THEFT

INTRODUCTION

Section 1(1) of the Theft Act 1968 (TA 1968) creates the offence of theft. It states:

"A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it."

Theft is triable either way. The maximum punishment that can be imposed where a defendant has been convicted of theft following trial on indictment, was reduced from ten years to seven years by s26 of the Criminal Justice Act 1991.

Whilst s1(1) creates the offence, ss 2-6 provide complete or partial definitions of the elements of theft. As s1(3) provides:

"The five following sections of this Act shall have effect as regards the interpretation and operation of this section (and, except as otherwise provided by this Act, shall apply only for the purposes of this section)."

The actus reus of theft consists of (1) the appropriation of (2) property (3) belonging to another. The mens rea consists of the defendant acting (1) dishonestly, and (2) with the intention of permanently depriving the other of it.

THE ACTUS REUS OF THEFT

1. APPROPRIATION

The definition of "appropriation" is provided by s3(1) which states:

"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 it as an owner."

Thus although theft usually occurs when a person takes property belonging to somebody else, there are many other situations where it can arise. For example:

• A lends a book to D. If D sells or gives the book to X, or destroys the book, D will have appropriated it, and may therefore be guilty of theft. Only A, the owner of the property, has the right to do those things and D would therefore be treating the book as if he owned it.
•  D who finds a book in the street, and later discovers that it belongs to his neighbour, A, decides to keep it, would also be within s3(1). D came by the property innocently and later assumes the rights of an owner.

Note that a temporary appropriation can amount to theft: see Corcoran v Anderton (1980) in Handout on Robbery.

INNOCENT APPROPRIATION

Some protection is offered to the bona fide (in good faith) purchaser by s3(2) which provides:

"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 transferor's title, amount to theft of the property."

Where therefore, A buys stolen property from D, unaware that it is stolen, and he gives value for it, he will not be guilty of theft if he later discovers the truth and decides to keep the property; neither will he incur any liability for handling stolen goods.

APPROPRIATION BY CONSENT OR AUTHORISED ACTS

The House of Lords have held that a person can appropriate property even where the owner consents to the taking of property. See:

• Lawrence v MPC [1972] AC 626 which was, prior to R v Gomez [1993] (below) the main authority for this proposition.

The House of Lords have also made it plain that an assumption of any right of an owner will be an appropriation:

• R v Morris; Anderton v Burnside [1984] AC 320.

Property can be appropriated by authorised acts if they are dishonest:

•  R v Gomez [1993] 1 All ER 1.

2. PROPERTY

Section 4(1) provides a general definition of property for the purposes of theft, where it states:

"Property" includes money and all other property, real or personal, including things in action and other intangible property.

GENERAL

• Things in action are rights which can only be enforced by taking legal action, as they have no physical existence. For example, a man owes £ 500 to a company. This debt is a chose in action. It exists in the sense that the company could actually sell it to somebody else, who would then have the right to collect the money from the man.
•  Other examples of intangible property are copyrights, trademarks and patents. However, confidential information has been held to fall outside the definition of property:
• Oxford v Moss [1979] Crim LR 119.

LAND

Section 4(2) provides that land cannot be stolen except in three particular circumstances:

(a) Where a person is dealing with land in a special capacity, for example as a trustee (and makes a dishonest appropriation). (b) Where a person not in possession of the land severs something from it, for example crops or turf.
(c) Where a person in possession of the land as tenant appropriates a fixture or structure let with the land, for example by selling an outbuilding. (Note that in this situation it does not matter whether the object is actually removed from the land or not.)

PLANTS AND FLOWERS

The question of the extent to which plants constitute property for the purposes of theft is provided for by s4(3) which states:

'A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or other commercial purpose. For purposes of this subsection "mushroom" includes any fungus, and "plant" includes any shrub or tree.'

