Finders Keepers? A Brief Guide to Theft

Visit any Magistrates' Court on any day of the week and you can pretty much guarantee that there will be theft cases listed.

In this article we give a whistle stop tour of the offence of theft. This is a very broad subject, so we cannot possibly cover every single angle. That said, we hope to cover the most pertinent points.

The various different modes of theft are offences under the Theft Act 1968. Low value shop theft, where the good stolen have a value of less than £200, is a summary offence that is dealt with by the Magistrates' Court. Higher value theft is an either way offence, which means the defendant has the option of having their case dealt with by either the Magistrates' or Crown Court.

Section 1 of the Act defines theft as thus: A person is guilty of theft if they dishonestly appropriate property belonging to another with the intention of permanently depriving the other of it; and "thief" and "steal" shall be construed accordingly.

In order secure a conviction for theft, the prosecution must prove that the defendant has satisfied both the actus rea and mens rea of the offence:

• Actus rea: The act of appropriating (taking, keeping or using) another person's property without their permission.
• Mens rea: Acting dishonestly, with the intention of permanently depriving the owner of that property or its use.

It therefore follows that a person is not guilty of theft if the property in question does not have an owner (e.g. it had been clearly abandoned somewhere) or they lack the intent to permanently deprive the owner of it (e.g. the alleged thief left a note saying "I've just borrowed this and will return it later").

Many offences under the Act require proof that the defendant was acting dishonestly. This is now determined by applying the two-stage Ivey test (Ivey v Genting Casinos [2017] 3 WLR 1212). A person is deemed to be acting dishonestly after consideration of the following:

• What was the defendant's actual belief or knowledge about the facts? AND
• Was the defendant's conduct dishonest by the standards of ordinary decent people?

Additionally, as described in section 2 of the Act, the appropriation of property is not considered dishonest in the following circumstances:

• If the alleged thief believes they have the lawful right to deprive the owner of the property (e.g. a bailiff seizing goods).
• If the alleged thief appropriates the property in the belief that the owner would have consented if they had known about the appropriation and circumstances of it (e.g. a family member borrows something they had previously borrowed with permission, but in the absence of the owner just helps them self the next time).
• If the alleged thief believes they are unable to take reasonable steps to trace the owner.

The appropriation of property can be dishonest even if the alleged thief has indicated a willingness to pay for it.

The oft-mooted statement and attitude "finders keepers" demonstrates a real misunderstanding of the legislation.

Defendants often appear before the court charged with the offence of Theft by Finding. This offence is committed when a person finds and retains property that clearly belongs to someone else, but fails to take reasonable steps to ascertain who the owner is and return the property to them.

If you find a mobile phone or wallet of cash lying on the street honesty really is the best policy. Hand it in at the local police station or contact the police on 101 to make them aware of what you've found and where you found it. If the owner doesn't come forward, the finder may get to legally keep the property after enquiries to trace the owner have been exhausted.

You occasionally hear stories of cash machines over-dispensing. If the person making the withdrawal knows or realises there is a fault with the machine and dishonestly walks away with money belonging to the bank, they too are guilty of theft unless they take reasonable steps to return that overpaid money. The same rule holds true if a person was accidentally overpaid by their employer and dishonestly decided to go on a spending spree with their new found wealth.

If you wish to read more about the legalities surrounding theft, then the CPS website has a very good guide.