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Redefining the Determination of 'Theft'

Image © Paramount Pictures

About The Author

Helen Pearson (Guest Contributor)

Helen is a third year law student at Durham, whose interests in the subject include the European Union and criminal law. Outside of her studies she takes part in the Durham University Pro Bono Society’s Schools Outreach program and enjoys volunteer work, helping various organisations. Her hobbies include crafting, yoga, dance and playing various instruments, most notably flute and piano.

To most people, the concept of theft seems a simple thing: you are guilty if you deliberately take something from somebody else, with no intention of giving it back. The law in this area is more complex, introducing the concept of “dishonestly” in an attempt to protect those who honestly thought they were entitled to take the property. This raises the question: when is someone acting dishonestly?

Dishonesty

The Theft Act 1968 section 1(1) provides

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

Whilst some aspects of this are easy to understand, such as ‘permanent deprivation’ or ‘belonging to another’, the requirement of ‘dishonestly’ has been fiercely debated.

In section 2 of the Theft Act 1968, the problem can be seen immediately: there is no positive description of what ‘dishonestly’ means. Instead, three situations are provided for when an appropriation is not considered dishonest:

1. 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) (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.

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

The problem with this section is that it only requires the defendant to show a belief that he had the right, or would have had consent. He does not need to show that this belief was reasonable to have, allowing the defendant to be acquitted, even when no-one but himself would have held this belief. 

To rectify this problem, the courts developed the ‘Ghosh test’.

The Ghosh Test

In R v Ghosh [1982] EWCA Crim 2counsel for the defendant argued that when considering whether he acted dishonestly, a subjective test should be used. This means that a defendant would only be guilty if he believed himself to be acting dishonestly; a defendant who simply gave no thought as to whether or not his conduct was dishonest, would therefore escape liability. This test would allow the “Robin Hood” scenario put forth in R v Green and Greenstein (1975) 61 Cr. App. R. 296, where someone who believed they were acting in the interests of the ‘greater good’ would escape conviction.

The Court rejected the case put forward for the defendant in favour of a different test for dishonesty. The test they created was twofold:

  1. Were the actions of the defendant dishonest according to the standards of reasonable and honest people?
  2. Did the defendant realise that his actions were dishonest according to those standards?

This provides a test that is both objective and subjective and both parts must be satisfied.

The problem with this test falls in the objective part; what are the standards of reasonable and honest people? In each case this question will be considered by the jury, so will be entirely changeable. Geary (Roger Geary, Essential Criminal Law, Cavendish Essential Series (Taylor and Francis Group, 1998)) has argued that this concept changes depending on each person’s cultural and social concepts, so it is difficult for a jury to come to a unilateral conclusion. In more socially diverse areas this standard will be even more difficult to qualify and will lead to very different results than in less socially diverse areas, allowing discrepancies that depend upon where in the country the case is tried.

Researchers, Finch and Fafinski conducted a study of 15,000 people, to determine whether there was a clear consensus on whether certain courses of conduct are dishonest. The scenarios put to the groups contained many morally questionable scenarios, some of which the Government may have intended to be covered by the law on theft.

Some of the scenarios looked at in the survey are contained in the table below:

Conduct put before the people questioned

Percentage of people who categorised the conduct as dishonest

Buying goods online using a colleague’s shopping account

98.4

Picking up a lottery ticket in the street and claiming if it wins

66

Downloading music for free online

58.3

Carer persuades elderly patient to change her will in her favour

42.9

Picking up and keeping money found lying in the street

31.6

Looking at these results, it is clear that there is no consensus on what constitutes a dishonest act. As a jury needs to agree what constitutes dishonesty, each scenario would need to be above 11/12 or 91.6% in this survey for it to be considered a moral consensus that would be consistently found. This is clearly not the case in most of the scenarios above.

As two of the main concepts that underpin the criminal law are equality and certainty, this is fundamentally unacceptable.

Possible reform

There have been several different suggestions made for reforming dishonesty to make it more certain.

The first is to remove the objective test entirely, making the test subjective. Griew (The Theft Acts 1968 and 1978 (7th edn, 1995)) argues that defining dishonesty by regard to “honest men” is a circular argument, which allows for inconsistent verdicts due to the lack of judicial direction, uncertainty, and long, expensive trials. In this formulation, the defendant who believes he was acting within his rights and in an honest manner will not be liable for the offence of theft.

This test would cause its own problems by allowing those with a different moral code to be acquitted, and how would it be proved that they do believe in a different set of morals? As a result, the law in this area would be even less clear and would open the doors for those who steal out of necessity or as a modern day Robin Hood. It would give a blank slate to those who follow a different moral code to perform the act of theft without fear of retribution, knowing that they will be acquitted. Griew argues that if the defendant believes his actions are morally correct, he is also likely to believe that society would agree with him, leading to an inevitable acquittal.