Simply stated, it is not theft to take mushrooms or flowers, fruit or foliage from a wild plant. It would however, be theft to take the whole plant, or to take anything for a commercial purpose. Thus it would be theft if mushrooms were picked in order to sell them later.

WILD ANIMALS

As regards animals in the wild, they are referred to in s4(4) which provides:

"Wild creatures, tamed or untamed, shall be regarded as property, but a person cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the carcass of any such creature unless either it has 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 the course of reducing it into possession."

Thus, animals in zoos, safari parks and domestic pets can all be stolen, even if they are appropriated having escaped from captivity. A wild animal, whether live or dead, cannot be stolen unless it has already been taken into possession by somebody else. Note however, that there are other statutes which create specific criminal offences for poachers.

3. BELONGING TO ANOTHER

THE GENERAL RULE

Section 5(1) provides an extended meaning for the phrase "belonging to another" where it states:

"property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest … "

Clearly this section does not require that property should be owned by the person from whom it is appropriated; mere possession or control is enough. For example, suppose that A lends a book to B and B is showing it to C when D snatches the book from C's hands and makes off with it. Here D has stolen the book from C (who has control of it), and B (who has possession of it), and A (who also has a proprietary interest, ie ownership, in it).

Provided he has the necessary mens rea, a person can steal his own property from someone with a lesser interest:

• R v Turner (No 2) [1971] 1 WLR 901.

OWNERLESS PROPERTY

A person cannot steal property that is not owned by another at the time of the appropriation. Property which has at one time been owned may become ownerless by abandonment. But abandonment is not something to be lightly inferred - property is abandoned only when the owner is indifferent to any future appropriation of the property by others; property is not abandoned because the owner has lost it and has given up the search. Consider the following situations:

(a) A man deliberately leaves his newspaper on a train and it is picked up by D who occupies the seat after him. The newspaper would not be regarded as property belonging to another as against D.
(b) A wife loses her wedding ring and long since given up the search but she will not have abandoned it.

The vital distinction between the two situations is that in example (a), the owner intends to relinquish his rights of ownership, and if property is ownerless it cannot be stolen. One should be cautious however, before concluding that a person has relinquished his rights of ownership:

• Williams v Phillips (1957) 41 Cr App R 5
• R v Woodman [1974] QB 758
• R v (Adrian) Small [1987] Crim LR 778.

PROPERTY SUBJECT TO A TRUST

Property subject to a trust is regarded under s5(1) as belonging to the beneficiaries as well as to the trustees. Special provision for charitable trusts where there are no beneficiaries (in the legal sense of persons owning a beneficial interest in the trust property) is made under s5(2), the consequence of which is that if trustees hold property on trust for charitable purposes, the Attorney-General, as a person who, though not a beneficiary, has the right to enforce such a trust, is someone to whom the property belongs , and the trustees may be convicted of theft if they dishonestly appropriate it.

PROPERTY RECEIVED FOR A PARTICULAR PURPOSE

Sometimes the recipient of property is obliged to deal with property in a particular way. Section 5(3) provides that it is theft if a person receives property under an obligation to deal with it in a certain way but instead uses it for his own purposes:

"Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to the other."

The defendant must be under a legal obligation to retain property or its proceeds in a separate fund. Further, the defendant must be aware that such an obligation exists. Whether an obligation exists or not, and if it does, the nature of the obligation, is to be determined by construing the express and implied terms of any contract between the parties:

§  R v Hall [1973] QB 496

§  R v Brewster (1979) 69 Cr App R 375

§  Davidge v Bunnett [1984] Crim LR 297.

Where a person receives money or other property for onward transmission to another there is clearly an obligation, to the person entrusted it for transmission, to retain and deal with it on its process in a particular way (to keep it or its equivalent separate and to hand it over):

§  R v Wain [1995] 2 Cr App R 660.

