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Theft. Mens Rea. Lesson Objectives. I will be able to explain the mens rea of theft I will be able to explain cases that illustrate the mens rea of theft I will be able to apply the rules relating to both the actus reus and mens rea of theft to a given situation.

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Mens Rea

lesson objectives
Lesson Objectives
  • I will be able to explain the mens rea of theft
  • I will be able to explain cases that illustrate the mens rea of theft
  • I will be able to apply the rules relating to both the actus reus and mens rea of theft to a given situation
The mens rea of theft has two elements:
  • Dishonesty
  • Intention to permanently deprive the other of the appropriated property
  • Both elements must be proved for the offences to be committed. It is this element of mens rea that distinguishes normal transactions from theft
  • It should be noted that the Theft Act 1968 points out in s1(2) that it is ‘immaterial whether the appropriation is made with a view to gain, or is made for the thief’s own benefit’. This means that a person could be convicted of theft when destroying another person’s property, even though he would normally be prosecuted for criminal damage.
The prosecution must prove the elements beyond reasonable doubt and this can sometimes prove difficult. It is logical to consider the elements in the reverse order. Whilst the overriding element of theft is dishonesty, a person can intend to permanently deprive someone of an item honestly. It is therefore preferable to consider this element first.
mens rea element 1 intention to permanently deprive the other of the appropriated property
Mens rea: element 1 –intention to permanently deprive the other of the appropriated property
  • As a general rule merely borrowing something does not form an intention to permanently deprive. The offence of theft begins when that intention is formed. In most cases, intention can be inferred from surrounding circumstances.
Section 6(1) helps explain the meaning. It states:

1) A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention or permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal

There are two aspects of this:
  • 1 – disposing of the property regardless of the other’s rights
  • 2 – a borrowing or lending making it equivalent to outright taking or disposal
  • This can be seen in Marshall (1998)
  • DPP v J and others (2002) – the taking and destroying of property can amount to an intention to permanently deprive; in this case it was headphones that were taken and then returned
Lloyd (1985) – in this case, the removal of films from a cinema for a short time so they could be illegally copied did not amount to an intention to permanently deprive
  • Velumyl (1989) – the defendant had intended to permanently deprive the owner of his property as he clearly did not intend to return the same notes and coins, even if he returned items of a similar value
  • Lavender (1994) – the wider approach to the interpretation of intention permanently to deprive was taken here so as to convict a person who swapped internal doors from another council house to his council house
mens rea element 2 dishonesty
Mens rea: element 2Dishonesty
  • The meaning of dishonesty is not defined in the Theft Act 1968. It was assumed by the draftsmen of the Act that everyone would know what the word meant and therefore a jury or magistrates would be able to decide easily enough. The Act did, however, give three specific situations where a person would be deemed not to be dishonest in s2, whilst noting in s2(2) that a person may still make a dishonest appropriation even though he is willing to pay for the property
Section 2 is as follows:
  • 1) a person’s appropriation of property belonging to another is not to be regarded as dishonest-
  • A) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or a third party; or
  • B) if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or
  • C) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps
The first exception requires an honest, but not necessarily reasonable, belief in the defendant of his right to take an item. This is a subjective test, so the sole concern is for the defendant to convince a jury that he reasonably held that belief
  • Small (1987) – this is an example of s2(1)(a) of the Theft Act 1968 operating to prevent the conviction of the defendant, who genuinely believed that the car he had taken was abandoned
The second exception requires an honest belief that the owner of the goods would consent if he knew of the circumstances (taking a pen without asking and returning it)
  • The third exception most usually applies in situations of finding items and then keeping them. This again requires an honest belief by the defendant that the owner cannot be found by taking reasonable steps.
  • Where these exceptions do not apply, the courts have developed a test for dishonesty.
Ghosh (1982) – this case set out the definitive test for what amounts to be dishonesty; the two part test is:
  • 1. Would the defendant’s behaviour be regarded as dishonest by the standards of reasonable and honest people?
  • (If the answer is ‘no’, the defendant is not guilty of theft as he has not been dishonest) If the answer is ‘yes’ the second question is:
  • 2. Was the defendant aware that his conduct would be regarded as dishonest by reasonable and honest people?
  • It can be seen that the first part of the test is objective and the second part of the test is subjective. If both parts of the test are satisfied, the defendant fulfils the criteria for being dishonest