A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. This is contrary to Section 1 (1) of the Theft Act 1968.
The necessary points to prove are:
That a person has acted dishonestly – appropriation of property is not to be considered dishonest if;
A person takes possession of property believing they have a legal right to deprive others of it, or, if the property was appropriated in the belief that the other would have consented to the appropriation
It will not be dishonest if not being a trustee or personal representative, a person takes possession of property believing that, by taking reasonable steps, the owner could not be discovered.
When dealing with dishonesty Courts often deal with what lawyers know as the “Ghosh test” in deciding whether a defendant is dishonest. This is a test as to whether the defendant was dishonest according to the ordinary standards of reasonable and honest people. In criminal law, this is an “objective” test. If the answer is no then the defendant is not dishonest. If the answer is yes, before convicting there is a second stage. That stage requires a question being asked as to whether the defendant realised that reasonable and honest people would regard what he did as dishonest. This second part of the test if not what the defendant personally thought, but whether he realised what ordinary and reasonable people thought. The Ghosh test came from a decided case of R –v- Ghosh (1982) 2 All E R689, QBD. In this famous case, the Defendant was a surgeon convicted of obtaining property by deception, namely fees that he was not entitled to. Although he lost his appeal this test has been used in Courts ever since.
If a person assumes the rights of an owner over property they are deemed to have appropriated it. This includes where they obtain the property without stealing and later assumes such rights by keeping or dealing with it as the owner.
Where property (or a right or interest in it) is transferred to a person for its true value, any later assumption by the acquirer as to the rights of ownership will not amount to theft simply because of the transferor had no right to transfer it.
Property includes money and all other property, real or personal, including things in action and other intangible property.
Belonging to another – Property belongs to another if that person has possession or control over it
Intention to permanently deprive
Appropriation of property belonging to another without meaning them to permanently lose it still has the intention of permanently depriving them of it if the appropriator intends to treat it as their own to dispose of regardless of the other’s rights.
Borrowing or lending property may amount to treating it as their own if it is for a period and in the circumstances equating to an outright taking or disposal.
Where a person has possession or control of another’s property, for their own purposes and without the other’s permission, loans it to a third person with unachievable conditions for its return, they treat it as their own to dispose of regardless of the other’s rights (e.g. pawning property belongs to another when not able to redeem it).
In order to be found guilty of theft, all five of the above elements must be proved.
Theft cases can be dealt with summarily (in the Magistrates Court) or on Indictment (in the Crown Court). The question of which Court deals with the case will be due to the seriousness of the offence and the value of the items in question subject to guidelines by the sentencing Council. On summary conviction in the Magistrates Court the sentence is a maximum of 6 months imprisonment, and on Indictment in the Crown Court it is 7 years imprisonment.
Nb. This guide is intended to give general information only and not intended to be used as the basis upon which Advice is given nor should it be relied upon as giving advice specific to a case or individual and Lawtons do not accept liability for anyone using this guide. Should you require specific advice in connection with a real case or situation, please contact us immediately so that we can provide specific Advice