Theft and property offences - Theft (s.1 Theft Act 1968)

Learning Outcomes

This article outlines the offence of theft under s.1 of the Theft Act 1968. It details the five key elements required for the offence: appropriation, property, belonging to another (actus reus), dishonesty, and intention to permanently deprive (mens rea). It further clarifies later appropriation under s.3(1), the breadth of “property” (including things in action), the scope of “belonging to another” under ss.5(1)–(4), and the coincidence of actus reus and mens rea in theft. It explains the s.2(1) honest belief exceptions and the objective dishonesty test in Ivey, and deepens understanding of the extended meaning of intention to permanently deprive in s.6 (including borrowing “equivalent to an outright taking” and pawning). After reading, you should be able to identify and analyse these elements in factual scenarios in line with current authority.

SQE1 Syllabus

For SQE1, you are required to demonstrate a thorough understanding of the offence of theft as defined in the Theft Act 1968 and to analyse scenarios to identify whether the elements of theft are satisfied, with a focus on the following syllabus points:

• The definition and scope of ‘appropriation’ under s.3, including that any one owner’s right suffices and that consent does not preclude appropriation (including valid gifts).
• The definition of ‘property’ under s.4, including what can and cannot be stolen (money, personalty, things in action, intangible property; exclusions such as confidential information).
• The meaning of ‘belonging to another’ under s.5, including possession, control and proprietary interests; obligations under ss.5(3)–(4).
• The test for ‘dishonesty’, incorporating the common law test from Ivey v Genting Casinos and the s.2(1) honest belief exceptions.
• The meaning of ‘intention to permanently deprive’ under s.6, including treating property as one’s own to dispose of, borrowing equivalent to an outright taking, and pawning under s.6(2).
• Coincidence of actus reus and mens rea in theft, and how later appropriation under s.3(1) enables coincidence where the initial taking was innocent.
• Conditional intent and its relevance to attempts rather than completed theft.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following constitutes an ‘appropriation’ under s.3 Theft Act 1968?
   1. Picking up an item in a supermarket with the intention of paying for it.
   2. Damaging an item belonging to someone else.
   3. Offering to sell property that belongs to someone else.
   4. Receiving a gift dishonestly.
2. Which of the following cannot be stolen under the Theft Act 1968?
   1. A patented idea.
   2. Money held in a bank account.
   3. Confidential information.
   4. Wild mushrooms picked for personal consumption.
3. According to the current common law test, when is a person considered dishonest for the purposes of theft?
   1. When they believe their actions are dishonest by the standards of ordinary decent people.
   2. When their actions are dishonest by the standards of ordinary decent people, regardless of their own belief.
   3. When they know their actions are dishonest by the standards of ordinary decent people.
   4. Only when their actions fall below the exceptions listed in s.2 Theft Act 1968.
4. When might borrowing property amount to an intention to permanently deprive under s.6 Theft Act 1968?
   1. If the borrowing is for a very short period.
   2. If the property is returned in exactly the same condition.
   3. If the borrowing is for a period and in circumstances making it equivalent to an outright taking or disposal.
   4. If the borrower genuinely intends to return the property later.

Introduction

Theft is a fundamental property offence defined in s.1(1) of the Theft Act 1968 (TA 1968). It is essential for prospective solicitors to understand its components thoroughly for the SQE1 assessment. The offence is committed when a person dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. This article will dissect the five key elements: appropriation, property, belonging to another, dishonesty, and intention to permanently deprive.

Actus Reus of Theft

The actus reus, or the physical elements of theft, comprises three components: appropriation, property, and belonging to another. Each must be present for the actus reus to be complete.

Appropriation (s.3 TA 1968)

Appropriation is the assumption of any of the rights of an owner over property.

Key Term: Appropriation
Any assumption by a person of the rights of an owner amounts to an appropriation, including any later assumption of a right by keeping or dealing with property as owner (s.3(1) TA 1968).

Two practical points follow from this broad statutory definition:

• Appropriation can be constituted by the assumption of any single right of the owner. You do not have to usurp all the rights in the bundle. Acts such as selling, gifting, using, consuming, damaging, or destroying the item may suffice. Even seemingly minor interferences can qualify, such as switching price labels on goods to pay less, or purporting to sell property you do not own. The fact that appropriation can be satisfied by one right is especially important in retail or workplace scenarios.
• Appropriation is “neutral” as to consent. It may occur even where the owner consents, or where there is a valid civil transfer of title (for example, a genuine gift), if the defendant acts dishonestly. Accordingly:
  • Consent induced by deception does not preclude appropriation (R v Gomez).
  • Acceptance of a valid gift can still amount to appropriation if accompanied by dishonesty (R v Hinks).

