Theft Acts, Incorporating the Charging Standard
This Guidance was last updated on 31st March 2008.
- Principle
- Charging Standard - Purpose
- General Charging Practice
- Jurisdiction
- Dishonesty
- Appropriation
- Property
- Belonging to Another
- With the Intention of permanently depriving the other of it
- Other Offences under the Theft Act
- Useful links
Principle
This guidance deals with offences in the Theft Act 1968 other than those repealed by Fraud Act 2006. For further information on offences of fraud please see guidance on Fraud Act 2006 elsewhere.
Charging Standard - Purpose
The charging standard below, gives guidance concerning the charge which should be preferred if the criteria set out in the Code for Crown Prosecutors are met. The purpose of charging standards is to make sure that the most appropriate charge is selected, in the light of the facts, which can be proved, at the earliest possible opportunity. Adoption of this standard should lead to a reduction in the number of times charges have to be amended which in turn should lead to an increase in efficiency and a reduction in avoidable extra work for the police, CPS and the courts.
The guidance set out in this charging standard:
- should not be used in the determination of any investigatory decision, such as the decision to arrest;
- does not override any guidance issued on the use of appropriate alternative forms of disposal short of charge, such as cautioning, or conditional cautioning;
- does not override the principles set out in the Code for Crown Prosecutors;
- does not override particular policy guidance involving hate crimes, such as Homophobic, Racially or Religiously Aggravated, or Domestic Violence offences;
- does not override the need for consideration to be given in every case as to whether a charge/prosecution is in the public interest;
- does not remove the need for each case to be considered on its individual merits nor fetter the discretion to charge and to prosecute the most appropriate offence depending on the particular facts of the case.
General Charging Practice
You should always have in mind the following general principles when selecting the appropriate charge(s):
(i) the charge(s) should accurately reflect the extent of the defendant's alleged involvement and responsibility thereby allowing the courts the discretion to sentence appropriately;
(ii) the choice of charges should ensure clear and simple presentation of the case particularly when there is more than one defendant;
(iii) there should be no overloading of charges by selecting more charges than are necessary just to encourage the defendant to plead guilty to a few;
(iv) there should be no overcharging by selecting a charge that is not supported by the evidence in order to encourage a plea of guilty to a lesser allegation.
Jurisdiction - Criminal Justice Act 1993 Part 1
We can prosecute for certain offences of dishonesty (section 1) (Archbold, 2-37) provided a "relevant event" (section 2) occurred in England or Wales - Archbold 2-38). This applies whether or not the defendant was in England or Wales at any material time, and whether or not he was a British citizen at any such time (section 3) (Archbold, 2-44).
Offences
Theft - section 1 Theft Act 1968
(Archbold 21-5)
Theft is an either-way offence, which carries a penalty on conviction on indictment of up to seven years imprisonment. On summary conviction it carries a penalty of imprisonment for up to six months and/or a fine of up to the statutory maximum.
There are 5 elements of the offence:
Dishonesty
In assessing whether dishonesty can be proved, you should apply the twofold test set out in the case of (R v Ghosh 75 CR App R 154), (Archbold 21-2b, 21-2c 21-24). Remember that a jury will have to consider the same two tests before they are entitled to conclude that a defendant was dishonest:
Firstly, according to the ordinary standards of reasonable and honest people, was what was done dishonest? Secondly, if it was dishonest by those standards, did the defendant realise that reasonable and honest people would regard his conduct as dishonest? If the answer to either of these two questions is no, a prosecution will fail. You should also consider the provisions of section 2 of the 1968 Act, which set out the circumstances when an appropriation is not to be regarded as dishonest (Archbold 21-23).
Appropriation
Section 3 of the 1968 Act, (Archbold 21-31) provides that any assumption by a person, of the rights of an owner amounts to an appropriation. The Prosecution do not have to prove that the appropriation was without the owner's consent. An appropriation will take place as an objective fact irrespective of whether the owner authorised or consented to the appropriation. The mental state of the defendant is also irrelevant to the question of appropriation. The defendant's state of mind is only relevant to issues of dishonesty and intention to permanently deprive. (Lawrence v. Metropolitan Police Commissioner 73 Cr App R 1) (Archbold 21-33) and (R v Gomez 96 Cr App R 359) (Archbold 21-34).
Property
The 1968 Act describes property as including money and all other property, real or personal, including things in action and other intangible property. When a case involves cheques or funds in bank accounts, it is important to identify and analyse exactly what has taken place. You should examine bank account details and it may be necessary to ask the police to obtain further evidence or information before deciding on the appropriate charge.
In normal circumstances, the holder of the bank account has a right to sue the bank for the amount of any credit balance and any agreed overdraft. When it can be proved that the dishonest actions of a defendant, had the effect of extinguishing a chose in action in a bank account belonging to another person, it would be appropriate to charge the theft of a credit balance belonging to the account holder.