PROPERTY RECEIVED BY ANOTHER'S MISTAKE

If a person is given property by mistake it will still be treated as belonging to the person who gave it (subject to some complex civil law rules as to whether there is a civil obligation to return the property or not). Section 5(4) states:

"Where a person gets property by another's mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or 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 as an intention to deprive that person of the property or proceeds."

Cases under this provision include:

• Attorney-General's Reference (No 1 of 1983) [1985] QB 182
• R v Shadrokh-Cigari [1988] Crim LR 465
• R v Stalham [1993] Crim LR 310.

THE MENS REA OF THEFT

An appropriation of property belonging to another amounts to theft if it is done (1) dishonestly, and (2) with the intention of permanently depriving the other of it.

1. DISHONESTY

Dishonesty is dealt with in s2 but it only provides a partial definition.

DEFENCES

Section 2(1) sets out the situations where as a matter of law a person is not dishonest:

"A person's appropriation of property belonging to another is not to be regarded as dishonest- (a) 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 (b) 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 (c) … if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps."

If there is evidence of a belief which is covered by s2(1), the judge must tell the jury that as a matter of law they must acquit the accused unless the prosecution disproves his alleged belief beyond reasonable doubt.

OTHER CASES

Two further subsections touch on the question of dishonesty:

A defendant can be dishonest where he does not act with a view to making a gain for himself or another. It is sufficient that he acts with a view to causing loss to the owner, this being the effect of s1(2):

"It is immaterial whether the appropriation is made with a view to gain or is made for the thief's own benefit."

The other provision is s2(2) which states:

"A person's appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property."

This subsection meets a possible argument that an appropriation cannot amount to theft by virtue only of the fact that the defendant is willing to pay for the property.

DISHONESTY NOT COVERED BY s2

In cases where the defendant cannot avail himself of s2(1), and where there is nevertheless some debate as to whether or not his actions were dishonest, the matter should be left to the jury (or magistrates) who should apply the standard of ordinary decent people. In determining whether the prosecution has proved that the defendant was acting dishonestly, the Court of Appeal in R v Ghosh [1982] QB 1053 (a case involving s15 TA 1968) held that:

(1) A jury (or magistrates) must decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter.
(2) If it was dishonest by those standards, then the jury (or magistrates) must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest. It is dishonest for the defendant to act in a way which he knows ordinary people would consider to be dishonest.

Here, the Court of Appeal added a second, subjective test to that laid down in R v Feely [1973] QB 530. In R v Roberts (1987) 84 Cr App R 117, the Court of Appeal ruled that this second point need only be put to the jury in those cases where the defendant raised the special plea that he did not think he was being dishonest by his own standards.

2. INTENTION TO PERMANENTLY DEPRIVE

The defendant must have taken the property "with the intention of permanently depriving the other of it", although the owner does not have to be permanently deprived of his property. In the vast majority of situations the presence or absence of such a state of mind should be evident. The facts (the history of what the defendant did with the goods) will often have an important bearing on the proof of the defendant's intent. For example:

•  If D was found respraying the car which he took from V without his permission, the jury is likely to favour the inference that D's intent was to deprive V permanently of it. If on the other hand, D had taken V's lawnmower without permission, and left it in full view of V's house after he had used it to mow his lawn, the jury is likely to favour the inference that it was not D's intention to deprive V permanently of it.

In every case it is for the jury to determine, on the evidence, whether the defendant did so intend, so that where the evidence as to the defendant's intent is circumstantial the judge will instruct the jury that they may infer the intent from evidence pointing to that conclusion. Note two particular circumstances:

Even long-term or indefinite borrowing will not amount to theft:

•  R v Warner (1970) 55 Cr App R 93.

It is not a defence to claim that money that has been taken would have been repaid:

•  R v Velumyl [1989] Crim LR 299.

3. SPECIAL FORMS OF BORROWING

Section 6 provides that in certain circumstances, where a person disposes of or borrows property, that person is to be regarded as having had the intention of permanently depriving the other of it. Section 6 states:

"(1) 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.