Because of this breadth, the timing of appropriation matters for assessing coincidence with mens rea. Section 3(1) also covers “later appropriation.”

Key Term: Later Appropriation
This occurs when a person comes by property without stealing it (innocently or not) and later assumes a right to it by keeping or dealing with it as owner (s.3(1) TA 1968).

Later appropriation is important where the initial acquisition was innocent (e.g., a mistaken pickup, a find, or a mix‑up). Once the person forms dishonest intent and treats the property as their own, an appropriation occurs at that later point, enabling the coincidence of actus reus and mens rea.

A further protection exists for those who innocently purchase goods for value.

Key Term: Bona Fide Purchaser
A person who purchases property in good faith and for value without knowing it was stolen does not appropriate it by later assuming ownership rights (s.3(2) TA 1968).

Where s.3(2) applies, the innocent purchaser does not commit theft by exercising ordinary ownership rights thereafter. If, however, the purchaser later learns the goods were stolen and then decides to keep or dispose of them, you must consider whether their conduct falls outside s.3(2) and amounts to a later appropriation.

Two further points about appropriation often examined in practice:

• Appropriation can occur without physical touching. Offering property for sale (R v Pitham & Hehl) or directing others how to deal with it may suffice.
• Appropriation can be an ongoing or repeated course (e.g., using a season ticket throughout the season, or repeatedly using someone’s subscription or log‑in), which can help with coincidence where dishonesty is formed partway through.

Property (s.4 TA 1968)

The subject matter of theft must be 'property'.

Key Term: Property
Includes money and all other property, real or personal, including things in action and other intangible property (s.4(1) TA 1968).

This is a wide definition:

• Money covers coins and banknotes of any currency.

• Personal property includes tangible items capable of possession (things in possession), such as vehicles, phones, and jewellery.

• Things in action are enforceable rights (e.g., bank balances, debts, cheques, or contractual rights). Theft can be committed against a thing in action (e.g., dishonest transfers out of accounts).

• Other intangible property includes non-physical property interests such as patents or copyrights.

• Real property (land): Land cannot generally be stolen, but s.4(2) creates limited exceptions, including:

  • Trustees or personal representatives acting in breach of their powers (s.4(2)(a)).
  • Situations involving severance from land (e.g., someone picking and taking fixtures or items forming part of land) where the severer is not entitled to do so (s.4(2)(b)).
  • Tenants who remove fixtures at the end of the tenancy contrary to their rights (s.4(2)(c)).

Certain things cannot be stolen:

• Confidential information (Oxford v Moss). While the physical document carrying information can be property, the confidential information itself is not property for theft.
• Electricity is not “property” for theft, though abstracting it is a separate offence (TA 1968, s.13).
• Wild creatures not tamed or ordinarily kept in captivity cannot be stolen unless reduced into possession or in the course of being reduced into possession (s.4(4)).
• Wild mushrooms, flowers, fruit or foliage cannot be stolen unless picked for reward, sale, or other commercial purpose (s.4(3)). “Picking” concerns severing, not uprooting plants. Uprooting would be dealt with under different offences (e.g., criminal damage).

The modern economy means “property” often comprises digital and intangible rights. While data per se has a complex status, many digital assets are captured either as things in action (e.g., account credits) or intangible property (e.g., certain IP rights). Always analyse exactly what is appropriated.

Worked Example 1.1

Sarah works for a tech company. She memorises a commercially sensitive algorithm developed by her employer and sells the details to a competitor. Has Sarah stolen 'property' under s.4 TA 1968?

Answer:
No. Confidential information, such as the algorithm formula, is not considered 'property' capable of being stolen under the Theft Act 1968, following the principle in Oxford v Moss. Sarah may have committed other offences or breached her employment contract, but not theft of the algorithm itself.

Belonging to Another (s.5 TA 1968)

Property must 'belong to another' at the time of appropriation.

Key Term: Belonging to Another
Property belongs to any person having possession or control of it, or having in it any proprietary right or interest (s.5(1) TA 1968).

Key implications:

• More than one person can have an interest at the same time. The owner, a possessor, and a person in control may each be protected by s.5(1).
• You can steal your own property if, at the relevant time, someone else has possession or control of it inconsistent with your rights (e.g., a garage retaining a vehicle under a lien; R v Turner (No 2)).