Belonging to another
The 1968 Act provides that property shall be regarded as belonging to any person having possession or control of it, or having in it any propriety right or interest. If a person receives property from, or on account of another, and he is obliged to retain and deal with it in a particular way, the property still belongs to that other person. Property that has been abandoned cannot be stolen.
With the Intention of permanently depriving the other of it
When a person gets property by another's mistake, and is obliged to make restoration in whole or part of that property, an intention not to make restoration shall be regarded as an intention to permanently deprive that person of the property - section 5 of the 1968 Act, (Archbold 21-58). Section 6 of the 1968 Act, (Archbold 21-76) also provides assistance in situations when there has been a borrowing or lending of property in this way is to be regarded as having the intention to permanently deprive the other of it.
Other Offences under the Theft Act
Abstracting electricity
Electricity is not property within the meaning of section 4 Theft Act 1968 (Low v Blease [1975] Crim L.R. 513 and cannot therefore be stolen. When electricity is used without due authority, or dishonestly wasted of diverted you should charge the offence of abstracting electricity contrary to section 13 Theft Act 1968. (Archbold 21-164).
Handling Stolen Goods - Section 22 Theft Act 1968
A person handles stolen goods if (otherwise than in the course of stealing), knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so. (Archbold 21-270)
The offence of handling stolen goods is a single offence. However, there are two limbs to the offence:
- Dishonestly receiving stolen goods
- Dishonestly undertaking or assisting in the retention, removal, disposal or realisation of stolen goods by or for the benefit of another person, or arranging to do so.
Handling stolen goods is an either-way offence, which carries a penalty on conviction on indictment of imprisonment for a term not exceeding 14 years.
On summary conviction it carries a penalty of a term of imprisonment up to 6 months and/or a fine not exceeding the statutory maximum.
Relationship between handling and theft
It is sometimes difficult to show whether a person in possession of stolen goods is a thief, or a handler of goods that have already been stolen.
Theft and handling stolen goods may be charged in the alternative. If the evidence clearly points to theft by the defendant, it would not be appropriate to add a further charge of handling.
Citing Of Previous Convictions
(Archbold 21-313)
Section 27(3) Theft Act 1968 allows for admissibility of evidence of previous convictions for theft and handling. It can only be used when handling is the only charge that a defendant is facing. Where a person is being proceeded against for other offences of dishonesty, it may be possible to introduce previous convictions under Section 98 of the Criminal Justice Act 2003. See Legal guidance on Bad character. (Archbold 13-5 onwards).
Robbery, contrary to section 8(1) of the 1968 Act
(Archbold 21-85)
The offence is committed when a person steals and immediately before or at the time of doing so, and in order to do so, he uses force on any person, or puts or seeks to put any person in fear of being then and there subject to force. (Archbold 21-101, 21-102)
Robbery is an offence triable only on indictment. The maximum penalty on conviction is imprisonment for life.
Assault with Intent to Rob Contrary to section 8(2) of the 1968 Act
(Archbold 21-103)
Section 8(2) of the 1968 Act provides for an offence when an assault is coupled with an intent to rob. The intent to rob must be proved from the surrounding circumstances and any admission or confession made by the defendant. No actual demand of money or property is necessary to support the allegation. (Archbold 21-107)
The offence is triable only on indictment and carries a maximum penalty on conviction of life imprisonment.
Burglary, contrary to section 9 Theft Act 1968
(Archbold 21-108)
Section 9 of the 1968 Act creates two offences:
Entry as a trespasser in any building or part of building with the intention of stealing, inflicting GBH, or unlawful damage therein (section 9(1) (a) of the 1968 Act) (Archbold 21-109).
Having entered as a trespasser any building or part of a building stole within or inflicted grievous bodily harm upon a person within. (section 9(1)(b) of the 1968 Act) (Archbold 21-110)
Useful Links
Archbold, 2-37
Archbold 2-38
Archbold, 2-44
Archbold 13-5
Archbold 21-2b, 21-2c
Archbold 21-5
Archbold 21-23
Archbold 21-24
Archbold 21-31
Archbold 21-34
Archbold 21-58
Archbold 21-76
Archbold 21-85
Archbold 21-101, 21-102, 21-103
Archbold 21-107
Archbold 21-109
Archbold 21-164
Archbold 21-270
Archbold 21-313
R v Ghosh 75 CR App R 154
Lawrence v. Metropolitan Police Commissioner 73 Cr App R 1
R v Gomez 96 Cr App R 359
Low v Blease [1975] Crim L.R. 513
Theft Act 1968
Taking a Conveyance without Authority