(2) Without prejudice to the generality of subsection (1) above, where a person, having possession or control (lawfully or not) of property belonging to another, parts with the property under a condition as to its return which he may not be able to perform, this (if done for the purposes of his own and without the other's authority) amounts to treating the property as his own to dispose of regardless of the other's rights."

In R v Lloyd [1985] QB 829, (a case concerning a charge of conspiracy to steal) it was made clear that s6 should only be referred to in exceptional cases; for most purposes it would be unnecessary to go beyond s1(1). Reference should only be made to s6 where the defendant does not mean the other person permanently to lose the thing but has acted in a way which may fall within s6.

Section 6(1) deals with two separate situations where a defendant is deemed to intend to deprive the other permanently of the property:

(i) If his intention is to treat the thing as his own to dispose of regardless of the other's rights.
See:

• R v Lavender [1994] Crim LR 297.

(ii) Borrowing or lending for a period and in circumstances making it equivalent to an outright taking or disposal. For example, the use of a season ticket followed by its return to the owner.

Under s6(2) a person is to be treated as having an intention to permanently deprive the owner of his property if he parts with the property under a condition which he may not be able to perform. This is meant to provide for the case where a person takes another's property and pledges it with a pawnbroker without the owner's permission. Such a defendant will be deemed to have an intention to permanently deprive as it may be uncertain whether the defendant will be able to redeem the goods - the very fact that he has pawned them tends to show that he is lacking in funds.

 CASES ON THEFT

THE ACTUS REUS OF THEFT

1. APPROPRIATION

Lawrence v MPC [1972] AC 626.

An Italian student took a taxi ride for which the proper fare was about 50p. He offered the defendant a �1 note, but the defendant said more money was needed and proceeded to take a further £ 1 note and a £ 5 note from the student's open wallet. The defendant was convicted of theft and appealed unsuccessfully to the House of Lords. The defendant argued that he had not stolen the money because the victim had consented to its being taken by him. Viscount Dilhorne rejected this argument because the student only consented to the legal amount being taken and salso the defendant's contention that he should have been charged under s15 (obtaining property by deception) and not s1.

R v Morris, Anderton v Burnside [1984] AC 320.

Morris took two items from supermarket shelves and replaced the correct labels with ones showing lower prices. He took the items to the checkout, paid the lower price and was then arrested. Burnside took the label off a joint of meat and placed it on a more expensive joint. His act was discovered and he was arrested before he got to the checkout. Both defendants were convicted.

Lord Roskill explained that the switching of price labels amounted to appropriation because it was an assumption by the defendant of the owner's right to determine what price the goods were to be sold at. If accompanied by mens rea it would be theft. Lord Roskill envisaged appropriation as any assumption of any right of an owner which amounted to adverse interference with, or usurpation of, those rights.

R v Gomez [1993] 1 All ER 1.

The defendant, an assistant manager of an electrical goods shop, lied to the manager of the store that two cheques presented by a friend were valid, with the result that £ 16,000 worth of goods were supplied to a rogue. The defendant and the rogue were convicted of theft. The defendant's appeal was allowed by the Court of Appeal but rejected by the House of Lords.

Lord Keith stated that a person could be guilty of theft, contrary to s1(1) TA 1968, by dishonestly appropriating goods belonging to another if the owner of the goods was induced by fraud, deception or a false representation to consent to or authorise the taking of the goods. Lawrence makes it clear that consent to or authorisation by the owner of the taking by the rogue is irrelevant. It was also held that it was irrelevant that the taking of the goods in such circumstances could also constitute the offence of obtaining property by deception under s15(1) TA 1968. (Note: However, this is the more appropriate charge.)

2. PROPERTY

Oxford v Moss [1979] Crim LR 119.