Specific situations under s.5:

• Trust property: It belongs both to trustees (legal title) and beneficiaries (equitable title). Misapplication can therefore be theft against either interest.
• Property received under obligation (s.5(3)): Where D receives property subject to a legal obligation to deal with it in a particular way (for example, ring‑fencing or applying funds to a specific purpose), it belongs to the person(s) entitled to enforce that obligation. The obligation must be legal; a mere moral expectation is insufficient. Express undertakings, and factual matrices showing money is to be segregated and applied only for stated purposes, are relevant (contrast R v Hall with R v Klineberg & Marsden; note R v Wain on charity fundraising proceeds).
• Property received by mistake (s.5(4)): If D receives property by mistake and is under a legal obligation to restore it (typically arising once D realises the mistake and the law of restitution imposes a duty), the property belongs to the person entitled to restoration. This often arises with overpayments of wages or bank transfers (see AG’s Reference (No 1 of 1983)).

Exam Warning

Do not assume property found is abandoned. Abandonment requires the owner to relinquish all rights. Property merely lost, or rubbish put out for collection, still 'belongs to another' (Williams v Phillips (1957)). The finder may have an obligation to take reasonable steps to find the owner (relevant to dishonesty under s.2(1)(c)).

In finder cases, consider locus: the occupier of land may have a better claim to items found on or in their land, particularly where they have manifested an intention to exercise control over things found there (for example, controlled access and lost property systems). These nuances affect both s.5(1) analysis and the genuineness of beliefs under s.2(1).

Mens Rea of Theft

The mens rea, or mental elements of theft, consists of two components: dishonesty and intention to permanently deprive. Both must be present at the time of appropriation. Where the initial taking is innocent, later appropriation under s.3(1) facilitates coincidence when dishonest intent is subsequently formed.

Dishonesty (s.2 TA 1968 & Common Law)

Dishonesty is essential but not fully defined in the Act. Section 2(1) TA 1968 provides three situations where appropriation is not dishonest:

• Belief in a legal right to the property (s.2(1)(a)).
• Belief that the owner would consent if they knew the circumstances (s.2(1)(b)).
• Belief that the owner cannot be discovered by taking reasonable steps (s.2(1)(c)).

These beliefs only need to be genuinely held, not necessarily reasonable (R v Robinson [1977]). Reasonableness may, however, be probative of whether the belief was in fact held.

Key Term: Dishonesty (Common Law Test)
Following Ivey v Genting Casinos [2017] UKSC 67 (as applied to criminal law in R v Barton; R v Booth [2020] EWCA Crim 575), dishonesty is determined by a two-stage approach: (1) ascertain the defendant's actual state of knowledge or belief as to the facts; (2) determine whether their conduct was dishonest by the standards of ordinary decent people.

Important features of the Ivey/Barton approach:

• Stage 1 focuses on D’s subjective understanding of the facts (not moral standards). D’s experience, characteristics, and what they actually believed are relevant.
• Stage 2 applies an objective standard of ordinary decent people. There is no requirement that D appreciated their conduct to be dishonest by those standards.
• The s.2(1) categories operate first. If one applies, D is not dishonest and there is no need to resort to Ivey. If not, apply Ivey to the facts as D believed them to be.
• Willingness to pay does not automatically negate dishonesty (s.2(2) TA 1968). For example, taking without consent with an intention to pay later can be dishonest.

A frequent exam theme is self‑help for debts. If D genuinely believes they have a legal right to an immediate sum, they may not be dishonest under s.2(1)(a), even if they use force (though other offences may arise). Always separate the s.2(1) analysis from the Ivey objective assessment.

Worked Example 1.2

Ahmed finds a wallet containing £100 and identification documents on a park bench. He takes the wallet home, intending to keep the cash but not wanting the trouble of returning the wallet. Is Ahmed dishonest?

Answer:
Yes, Ahmed is likely dishonest under the Ivey test. Stage 1: His knowledge is that the wallet contains identification and belongs to someone specific. Stage 2: By the standards of ordinary decent people, keeping the cash when the owner is identifiable through the documents would be considered dishonest. The exception in s.2(1)(c) TA 1968 (owner cannot be discovered by reasonable steps) does not apply.

Intention to Permanently Deprive (s.6 TA 1968)

The defendant must intend to permanently deprive the other person of the property.

Key Term: Intention to Permanently Deprive
An intention to treat the property as one's own to dispose of regardless of the owner's rights (s.6(1) TA 1968).

In most cases, this carries its ordinary meaning: intending that the owner should lose the property forever. Section 6 widens the scope in hard cases:

• Treating as own to dispose of: D intends to treat the property as their own to dispose of, regardless of the owner’s rights. The typical case is where D sells, ransoms, or otherwise deals with the property as an owner would, even intending eventual return. The courts have treated conduct such as reselling used but unexpired tickets as indicative of an intention to permanently deprive because D has treated the issuer’s rights as irrelevant (R v Marshall).
• Borrowing equivalent to an outright taking: Borrowing becomes “equivalent to an outright taking or disposal” where, because of the period and circumstances, the practical value or “goodness and virtue” of the property is lost on return (R v Lloyd). Using a one-off concert or match ticket and returning it afterwards falls within this extension.
• Parting with property under a condition as to its return (s.6(2)): Where D parts with property under a condition as to its return that they may not be able to perform (e.g., pawning another’s goods), D is treated as having the necessary intention.

