Theft

1
Theft

• Mens Rea

2
Lesson Objectives

• I will be able to explain the mens rea of theft
• I will be able to explain cases that illustrate
  the mens rea of theft
• I will be able to apply the rules relating to
  both the actus reus and mens rea of theft to a
  given situation

3

• The mens rea of theft has two elements
• Dishonesty
• Intention to permanently deprive the other of the
  appropriated property
• Both elements must be proved for the offences to
  be committed. It is this element of mens rea that
  distinguishes normal transactions from theft
• It should be noted that the Theft Act 1968 points
  out in s1(2) that it is immaterial whether the
  appropriation is made with a view to gain, or is
  made for the thiefs own benefit. This means
  that a person could be convicted of theft when
  destroying another persons property, even though
  he would normally be prosecuted for criminal
  damage.

4

• The prosecution must prove the elements beyond
  reasonable doubt and this can sometimes prove
  difficult. It is logical to consider the elements
  in the reverse order. Whilst the overriding
  element of theft is dishonesty, a person can
  intend to permanently deprive someone of an item
  honestly. It is therefore preferable to consider
  this element first.

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Mens rea element 1 intention to permanently
deprive the other of the appropriated property

• As a general rule merely borrowing something does
  not form an intention to permanently deprive. The
  offence of theft begins when that intention is
  formed. In most cases, intention can be inferred
  from surrounding circumstances.

6

• Section 6(1) helps explain the meaning. It
  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 or permanently
  depriving the other of it if his intention is to
  treat the thing as his own to dispose of
  regardless of the others 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

7

• There are two aspects of this
• 1 disposing of the property regardless of the
  others rights
• 2 a borrowing or lending making it equivalent
  to outright taking or disposal
• This can be seen in Marshall (1998)
• DPP v J and others (2002) the taking and
  destroying of property can amount to an intention
  to permanently deprive in this case it was
  headphones that were taken and then returned

8

• Lloyd (1985) in this case, the removal of films
  from a cinema for a short time so they could be
  illegally copied did not amount to an intention
  to permanently deprive
• Velumyl (1989) the defendant had intended to
  permanently deprive the owner of his property as
  he clearly did not intend to return the same
  notes and coins, even if he returned items of a
  similar value
• Lavender (1994) the wider approach to the
  interpretation of intention permanently to
  deprive was taken here so as to convict a person
  who swapped internal doors from another council
  house to his council house

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Mens rea element 2Dishonesty

• The meaning of dishonesty is not defined in the
  Theft Act 1968. It was assumed by the draftsmen
  of the Act that everyone would know what the word
  meant and therefore a jury or magistrates would
  be able to decide easily enough. The Act did,
  however, give three specific situations where a
  person would be deemed not to be dishonest in s2,
  whilst noting in s2(2) that a person may still
  make a dishonest appropriation even though he is
  willing to pay for the property

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• Section 2 is as follows
• 1) a persons 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 a third party or
• B) if he appropriates the property in the belief
  that he would have the others 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

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• The first exception requires an honest, but not
  necessarily reasonable, belief in the defendant
  of his right to take an item. This is a
  subjective test, so the sole concern is for the
  defendant to convince a jury that he reasonably
  held that belief
• Small (1987) this is an example of s2(1)(a) of
  the Theft Act 1968 operating to prevent the
  conviction of the defendant, who genuinely
  believed that the car he had taken was abandoned

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• The second exception requires an honest belief
  that the owner of the goods would consent if he
  knew of the circumstances (taking a pen without
  asking and returning it)
• The third exception most usually applies in
  situations of finding items and then keeping
  them. This again requires an honest belief by the
  defendant that the owner cannot be found by
  taking reasonable steps.
• Where these exceptions do not apply, the courts
  have developed a test for dishonesty.

13

• Ghosh (1982) this case set out the definitive
  test for what amounts to be dishonesty the two
  part test is
• 1. Would the defendants behaviour be regarded as
  dishonest by the standards of reasonable and
  honest people?
• (If the answer is no, the defendant is not
  guilty of theft as he has not been dishonest) If
  the answer is yes the second question is
• 2. Was the defendant aware that his conduct would
  be regarded as dishonest by reasonable and honest
  people?
• It can be seen that the first part of the test is
  objective and the second part of the test is
  subjective. If both parts of the test are
  satisfied, the defendant fulfils the criteria for
  being dishonest

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Exam Qs