A person is guilty of the criminal offence of theft if they dishonestly appropriate 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.

In order to find a defendant guilty of committing theft, it is necessary to prove that a person has acted dishonestly. Appropriation of property is not to be considered dishonest if:

  1. A person takes possession of an item 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
  2. 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 determining dishonesty in a case of theft, courts often consider what lawyers know as the ‘Ghosh test’ in deciding whether a defendant acted dishonestly.  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 an individual 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 their actions as dishonest.  

This second part of the test is not what the defendant personally thought, but whether they 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 as a benchmark in courts ever since.

Appropriation under the Theft Act

If a person assumes the rights of an owner over property, they are deemed to have appropriated it. This includes cases where they obtain the property without stealing and later assume such rights by keeping or dealing with the property 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 under the Theft Act

Property includes money and all other property, real or personal, including things in action and other intangible property.

Property is deemed as belonging to another if that person has possession or control over it.

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, for example pawning property belongs to another when not able to redeem it).

In order to be found guilty of the act of theft, all five of the above elements must be proven.

Where are theft cases heard?

Theft cases can be dealt with either summarily in the Magistrates’ Court or on indictment in the Crown Court. The question of which court deals with the case will be decided upon based on the severity of the offence and the value of the items in question subject to guidelines by the sentencing council.

What are the sentences for theft?

On summary conviction in the magistrates’ court the sentence for theft is a maximum of 6 months’ imprisonment. On indictment in the crown court, the sentence is a maximum of 7 years’ imprisonment.

What should you do if you have been accused of theft?

If you have been accused of committing an act of theft, you should seek expert legal advice as soon as you are able. Get in touch with our specialist team of solicitors, who can provide you with advice and assistance with the aim of obtaining the most desirable result in your case.

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. 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.