A student borrowed an advance copy of an examination paper, copied the questions and then returned the paper. The Divisional Court held that he was not guilty of theft on the basis that information could not be stolen. Clearly the paper on which the exam questions were typed was property belonging to Liverpool University, but there was no evidence that the defendant intended to permanently deprive the University of it.

3. BELONGING TO ANOTHER

R v Turner (No 2) [1971] 1 WLR 901.

The defendant removed his car from outside the garage at which it had been repaired, intending to avoid having to pay for the repair. The Court of Appeal held that the car could be regarded as 'property belonging to another' as against the owner, since it was in the possession and control of the repairer. (Note: were the same facts to present themselves today, a charge of making off without payment contrary to s3 TA 1978 would be more appropriate.)

Williams v Phillips (1957) 41 Cr App R 5.

A householder put refuse out for collection by the local authority refuse workers. It was held by the Divisional Court that such refuse remained property belonging to the householder until collected, whereupon property passed to the local authority. Hence, refuse workers helping themselves to such property could be convicted of theft, on the basis that the property never became ownerless.

R v Woodman [1974] QB 758.

A sold all the scrap metal on certain disused business premises to B, who removed most of it but left some as being too inaccessible to be worth the expense of removal. The defendant then entered the premises to take some of this scrap and was held to have been rightly convicted of its theft. A continued to control the site and his conduct in erecting fences and posting notices showed that he intended to exclude others from it.

R v (Adrian) Small [1987] Crim LR 778.

The defendant was charged with theft of a car. He claimed that he thought that it had been abandoned by the owner because it had been left for over a week with the keys in it. The Court of Appeal ruled that he could not be guilty of theft if he had an honest belief to that effect, as if the car had been abandoned, the owner would not be 'deprived' of it.

R v Hall [1973] 1 QB 496.

The defendant was a travel agent who had taken money for securing airline tickets for customers and not booked them. The defendant paid all the monies into the firm's general trading account. His business collapsed and the money was lost. He was convicted of theft of the money when the tickets failed to materialise. The Court of Appeal however, held that he was not under an obligation under s5(3). Although the defendant had a general obligation to fulfil his contract he did not have to deal with those specific notes and cheques in a particular way. He was free to use it as he pleased, and was therefore not guilty of theft when he was later unable to provide the tickets required. Edmund-Davies LJ stated:

"… when a client goes to a firm carrying on the business of travel agents and pays them money, he expects that in return he will, in due course, receive the tickets and other documents necessary for him to accomplish the trip for which he is paying, and the firm are "under an obligation" to perform their part to fulfil his expectation and are liable to pay him damages if they do not. But, in our judgment, what was not here established was that these clients expected them to "retain and deal with that property or its proceeds in a particular way," and that an "obligation" to do so was undertaken by the appellant.

We must make clear, however, that each case turns on its own facts. Cases would, we suppose, conceivably arise where by some special arrangement (preferably evidenced by documents), the client could impose upon the travel agent an "obligation" falling within section 5(3). But no such special arrangement was made in any of the seven cases here being considered."

R v Brewster (1979) 69 Cr App R 375.

It was held that an insurance broker could be guilty of theft of insurance premiums collected by him for which he had to account to the insurance company. A determining factor was that the contract between the defendant and the insurance company stated that at all times the premiums were to be the property of the company.

Davidge v Bunnett [1984] Crim LR 297.

The defendant shared a flat with several other people who gave her cheques on the understanding that a communal gas bill would be paid with the proceeds. In fact, the defendant spent the proceeds on Christmas presents and left the flat without giving notice. The Divisional Court held that the defendant was under a legal obligation to use the proceeds of the cheques in a particular way (for the discharge of the gas bill) and therefore they were property belonging to another by virtue of s5(3). This was therefore theft.