A second suggestion for reform is to return to the definition given in the Larceny Act 1916 s1(1) as discussed by Haynes. This provided that someone was acting dishonestly when they acquired property “fraudulently and without a claim of right”. It is easy to discover if someone has a “claim of right”, but it is more difficult to discern what is meant by “fraudulently” due to the reform of the fraud offences in the Fraud Act 2006 ss1-10. This suggestion would therefore be unworkable unless “fraudulently” could be redefined in light of theft. The normal usage of the word ‘fraud’ implies that there is a victim who has been deceived. To rewrite the law on theft to include this word could cause confusion, as no deception is needed for theft.

A New Suggestion

Based on the definition in the Larceny Act 1916, this article is arguing that a different test for the mens rea of theft should be used.

Starting with a removal of the term “fraudulently”, so as not to confuse the offences of theft and fraud, the first part of the test would then be whether someone had a claim of right. This would be a very simple test to satisfy. This was the original intention for the meaning of dishonesty when the Criminal Law Revision Committee was looking at the reform of theft (1999 Law Com. CP No. 155, at para. 5.5.)

Due to the complexities of trade, it would be necessary to add a second clause to the test, which would provide an exception to this rule when the defendant was given express or implied permission by the owner to appropriate the property. Under this law a shop would be able to give permission for customers to pick up property within the shop, but not to remove it from the shop or alter it in any way (such as changing price labels as in R v Morris, Anderton v Burnside [1984] AC 320).

Looking at the other “dishonest” scenarios in Finch and Fafinski’s survey:

  • Buying goods online using a colleague’s shopping account: there is no claim of right, so the defendant would have to prove that the colleague had given him permission to do so.
  • Picking up a lottery ticket in the street and claiming if it wins: there is no claim of right, so the defendant would have to prove that the owner of the ticket had given them permission to do so, which would be unlikely. Handing the ticket into the police without claiming on it is the desired course of action, so this would protect the defendant from being liable for theft. If it is possible for the police to find the original owner, the ticket can be returned to them. Where it is not possible to find the owner, the law could provide that it be returned to the finder, as an incentive for coming forward.
  • Downloading music for free online: there is no claim of right and it is unlikely the owners of the material (the artist) could be considered to have given permission. However, if the artist had provided the music for free online, or provided a link so people could do so, this could be considered as them giving permission, so no crime would have been committed.
  • Carer persuades elderly patient to change her will in her favour: there is no claim of right, but it is up to the carer to prove that the patient gave permission for them to have the money. This scenario may cause problems due to undue influence, so the bar for evidence must be set very high. When looking at whether permission was given the mental capacity and awareness of the owner should be taken into account in deciding whether or not the permission was valid.
  • Picking up and keeping money found lying in the street: there is no claim of right and it would be almost impossible to prove that they had permission of the owner. Whilst this would make them liable, it is suggested that the Crown Prosecution Service (“CPS”) should create prosecution guidelines, ensuring that those who pick up less than a certain amount would not be prosecuted in order to stop frivolous cases being brought over tiny amounts of money.

As with the lottery ticket scenario, if it is handed to the police then they would no longer be liable for the offence. If the police could trace the owner then it would be returned to them, but if the police were unable to find the owner then the finder should be entitled to keep it. It is suggested that the police have (for example) three months from when it is handed in to find the original owner, after which it must be returned to the finder. This test would also remove the concept of “finders keepers” as in Parker v British Airways Board [1982] 1 QB 1004.

Some of these scenarios were failed by the Ghosh test, because of a lack of clarity over whether something was dishonest, but they are all caught under this new test.

It may be argued that this test would potentially criminalise very minor things, such as finding a one pound coin in the street and failing to hand it into the police. Whilst this is true, CPS guidelines could ensure that such cases are not brought to court, as it would unjustly burden the court system.

Alternatively, a limit could be written into the reform itself, as the CPS could be criticised for not prosecuting what should be a crime. Some consider that the CPS should not be the sole adjudicator of when crimes should be prosecuted as this could allow an abuse of power, for example for prosecuting in order to make an example of someone. This could be solved by including wording such as: “property belonging to another over the value of x”. This would then keep the idea of “finders keepers” for small amounts.

Conclusion

Two of the main pillars of the criminal law are being undermined by the current state of the law: certainty and equality. Cases with identical facts can lead to very different results. The law on dishonesty should be replaced altogether with a stricter, but simpler test, which, in its final form, would be:

The defendant has the mens rea for the crime of theft if:

  1. the defendant did not have claim of right,
  2. the defendant did not have express or implied permission of the owner to deal with the property in that way, and
  3. the defendant had not taken actions to return the property by contacting the owner, or the police. Including, but not limited to: telling the owner or the police where the property currently is, arranging a time for them to retrieve the property, returning the property via a postal service/courier.

This test would therefore prevent defendants from escaping justice by claiming a different moral code, and would make the law more certain.

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Tagged: Criminal Law

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