Revision Tip

Section 6 TA 1968 does not define intention to permanently deprive but extends its ordinary meaning. Only refer to s.6 if the defendant argues they intended to return the property. In most cases, the ordinary meaning is sufficient.

Conditional intent (intending to steal only if there is something worth taking) will not usually make out completed theft of identified property. It may, however, found liability for attempted theft depending on the facts.

Worked Example 1.3

Priya collects £500 in cash from neighbours for a school fundraising page after promising to pay it into the school’s designated account that day. She pays in £300 and, short of cash, uses £200 for her own bills intending to “top it up” next month. She later decides not to repay it. Has she committed theft?

Answer:
Yes. The money “belonged to another” by virtue of s.5(3) because it was received under a legal obligation to deal with it in a particular way (for the school’s fund). Priya appropriated the £200 by dealing with it as owner, was dishonest (no s.2(1) exception applies), and intended to permanently deprive, particularly once she decided not to repay. Even a plan to replace the exact sum later does not avoid ITPD; she treated the fund as her own to dispose of regardless of the school’s rights.

Worked Example 1.4

Luca borrows his colleague’s company annual travel card for a week without permission, uses it for peak travel every day, and returns it undamaged. Does he have the intention to permanently deprive?

Answer:
Likely yes. Although he returned the physical card, he treated it as his own to dispose of (s.6(1)) and borrowed it in circumstances equivalent to an outright taking: he exhausted a significant part of the economic value (use) during the period. Ordinary decent people would view this as theft; the borrowing here is for a period and in circumstances amounting to an outright taking (cf. R v Lloyd; travel tickets returning having lost their “virtue” through use).

Additional Practical Points and Common Pitfalls

• Coincidence of actus reus and mens rea: Appropriation is an act. If D initially acquires property innocently and later forms dishonest intent, rely on “later appropriation” to achieve coincidence. For example, picking up the wrong coat by mistake (no mens rea) and later deciding to keep it (appropriation occurs at the later dishonest decision).
• Retail settings: Appropriation can occur long before leaving a shop (e.g., placing goods in a bag, switching labels, walking past points of payment). The factual sequence matters, but what distinguishes lawful shopping from theft is dishonesty. The mere act of placing goods in a trolley is not theft absent dishonesty.
• Self‑help for debts: A genuinely held belief in a legal right to the whole of a specific sum can negate dishonesty under s.2(1)(a), even if the method of recovery is improper. However, take care: the belief must be as to a legal right to the property appropriated, not merely a general grievance or moral claim.
• Things in action: Dishonestly transferring funds from an account or diverting payment streams can be theft of a thing in action. Identify whose proprietary interest is affected (the bank/customer relationship or the beneficiary of a linked obligation) and consider s.5(3).

Key Point Checklist

This article has covered the following key knowledge points:

• Theft under s.1 TA 1968 requires five elements: appropriation, property, belonging to another (AR), dishonesty, and intention to permanently deprive (MR).
• Appropriation (s.3) involves assuming any owner’s right; consent does not prevent appropriation where there is dishonesty. Later appropriation enables coincidence where D’s dishonest intent arises after an innocent acquisition.
• Property (s.4) is broad (including money, tangible items, things in action, and other intangible property) but excludes confidential information and electricity; land is only covered in limited statutory circumstances.
• Belonging to another (s.5) includes possession, control, and proprietary interests; s.5(3) covers property received under a legal obligation; s.5(4) covers property received by mistake where there is a duty to restore.
• Dishonesty is assessed first through the s.2(1) honest belief exceptions and then, if necessary, under the Ivey/Barton objective test, which asks whether ordinary decent people would regard the conduct as dishonest on the facts as D believed them to be.
• Intention to permanently deprive (s.6) includes treating property as one’s own to dispose of (e.g., selling or ransoming) and borrowing equivalent to an outright taking; pawning another’s goods engages s.6(2).
• Conditional intent generally does not complete theft of identified property but may ground attempted theft; always consider the evidential sequence and coincidence of actus reus and mens rea.

Key Terms and Concepts

• Appropriation
• Later Appropriation
• Bona Fide Purchaser
• Property
• Belonging to Another
• Dishonesty (Common Law Test)
• Intention to Permanently Deprive