R v Wain [1995] 2 Cr App Rep 660

The defendant, by organising events, raised money for a company which distributed money among charities. He paid what he had raised into a special bank account and thereafter, with the consent of the company, into his own bank account. He then dishonestly dissipated the credit in his account. The Court of Appeal held that he thereby appropriated property belonging to another because the jury were entitled to find that he was a trustee of the money collected and had therefore received it subject to an obligation to retain its proceeds (the successive bank accounts) and deal with them in a particular way (to hand them over to the company).

A-G' Reference (No 1 of 1983) [1985] QB 182.

The defendant, a policewoman, was overpaid. The money was credited to her bank account as a result of an error by her employer. The evidence suggested that having discovered the overpayment, the defendant simply allowed the money to remain in the account. She was charged with theft of the sum overpaid but the trial judge directed the jury to acquit. The question of whether a charge of theft was possible in such a situation was referred to the Court of Appeal.

It was decided that provided there was sufficient evidence of mens rea, a charge of theft could succeed in such a situation. The defendant had got property (the excess payment) by another's mistake and was under an obligation to restore the debt (a chose in action) to her employer. Further, Lord Lane CJ suggested that s5(4) only started to operate from the moment the defendant became aware of the overpayment.

R v Shadrokh-Cigari [1988] Crim LR 465.

The defendant, who was the guardian of a child to whose bank account approximately £ 286,000 had been credited in error instead of £ 286, persuaded the child to sign authorities instructing the bank to issue drafts credited to him. The defendant spent most of the excess money before he was discovered, and was convicted of theft of the drafts on the basis that they remained property belonging to another, namely the issuing bank.

The Court of Appeal expressed the view that the conviction for theft was sustainable on two grounds: (1) under s5(1) as the bank still had an equitable interest in the drafts; therefore the drafts could still be regarded as property belonging to another; and (2) under s5(4) as the defendant had obtained the drafts as a result of the bank's mistake, and was under an obligation to restore the property or its proceeds.

R v Stalham [1993] Crim LR 310.

The defendant was notified that he would be receiving a pay rise of �4,080, payment to be in instalments. A transfer of the total sum was made to the defendant in error, and he was told that a stop would be put on the transfer, and a cheque for the first instalment issued. The cheque was issued, but a stop was not put on the transfer. When queried by a wages clerk, the defendant expressed the view that he believed it to be a tax rebate. The defendant signed a blank cheque which, with his brother's involvement, was subsequently made out to a woman who paid it into her account and gave the proceeds of the cheque to the defendant's brother. On a charge of theft, the defendant had contended that the money had not been property belonging to another. He was convicted and appealed.

The appeal was dismissed. The Court of Appeal held that it was bound to apply its previous decision in A-G's Reference (No 1 of 1983). As in that case, the property (the chose in action represented by the right to draw on the account) had been transferred as the result of a mistake by the employer. The result was that it remained, as against the employee, property belonging to another, because there was a legal obligation to make restoration, thus the provisions of s5(4) could apply.

THE MENS REA OF THEFT

1. DISHONESTY

s2(1)(a) - BELIEF IN LEGAL RIGHT If D mistakenly believes that he owns V's umbrella, his appropriation of it would not be dishonest whether his mistake, or ignorance, is of fact or law. Moreover, D will not commit theft where he appropriates V's umbrella in the belief that it belongs to X on whose behalf he is acting. Similarly, D would have a defence if he took a bicycle belonging to V, in order to recoup a debt, under the erroneous belief that the law permitted debts to be recovered in this way. The D's belief merely has to be honestly held, it does not have to be reasonable. As with all subjective tests, the more outlandish the D's honest belief is, the less likely he is to be believed.

s2(1)(b) - BELIEF IN THE OTHER'S CONSENT This might apply where D's car has run out of petrol, and D takes a can of petrol from his next-door neighbour V's garden believing that V would have consented had he known. Again the test is subjective. But D must believe not only that V would have consented to the appropriation but that V would have consented to the appropriation in the particular circumstances. D may believe that his next-door neighbour would consent to his appropriating a pint of milk from his doorstep when D himself had forgotten to leave an order for the milkman; but may believe that his neighbour would not consent to D's appropriating the milk in order to sell it at a profit to a thirsty hitch-hiker who is passing by.

