-nothing idea.

Now the point that surprises people. Consent does not prevent an appropriation. Lawrence v Metropolitan Police Commissioner, 1972. An Italian student who had just arrived in London and spoke little English took a taxi from Victoria Station. The correct fare was about 50p. He offered £1. The driver said it was not enough and helped himself to a further £6 from the student's open wallet.

The House of Lords upheld the conviction. An appropriation may occur even where the owner consents, because s 1(1) says nothing about consent, and the omission was deliberate. The prosecution does not have to prove that the owner objected. The House confirmed the same thing again in 1993, in a case where a shop assistant persuaded his manager to accept a stolen cheque in payment for goods.

And it goes further still. R v Hinks, 2000. The defendant befriended a man of limited intelligence and received substantial gifts of money from him. The gifts were valid in civil law. The House of Lords held there was still an appropriation: acquiring an indefeasible title to property is capable of amounting to one. So a perfectly good gift can be the actus reus of theft.

One more limb of the section. Section 3(1) also covers the person who came by property innocently, without stealing it, and later assumes a right to it by keeping or dealing with it as owner. Borrow a friend's mower lawfully, and sell it a month later, and the appropriation is the sale. The lawful start does not protect the later act.

Element two, property. Section 4(1): money and all other property, real or personal, including things in action and other intangible property. A thing in action is a right you enforce through the courts, so a bank account in credit is property. A bookkeeper who moves money out of the employer's account appropriates part of that credit balance.

But some things are not property, and examiners love them. Information is the big one. Oxford v Moss, 1979. A civil engineering student got hold of the proof of an examination paper he was about to sit, read it, and put it back. He was charged with stealing the confidential information, not the paper.

The Divisional Court held that confidential information is not intangible property within s 4(1), so it could not be stolen. Note the name, because it is often mis-cited. It is Oxford v Moss, a prosecutor's appeal by way of case stated. The prosecutor comes first, so it never takes an R v prefix.

Two riders on that. The physical medium is property, so taking the memory stick or the printed document is theft of that thing. And where the defendant copies data and leaves the original behind, there is no intention permanently to deprive in any event.

Land is next. As a general rule you cannot steal land, and s 4(2) gives three exceptions. A trustee or personal representative who appropriates it in breach of the confidence reposed in him. A person not in possession of the land who appropriates something forming part of it by severing it, or after it has been severed. And a tenant who appropriates a fixture or structure let to be used with the land.

Then the wild things. Under s 4(3), a person who picks mushrooms growing wild, or flowers, fruit or foliage from a plant growing wild, does not steal what he picks. Not unless he does it for reward, for sale, or for another commercial purpose. So blackberries for your own kitchen, no theft. The same blackberries picked to sell at a market, theft.

Under s 4(4), wild creatures cannot be stolen unless they have been tamed or are ordinarily kept in captivity. A wild rabbit in a field, no. A pet rabbit or a zoo animal, yes. And a corpse is not property, though body parts that have been subjected to skill and work, such as preservation or dissection, can acquire attributes that make them property.

Element three, belonging to another, and this is where your client's van sits. Section 5(1): property belongs to any person having possession or control of it, or having in it any proprietary right or interest. Read that again. Possession or control is enough on its own. Ownership is not required.

Which means you can steal your own property. R v Turner (No 2), 1971. The defendant took his own car to a garage for repair, came back at night and drove it away without paying. Convicted of theft. The car belonged to the garage, because the garage had possession and control of it. The compound holding your client's van is in exactly that position.

Hire purchase works the same way from the other end. The finance company remains the owner until the final instalment is paid. So a hirer who sells the car before then appropriates property in which the company has a proprietary right. He has possession. He does not have ownership.

Section 5(3) adds a further route. Where you receive property from another and are under an obligation to deal with that property, or its proceeds, in a particular way, it still belongs to the other. Money handed over by flatmates specifically to pay the gas bill, and spent on Christmas presents instead, is theft.

But no obligation means no s 5(3). A travel agent paid client deposits into his general trading account and never provided the flights. Not guilty of theft: he was under no obligation to retain and deal with those particular sums. Look for the obligation before you reach for the subsection.

And s 5(4) covers property got by another's mistake. Where you get property by another's mistake and are under an obligation to make restoration, the property is regarded, as against you, as belonging to the person entitled to restoration. The overpaid salary you spend knowing it is not yours is the standard example.

Element four, dishonesty, and it is the one that causes most difficulty. The Act never defines it. What it does instead, in s 2(1), is tell you three situations in which an appropriation is not to be regarded as dishonest. Three, and only three.

A belief that you have in law the right to deprive the other of the property, on your own behalf or on behalf of a third person. A belief that the other would consent if they knew of the appropriation and the circumstances of it. Or a belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

Two riders. The belief has to be genuine. It does not have to be reasonable, and it does not have to be right. A mistaken view of your legal rights still works. And the third one is expressly unavailable where the property came to you as a trustee or a personal representative. A solicitor administering an estate cannot rely on it.

Note also s 2(2). An appropriation may be dishonest even though the defendant is willing to pay for the property. Leaving cash on the counter for something the owner would never have sold you is no answer.

