THEFT, FRAUD AND RELATED DISHONESTY OFFENCES
Key dishonesty offences
Theft (Theft Act 1968, s1)
Robbery (Theft Act 1968, s8)
Burglary (Theft Act 1968, s9)
Handling Stolen Goods (Theft Act 1968, s22)
Making off without Payment (Theft Act 1978, s3)
Fraud by False Representation (Fraud Act 2006, s2)
Fraud by Failing to Disclose Information (Fraud Act 2006, s3)
Fraud by Abuse of Position (Fraud Act 2006, s4)
Obtaining Services (Fraud Act 2006, s11)
Theft (Theft Act 1968, s1)
Protects property (infringement of economic interests)
No overlap with the simple offence under s1 Criminal Damage Act 1971, although this could
be attributed to poor drafting
Based on the Criminal Law Revision Committee, Eighth Report, Theft and Related Offences (1966)
‘The whole object of the Theft Act 1968 was to get away from the technicalities and
subtleties of the old law’ (Edmund Davies LJ in Bonner [1970])
Formerly larceny (replaced the Larceny Act 1916), but ‘this crime was confined to the taking of a
thing from the possession of another without his consent’ (Williams) and reform strategy sought to
create a single general offence of theft, supplemented by fraud offences of ‘obtaining by deception’
‘The important element... is undoubtedly the dishonest appropriation of another’s property- the
treating of ‘tuum’ as ‘meum’... make this the central element of the offence. In doing so, the law
would concentrate on what the accused dishonestly achieved or attempted to achieve and not on
the means- taking or otherwise- which he used in order to do so’ (CLRC (1966))
The new crime’s success therefore falls to be heavily dependent on the
definition/interpretation of of ‘dishonest appropriation’
s1(2) affirms that the fact that theft occurs for gain is not an element of the offence
Actus reus
, Appropriation (s3)
This term could have been construed to involve some mental element (as in the CDA 1971
as either intention or recklessness), although the key fault element is later provided by
dishonesty
Of property (s4)
Belonging to another (s5)
Mens rea
Dishonesty (s2)
Intention permanently to deprive (s6)
Actus reus of theft
‘Appropriation’ (s3)
Briggs [2004] suggests that D must do an act of some kind in relation to the property, except for
‘keeping’ (coming about a property without stealing it and later assuming the rights of the owner),
which can be viewed as more of an omission
It is insufficient to merely trick the owner (V) into transferring the property to you without
ever having actively done something yourself (D)
s3(2) provides an exception to appropriation for a bona fide transferee for value
Could still be guilty of handling stolen goods etc.
Does not cover gifts (not ‘for value’)
Morris [1984] provides a broad interpretation of an ‘assumption of the rights of an owner’
Ds took items from a supermarket, removed the price tags and replaced them with those of
cheaper labels to buy
While one D was successful, the House of Lords nonetheless ruled that the appropriation
took place at the point where D infringed V’s right (to price goods at any desired price)
Interpreted to be ‘the assumption by the respondents of any of the rights of the owner of the
goods in question’
Justifies the shift from ‘rights’ to ‘(one) right’ with reference to the words ‘a right to it’ in
s3(1), although arguably should not be used so interchangeably
Although Morris potentially offends the coincidence principle by placing ‘appropriation’ at
the time of label swapping as this act itself did not indicate an intention to permanently
deprive V (but rather this was at the purchasing of the item at the checkout)
, Lord Roskill therefore accepted that ‘one or more acts’ might be involved (continuing
appropriation), with the intent to deprive by the sequence of events leading to purchase
sufficient in this regard
The concept of ‘continuing appropriation’ was considered in Atakpu [1994]
Concerned the hiring of a car in Europe, which was driven across the continent to the UK,
with D having a dishonest intent to sell
Question raised as to whether theft could have taken place in England (was the
appropriation ongoing for the whole of the drive across Europe?)
