Theft as defined in s1 Theft Act 1968 — common mistakes

In an exam, you should be able to state the s1(1) definition of theft verbatim. When analysing a problem scenario, structure your answer by applying each of the five elements in turn, supported by relevant statutory provisions and case law.

In a problem question, always apply the Ivey test for dishonesty. State the two questions for the jury clearly and apply them to the facts of the scenario. Do not refer to the old Ghosh test unless you are specifically asked to compare them.

The appropriation occurs at the moment the shopper switches the labels. According to R v Morris, appropriation is 'assuming the rights of an owner', and interfering with the price is one such right. It does not have to be the final act of taking the item from the shop. The theft is complete at that point, provided the mens rea (dishonesty and intention to permanently deprive) is also present.

This is a complex area. The House of Lords in R v Hinks decided that an appropriation can occur even when the property is transferred with the full consent of the owner, amounting to a valid civil law gift. The key is the presence of dishonesty. If the defendant dishonestly acquired the property (e.g., by taking advantage of a vulnerable person), the acceptance of the 'gift' is the appropriation. The criminal law of theft can therefore operate even where civil law would see a valid transfer of ownership.

Usually, borrowing is not theft. However, s6(1) of the Theft Act 1968 extends the meaning. If you borrow something 'for a period and in circumstances making it equivalent to an outright taking or disposal', it can be theft. The key case is R v Lloyd, which stated this applies if the 'goodness, the virtue, the practical value' has gone from the property upon its return. For example, borrowing a season ticket until the last match is played would be theft, as its value is exhausted.