Beyond s 2(1) you need the general test, and it changed. R v Ghosh, 1982, governed dishonesty for over thirty years and had two stages. First, was the conduct dishonest by the ordinary standards of reasonable and honest people? Second, did the defendant realise that reasonable and honest people would regard it as dishonest? If he did not, he was acquitted, however bad it looked.

That second stage has gone. Ivey v Genting Casinos, 2017. The court first ascertains the defendant's actual state of knowledge or belief as to the facts. A belief need not be reasonable to count, though how reasonable it is bears on whether it was genuinely held. It then asks whether, on the facts as he believed them to be, his conduct was dishonest by the standards of ordinary decent people.

There is no third question about whether he personally appreciated that ordinary people would call it dishonest. Ivey was a civil case, so for a time it was unclear whether trial judges could depart from Ghosh. A five-judge Court of Appeal settled it in 2020. Apply Ivey. Do not describe the position as unsettled, and do not let a defendant escape by saying he did not think it was dishonest.

Element five, the intention of permanently depriving, and this is where cases are won. It does not mean the defendant meant to keep the thing forever. Section 6(1) says he is treated as having the intention if he means to treat the thing as his own to dispose of regardless of the other's rights. Borrowing counts only if it is for a period and in circumstances making it equivalent to an outright taking.

So try one. A man reaches into a woman's handbag in a cinema, moves her purse about looking for anything worth taking, finds nothing he wants and leaves it where it was. Theft of the purse and the cards inside it? No. At the moment of the appropriation he had not decided to take anything at all. Conditional intent is not the intention the section requires, and the charge is attempted theft.

Now a harder one. A company manager takes £1,050 from his employer's safe and lends it to a friend, fully intending to put the money back when the friend repays him. Does the intention to replace it save him? No. He could only ever return different notes and coins, not the ones he took. An intention to repay may bear on dishonesty, but it does not negative the intention permanently to deprive.

Borrowing that goes far enough does count, and the test is whether the thing comes back drained of its value. Films removed overnight so copies could be made, and returned intact, were not stolen: all their goodness and virtue was still in them. Return a season ticket after the last match, and the answer is different.

Finally s 6(2). Where you part with property under a condition as to its return which you may not be able to perform, you are treated as having the intention. Pawning someone else's guitar is the classic case. And so is taking a man's van and offering to sell it back to him. Making the return conditional on payment is treating the thing as your own to dispose of regardless of his rights.

A word on how SQE1 tests this. You will not be asked to recite a case name or a section number. You get a scenario, five answers, and one instruction: pick the best. What the names buy you here is a shortcut to the right element, because each of the leading cases fixes one of the five.

If you keep only three. Lawrence v Metropolitan Police Commissioner, because consent does not prevent an appropriation. Oxford v Moss, because information is not property, and because it is a prosecutor's appeal and not an R v case. And Ivey v Genting Casinos, because it removed the second limb of Ghosh and left a defendant's own opinion of his honesty worth nothing.

Four traps. One: check that the thing taken is property at all. Confidential information is not, a corpse is not, land generally is not, and wild plants and creatures are not unless the exceptions bite. If it is not property within s 4, there is no theft however dishonest the defendant was.

Two: possession or control is enough for belonging to another, so the owner can be the thief. Three: a defendant who says he intended to put the money back is talking about dishonesty, not about the intention permanently to deprive. Those are different elements, and the answer options will offer you the wrong one.

Four: do not apply Ghosh. A defendant who did not personally think his conduct dishonest is still dishonest if ordinary decent people would say so on the facts as he believed them. Then a habit for the exam. Name the element that is really in issue before you pick, because four of the five are usually obvious and the question turns on the fifth.

Quick check. A man takes £200 from the till of the restaurant where he works. He knows the owner does not allow it and would refuse if asked. He has done the same twice before and repaid on payday, and intends to do so again. Interviewed, he says that taking money you fully intend to repay is not dishonest at all. How should the court decide whether he was dishonest?

Three candidate answers. One: acquit him if he did not himself realise that ordinary decent people would call his conduct dishonest. Two: ask only whether ordinary people would call it dishonest, whatever he believed. Three: find what he actually knew or believed, then apply the standards of ordinary decent people. Pause here if you want a moment.

The answer is three. The court first finds his actual knowledge or belief as to the facts. It then asks, objectively, whether his conduct was dishonest by the standards of ordinary decent people. His intention to repay is part of the facts as he believed them, so it goes into the first stage. His opinion that this is not dishonest does not.

Option one fails: that is the discarded second limb of Ghosh. Option two fails because it drops the first stage. The objective standard applies to the facts as the defendant believed them, not as they were. And note s 2(2): an appropriation can be dishonest even where the defendant is willing to pay.

Five things to take away. One: appropriation is any assumption of any right of an owner, and consent does not prevent it. Two: check the thing is property, because information, corpses and wild things are the standing exceptions. Three: possession or control is enough for belonging to another, which is why your client can steal his own van out of that compound.

Four: s 2(1) gives three situations, and only three, where an appropriation is not dishonest. Beyond them the test is the defendant's actual beliefs, measured against the standards of ordinary decent people. Five: an intention to give back an equivalent is not an intention to give back the thing. And rummaging to see whether anything is worth taking is not the intention at all.

Next time, Robbery, Burglary and Related Theft Offences.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.