s2(1)(c) - BELIEF THAT PROPERTY HAS BEEN LOST Again the test for the D's belief is subjective. As regards the question of what might be required by taking reasonable steps to discover ownership will depend partly on the identification available, the location in which it is found, and the value of the property. A person finding a �10 note in the street may well come within this subsection, unless he has just seen it fall from the pocket of V who is walking in front of him. Similarly, if D finds a suitcase containing �1m in the street one would expect him to make considerable efforts to locate the owner. It should be kept in mind that s2(1)(c) is concerned with what the D views as reasonable steps.

S2(2) - WILLINGNESS TO PAY For example, where D sees V's newspaper poking out of his letterbox, knowing that he would not wish to sell it, pulls out the newspaper, and leaves its price on V's doormat, D could be guilty of theft.

R v Ghosh [1982] QB 1053.

The defendant was a consultant at a hospital. He falsely claimed fees in respect of an operation that he had not carried out. He claimed that he thought he was not dishonest by his standards because the same amount of money was legitimately payable to him for consultation fees. The judge directed the jury that they must simply apply their own standards. He was convicted of an offence contrary to s15 TA 1968 (which uses the same concept "dishonesty" and appealed against his conviction). The appeal was dismissed by the Court of Appeal. Lord Lane CJ stated:

"In determining whether the prosecution has proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails.

If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest. In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it. It will be obvious that the defendant himself knew he was acting dishonestly. It is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did. For example, Robin Hood or those ardent anti-vivisectionists who remove animals from vivisection laboratories are acting dishonestly, even though they may consider themselves to be morally justified in doing what they do, because they know that ordinary people would consider these actions to be dishonest."

2. INTENTION TO PERMANENTLY DEPRIVE

R v Warner (1970) 55 Cr App R 93.

The defendant took a tool-box to annoy the owner but panicked and hid it when the police were called. He claimed that he intended to replace it as soon as he could do so undetected, but the judge directed the jury that an intention to keep property indefinitely could amount to theft. The Court of Appeal quashed the conviction. (Note: presumably in practice a jury simply might not believe such a story.)

R v Velumyl [1989] Crim LR 299.

The defendant had taken money from his employer's safe and claimed that he intended to pay it back after the weekend. The Court of Appeal held that he had not intended to return the exact coins and notes, and that therefore he was properly convicted of theft. (Note: in such cases it would be far better for the defendant to contend that he was not dishonest given his intention to replace the money with an equivalent fund.)

s6(1) - INTENTION TO USE OR DISPOSE OF THE GOODS
* Where D abandons property belonging to another he may be deemed to intend to permanently deprive that other of it, if the circumstances are such that there is little likelihood of the owner ever having the property returned to him. For example, D takes V's book and leaves it in a dustbin or on a park bench. D may hope that it is returned to V, but it is likely to be regarded as a disposal regardless of V's rights.
* D may be deemed to have an intention to permanently deprive where he borrows another's property for a period and in circumstances amounting to an outright taking. The commonest example given is that involving a season ticket: V owns a season ticket entitling him to enter a football match for 21 home league games and D takes the ticket at the beginning of the season, uses it to attend the games, and returns it to V at the end of the season. Clearly V gets his ticket back, but the borrowing of it by D has taken the 'value' out of it, and such conduct would amount to theft by virtue of s6(1). (Note: Where D uses the ticket to get into one of the 21 games, he may be charged with obtaining services by deception contrary to s1(1) TA 1978.)

R v Lavender [1994] Crim LR 297.

The defendant removed doors from one council property undergoing repairs and used them to replace damaged doors at another council property. It was held that this was a "disposal" under s6(1) because the defendant intended to treat the doors as his own, regardless of the council's rights".