Ultimately determined to be ‘as long as the thief is on the job, it’s a question of fact’
s3 is silent on whether V’s consent to D’s act means there is no appropriation
First considered in Lawrence v MPC [1972] so that D can still have V’s consent and this can
still be an appropriation
In the case, a taxi driver told his passenger that the money she was offering was insufficient
and he then took some money when she presented him with her purse (unclear whether or
not she was agreeing to this)
Consent is only relevant to questions of dishonesty and not appropriation itself, although the
Theft Act as originally drafted contained a (now repealed) s15 offence of ‘obtaining by
deception’ which would therefore suggest that V’s consent traditionally acted as a bar to
theft, with Lawrence ultimately undermining the separation of the two offences and creating
the theft offence incredibly broad
Critics of Lawrence suggested that the House of Lords bent the law to avoid the conclusion
that D was tried for the wrong offence and was therefore ignored as precedent for many
years
‘In the context of s3(1), the concept of appropriation in my view involves not an act
expressly or impliedly authorised by the owner but an act by way of adverse interference
with or usurpation of the owner’ (Morris [1984] appeared to be incoherent with Lawrence
and the case, alongside Skipp [1975] and Fritschy [1985] were specifically overruled)
Both involved D having permission to collect V’s goods then dishonestly deviating from the
agreement to intending to keep rather than deliver them- under Morris, appropriation only
occurred at the point of deviation whereas Gomez affirmed this to be at the point of
collection
However, this was ultimately affirmed in Gomez [1993]- theft where D defrauded his
manager into accepting stolen cheques in exchange for goods
‘I regard appropriation in isolation as being an objective description of the mental state of
either V or the owner’ (Lord Browne-Wilkinson categorically endorses Lawrence)
However, Lord Lowry’s dissent drew on notions of the act of appropriating property being a
‘one-sided act’ from which, if the owner consents (even via fraud) this cannot be viewed as
theft (draws a clear line between theft and fraud)
Appropriation of consent but without fraud
Hinks [2001]- ‘it is immaterial whether the act was done with the owner’s consent or
authority... (Gomez) does not differentiate between consent induced by fraud and consent
Key dishonesty offences
Theft (Theft Act 1968, s1)
Robbery (Theft Act 1968, s8)
Burglary (Theft Act 1968, s9)
Handling Stolen Goods (Theft Act 1968, s22)
Making off without Payment (Theft Act 1978, s3)
Fraud by False Representation (Fraud Act 2006, s2)
Fraud by Failing to Disclose Information (Fraud Act 2006, s3)
Fraud by Abuse of Position (Fraud Act 2006, s4)
Obtaining Services (Fraud Act 2006, s11)
Theft (Theft Act 1968, s1)
Protects property (infringement of economic interests)
No overlap with the simple offence under s1 Criminal Damage Act 1971, although this could
be attributed to poor drafting
Based on the Criminal Law Revision Committee, Eighth Report, Theft and Related Offences (1966)
‘The whole object of the Theft Act 1968 was to get away from the technicalities and
subtleties of the old law’ (Edmund Davies LJ in Bonner [1970])
Formerly larceny (replaced the Larceny Act 1916), but ‘this crime was confined to the taking of a
thing from the possession of another without his consent’ (Williams) and reform strategy sought to
create a single general offence of theft, supplemented by fraud offences of ‘obtaining by deception’
‘The important element... is undoubtedly the dishonest appropriation of another’s property- the
treating of ‘tuum’ as ‘meum’... make this the central element of the offence. In doing so, the law
would concentrate on what the accused dishonestly achieved or attempted to achieve and not on
the means- taking or otherwise- which he used in order to do so’ (CLRC (1966))
The new crime’s success therefore falls to be heavily dependent on the
definition/interpretation of of ‘dishonest appropriation’
s1(2) affirms that the fact that theft occurs for gain is not an element of the offence
Actus reus
, Appropriation (s3)
This term could have been construed to involve some mental element (as in the CDA 1971
as either intention or recklessness), although the key fault element is later provided by
dishonesty
Of property (s4)
Belonging to another (s5)
Mens rea
Dishonesty (s2)
Intention permanently to deprive (s6)
Actus reus of theft
‘Appropriation’ (s3)
Briggs [2004] suggests that D must do an act of some kind in relation to the property, except for
‘keeping’ (coming about a property without stealing it and later assuming the rights of the owner),
which can be viewed as more of an omission
It is insufficient to merely trick the owner (V) into transferring the property to you without
ever having actively done something yourself (D)
s3(2) provides an exception to appropriation for a bona fide transferee for value
Could still be guilty of handling stolen goods etc.
