CRIMINAL LAW UPDATE
3 Mar 2021
Section 1 of the Theft Act 1968 (T.A) provides that “a person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and ‘theft’ and ‘steal’ shall be construed accordingly.” It is important to ensure that the offence of theft is also not to be confused with robbery or burglary offences as these are separate offences with separate penalties.
As explained in our previous blog “The Actus Reus of the Theft Act 1968”, the actus reus of a crime is the physical element of committing a crime and the mens rea is the mental element, (for instance, the intention or knowledge of wrongdoing). The mens rea of theft is the “dishonest intention to permanently deprive”. In this blog, we will be analysing the last two elements of theft which makes up the mens rea of the offence.
The first element of mens rea of theft is dishonesty. But what is considered dishonest? Have a quick think about these scenarios and whether you believe them to be dishonest or not?
- Dan takes a pen from the stationary cupboard at work and plans to use it at home.
- Fred receives an overpayment of 50 pence in change at his supermarket and keeps it.
- Jane “borrows” £5 from the petty cash tin at work and repays the money the next day.
You may have differing views as to whether the defendant was dishonest in all or any of these scenarios. Determining dishonesty is a subjective test which is different to each individual which is a problem for many juries. The first thing for the jury to consider would be section 2 of the T.A. In sections 2(1) and 2(2) of the T.A states that:
A person’s appropriation of property belonging to another is not to be regarded as dishonest—
- if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or
- if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or
- (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.
A person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.
Section 2(2) is not saying that you are dishonest despite showing a willingness to pay, but it is saying that a willingness to pay does not automatically mean that the defendant is not dishonest.
However, these subsections do have their limitations as they only cover extremely specific situations where there will be a lack of dishonesty. When sections 2(1) and 2(2) do not determine whether the defendant was dishonest, the jury can be referred to a test known as the ‘Ivey Test’ to help them resolve this issue.
The ‘Ivey Test’
The Ivey v Genting Casinos  3 WLR 1212 case established the dishonesty test for Theft. The Ivey test replaced the Ghosh test (from R v Ghosh  QB 1053). The Ghosh test required the jury to ask themselves:
- Was what the defendant did dishonest according to the standards of the reasonable and honest people?
- If so, did the defendant realise that reasonable and honest people would regard what he did as dishonest?
The Ghosh test was highly criticised over the years and critics believed that there should be more guidance and that juries might apply the test in different ways. This issue was solved in the Ivey case by the Supreme Court in a civil matter. In this case, the Supreme court removed the second limb (did the defendant realise that reasonable and honest people would regard what he did as dishonest) of the Ghosh test. Therefore, the defendant is judged on the basis of his actual knowledge or belief as to the facts.
It is important to remember that in many cases, the issue of dishonesty will be clear. Section 2(1) of the T.A will have no relevance in the majority of cases and the Ivey case will not be used in every case to determine dishonesty as it should only be used if the jury needs guidance. If dishonesty is apparent on the facts of the case, there is no need for the test.
Intention to permanently deprive.
The last element of mens rea of theft is that the defendant must also have the intent to permanently deprive the other of the property he has appropriated. Usually the words ‘intention to permanently deprive’ will be given their ordinary meaning.
The case R v Velumyl  Crim LR 299 confirmed that if person A takes money from B (in this case an employer) intending to repay it, there definitely is an intention to permanently deprive. Person A always intended to deprive the owner (B) of the particular notes and coins that A took. Again, the fact that A intended to pay the owner back an equivalent sum is relevant only to the question of dishonesty.
Section 6 Theft Act 1968
Section 6(1) of the T.A states:
- A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.
The provisions set in section 6(1) shows that if someone appropriates property and treats the thing as his own to dispose of regardless of the other’s rights, this is sufficient enough to establish this element of mens rea.
Section 6(1) also deals with ‘borrowing’ scenarios. For example, imagine you have a friend who has a ticket to a FA cup final game. He leaves the ticket lying around and you take it intending to return it after the game. Understandably, your friend complains to the police who charge you with theft. Your defence will probably be that you had no intention of permanently depriving your friend of the ticket as you were just borrowing it. This defence is unlikely to succeed as under section 6(1) can be used to argue that the borrowing was for a period (until the end of the match) and the value of the ticket was used up when it was returned. Due to the value of the ticket now being worthless, this means that rather than borrowing, you have outright taken the value of the ticket and could possibly be convicted of theft.
However, in the case R v Lloyd  QB 829 it was confirmed that section 6(1) should only be referred to in exceptional cases only. In Lloyd it was determined that if an item was borrowed and there is still value attached to the property once returned, it will not amount to theft.
How can we help?
If you have been charged with the offence of theft, we are here to help. We can provide our expert defence team to represent you in court and help you avoid a potentially damaging criminal record.
We will look at all the facts of the accusation and decide what defence against theft is the best defence for your case. This will also include everything from the facts of the case all the way to whether your actions actually amounted to a criminal act Our team of litigators and advocates have many years of experience analysing complex factual scenarios and applying them to often novel areas of law ensuring we get the best possible results for our clients. Do not hesitate to call us on 07739795433 or email us on firstname.lastname@example.org to get expert legal advice for you and your case.