2.2 Offences Against Property

• Offences against property deal with unlawful interference with another’s possessions, money, or property rights.
• Theft Act 1968 redefined and simplified the law on theft, consolidating prior common law larceny.
• Central offence: Theft (s.1).

Theft (s.1 Theft Act 1968)

• Definition (s.1(1)):
  • “A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.”
• Five elements of theft:
  1. Appropriation (s.3)
  2. Property (s.4)
  3. Belonging to another (s.5)
  4. Dishonesty (s.2)
  5. Intention to permanently deprive (s.6)
• All elements must be proved beyond reasonable doubt.

This section focuses on Dishonesty (s.2).

Dishonesty (s.2 Theft Act 1968)

Importance

• Dishonesty is the moral fault element of theft.
• Appropriation, property, belonging to another are objective; dishonesty makes theft blameworthy.
• Without dishonesty, appropriation may be innocent (e.g., borrowing with consent).

Statutory Provisions

s.2(1) Theft Act 1968 — Circumstances where appropriation is not dishonest

• A person is not dishonest if he appropriates property in the belief that:

  (a) He has a legal right to deprive the other of it.

  • Even if belief is mistaken or unreasonable.
  • Case: R v Robinson [1977] Crim LR 173
    • D used force to recover money owed; honest belief of entitlement. Not dishonest under s.2(1)(a).

  (b) Owner would have consented if they knew.

  • E.g., D takes food believing owner would consent in circumstances.

  (c) Owner cannot be discovered by taking reasonable steps.

  • Applies to “lost” property.
  • Case: R v Small [1987] Crim LR 778
    • D took abandoned car, believing owner could not be found. Conviction quashed.
• Key Point: These are subjective beliefs — even if unreasonable, if genuinely held, they prevent dishonesty.

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course

s.2(2) Theft Act 1968 — Willingness to pay does not prevent dishonesty

• Even if D is willing to pay, conduct may still be dishonest.
• Example: Taking someone’s newspaper intending to pay retail price still dishonest.
• Clarifies that consent/payment must be from owner, not imposed unilaterally by D.

Judicial Development of Dishonesty

Because statute does not define “dishonesty” positively, courts developed tests.

The Ghosh Test — now replaced

• R v Ghosh [1982] QB 1053
  • Two-stage test:
    1. Was conduct dishonest by ordinary standards of reasonable people? (objective).
    2. Did D realise that ordinary people would see it as dishonest? (subjective).
  • Applied widely in theft/fraud cases for 35 years.
• Criticisms:
  • Confusing for juries: subjective limb difficult to apply.
  • Allowed dishonest defendants to escape liability if they lacked awareness of community standards.

The Ivey Test — current law

• Ivey v Genting Casinos [2017] UKSC 67
  • Facts: Professional gambler used “edge-sorting” technique to gain advantage. Civil case, but SC gave ruling on dishonesty.
  • Held: Test for dishonesty is only objective:
    1. Ascertain defendant’s actual state of knowledge or belief as to facts.
    2. Then decide whether conduct was dishonest by standards of ordinary decent people.
  • Removed subjective limb of Ghosh.
• Confirmed in criminal law:
  • R v Barton & Booth [2020] EWCA Crim 575 – Court of Appeal confirmed Ivey test applies to criminal cases.

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course

Current Test for Dishonesty

1. Identify what D knew/believed about the facts (subjective knowledge).
2. Apply objective standards: Was conduct dishonest by standards of ordinary decent people?
3. D’s personal belief in honesty irrelevant (no subjective limb).

Case Applications

• R v Robinson (1977) – belief in legal right negates dishonesty.
• R v Small (1987) – belief owner could not be found negates dishonesty.
• R v Holden (1991) – employee believed authorised to take scrap tyres; conviction quashed.
• R v Hinks [2000] 3 WLR 1590 – appropriation may be dishonest even if property validly gifted; dishonesty for jury.
• Ivey (2017) – current test.
• Barton & Booth (2020) – criminal confirmation of Ivey.

Evaluation and Criticisms

• Strengths:
  • Ivey test simplifies law; easier for juries (one objective test).
  • Prevents dishonest defendants escaping by claiming ignorance of moral standards.
  • Aligns civil and criminal law.
• Weaknesses:
  • Still vague: “ordinary decent people” standard uncertain, varies by jury.
  • Risk of moral relativism: different communities may view conduct differently.
  • Some academics argue subjective limb in Ghosh protected defendants with unusual moral understanding.
• Effectiveness and Fairness:
  • Law balances protection of property rights with fair limits on liability.
  • Retains discretion for juries to reflect community standards.

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course

Exam Application

• Step 1: Apply statutory exceptions (s.2(1)(a–c), s.2(2)).
• Step 2: Apply Ivey test:
  • What did D believe about facts?
  • Would ordinary decent people find behaviour dishonest?
• Step 3: Refer to cases: Robinson, Small, Holden, Hinks, Ivey, Barton.
• Step 4: Evaluate fairness and effectiveness of outcome.

Conclusion

• Dishonesty (s.2) is the moral heart of theft.
• Defined negatively in statute with exceptions, but clarified by case law.
• Current test: Ivey objective standard, confirmed in Barton.
• Despite criticisms of vagueness, it provides workable balance between legal certainty and flexibility for justice.