Does not cover gifts (not ‘for value’)
Morris [1984] provides a broad interpretation of an ‘assumption of the rights of an owner’
Ds took items from a supermarket, removed the price tags and replaced them with those of
cheaper labels to buy
While one D was successful, the House of Lords nonetheless ruled that the appropriation
took place at the point where D infringed V’s right (to price goods at any desired price)
Interpreted to be ‘the assumption by the respondents of any of the rights of the owner of the
goods in question’
Justifies the shift from ‘rights’ to ‘(one) right’ with reference to the words ‘a right to it’ in
s3(1), although arguably should not be used so interchangeably
Although Morris potentially offends the coincidence principle by placing ‘appropriation’ at
the time of label swapping as this act itself did not indicate an intention to permanently
deprive V (but rather this was at the purchasing of the item at the checkout)
, Lord Roskill therefore accepted that ‘one or more acts’ might be involved (continuing
appropriation), with the intent to deprive by the sequence of events leading to purchase
sufficient in this regard
The concept of ‘continuing appropriation’ was considered in Atakpu [1994]
Concerned the hiring of a car in Europe, which was driven across the continent to the UK,
with D having a dishonest intent to sell
Question raised as to whether theft could have taken place in England (was the
appropriation ongoing for the whole of the drive across Europe?)
Ultimately determined to be ‘as long as the thief is on the job, it’s a question of fact’
s3 is silent on whether V’s consent to D’s act means there is no appropriation
First considered in Lawrence v MPC [1972] so that D can still have V’s consent and this can
still be an appropriation
In the case, a taxi driver told his passenger that the money she was offering was insufficient
and he then took some money when she presented him with her purse (unclear whether or
not she was agreeing to this)
Consent is only relevant to questions of dishonesty and not appropriation itself, although the
Theft Act as originally drafted contained a (now repealed) s15 offence of ‘obtaining by
deception’ which would therefore suggest that V’s consent traditionally acted as a bar to
theft, with Lawrence ultimately undermining the separation of the two offences and creating
the theft offence incredibly broad
Critics of Lawrence suggested that the House of Lords bent the law to avoid the conclusion
that D was tried for the wrong offence and was therefore ignored as precedent for many
years
‘In the context of s3(1), the concept of appropriation in my view involves not an act
expressly or impliedly authorised by the owner but an act by way of adverse interference
with or usurpation of the owner’ (Morris [1984] appeared to be incoherent with Lawrence
and the case, alongside Skipp [1975] and Fritschy [1985] were specifically overruled)
Both involved D having permission to collect V’s goods then dishonestly deviating from the
agreement to intending to keep rather than deliver them- under Morris, appropriation only
occurred at the point of deviation whereas Gomez affirmed this to be at the point of
collection
However, this was ultimately affirmed in Gomez [1993]- theft where D defrauded his
manager into accepting stolen cheques in exchange for goods
‘I regard appropriation in isolation as being an objective description of the mental state of
either V or the owner’ (Lord Browne-Wilkinson categorically endorses Lawrence)
However, Lord Lowry’s dissent drew on notions of the act of appropriating property being a
‘one-sided act’ from which, if the owner consents (even via fraud) this cannot be viewed as
theft (draws a clear line between theft and fraud)
Appropriation of consent but without fraud
Hinks [2001]- ‘it is immaterial whether the act was done with the owner’s consent or
authority... (Gomez) does not differentiate between consent induced by fraud and consent
