Theft

(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; and “thief” and “steal” shall be construed accordingly.

(2) It is immaterial whether the appropriation is made with a view to gain, or is made for the thief’s own benefit.

(3) The five following sections of this Act shall have effect as regards the interpretation and operation of this section (and, except as otherwise provided by this Act, shall apply only for purposes of this section).

(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 of a third person; 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.

(2) A person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.

(1) Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.

(2) Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor’s title, amount to theft of the property.

(1) “Property” includes money and all other property, real or personal, including things in action and other intangible property.

(2) A person cannot steal land, or things forming part of land and severed from it by him or by his directions, except in the following cases, that is to say—

(a) when he is a trustee or personal representative, or is authorised by power of attorney, or as liquidator of a company, or otherwise, to sell or dispose of land belonging to another, and he appropriates the land or anything forming part of it by dealing with it in breach of the confidence reposed in him; or

(b) when he is not in possession of the land and appropriates anything forming part of the land by severing it or causing it to be severed, or after it has been severed; or

(c) when, being in possession of the land under a tenancy, he appropriates the whole or part of any fixture or structure let to be used with the land.

For purposes of this subsection “land” does not include incorporeal hereditaments; “tenancy” means a tenancy for years or any less period and includes an agreement for such a tenancy, but a person who after the end of a tenancy remains in possession as statutory tenant or otherwise is to be treated as having possession under the tenancy, and “let” shall be construed accordingly.

(3) A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or other commercial purpose.

For purposes of this subsection “mushroom” includes any fungus, and “plant” includes any shrub or tree.

(4) Wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the carcase of any such creature, unless either it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or another person is in course of reducing it into possession.

(1) Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest).

(2) Where property is subject to a trust, the persons to whom it belongs shall be regarded as including any person having a right to enforce the trust, and an intention to defeat the trust shall be regarded accordingly as an intention to deprive of the property any person having that right.

(3) Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to the other.

(4) Where a person gets property by another’s mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds.

(5) Property of a corporation sole shall be regarded as belonging to the corporation notwithstanding a vacancy in the corporation.

(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 of 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.

(2) Without prejudice to the generality of subsection (1) above, where a person, having possession or control (lawfully or not) of property belonging to another, parts with the property under a condition as to its return which he may not be able to perform, this (if done for purposes of his own and without the other’s authority) amounts to treating the property as his own to dispose of regardless of the other’s rights.

Theft is triable either-way with a maximum penalty in the Crown Court of seven years' imprisonment and/or an unlimited fine.

In a Magistrates’ Court, the maximum penalty depends on when the offence was committed:

For offences committed prior to Monday 2 May 2022, the maximum penalty for a single either-way offence is up to 6 months' imprisonment and/or an unlimited fine; for two or more either-way offences, the maximum penalty is up to 12 months' imprisonment and/or an unlimited fine;

For offences committed on or after 00.01am on Monday 2 May 2022, the maximum penalty available for a single offence either-way offence, and for two or more either-way offences, is up to 12 months' imprisonment and/or an unlimited fine [see The Criminal Justice Act 2003 (Commencement No. 33) and Sentencing Act 2020 (Commencement No. 2) Regulations 2022].

There is an exception for low value shoplifting as defined by section 22A(1) of the Magistrates' Courts Act 1980 (MCA 1980). Low-value shoplifting means where the value of the stolen goods does not exceed £200.

The case of Candlish v DPP [2022] EWHC 842 (Admin) considered the point at which a low value shoplifting offence is determined to be summary only. In that case the defendant faced eight offences of shoplifting at various stores between July and August 2018. Each offence concerned goods valued at between £7.66 and £163.00, with a total (aggregate) value of £442.57. The prosecution was commenced via a postal requisition issued in April 2019, i.e. outside the 6-month time limit applicable to summary only offences by virtue of s.127 Magistrates Courts Act 1980 (MCA 1980).

The High Court confirmed that ‘low value’ shoplifting is an either-way theft offence until the Court considers plea and allocation at the defendant’s first appearance. The Court noted “low value shop theft allegations should not be treated as summary stand-alone offences, notwithstanding their aggregate value, up to the point of plea and allocation; thereby instigating the six-month time limit to lay an information imposed by virtue of MCA 1980 s 127.” Consequently, offences of low value theft which are charged outside the 6-month time limit for summary only offences (under s.127 MCA 1980) are not time-barred.

Prosecutors should note that that this does not deprive an accused of protection against unwarranted delays in the charging and prosecution of such offences. If there is an egregious delay in the charging of such offences, especially if there had been any unfair manipulation of the process by the police, then this might form the basis of an application to stay any proceedings arising from them

Low-value shoplifting remains an offence which is triable either-way in the following circumstances:

an adult defendant must be given the opportunity to elect Crown Court trial, including where the aggregate value of the offence(s) is below £200. If the defendant so elects, the case will be ‘sent’ to the Crown Court for trial (section 22A(2) MCA 1980);

an adult defendant is charged with one or more shoplifting offences where the aggregate value of goods stolen exceeds £200 – see Candlish v DPP [2022] EWHC 842 (Admin) and R v Harvey [2020] EWCA Crim 354. In that event, the Court will proceed to consider plea and allocation in the normal way for either-way offences.

Where a defendant is ‘sent’ for trial for an indictable offence, any related offences (whether either-way or summary only) must at the same time be sent to the Crown Court pursuant to s.51 Crime and Disorder Act 1998. Where low-value shoplifting matters are ‘sent’ to the Crown Court as related offences together with another indictable offence, prosecutors should note it is good practice for the sending Court to specify whether the low-value shoplifting offences are considered to be summary only matters (i.e. where the aggregate value is below £200) - which may then be endorsed on the certificate of sending.

Any summary-only low value shoplifting offences which are ‘sent’ to the Crown Court may not appear on an indictment and may not be tried by the Crown Court (as such matters are not included in the list of summary only offences specified in section 40 of the Criminal Justice Act 1988. See also R v McDermott-Mullane [2016] EWCA Crim 2239). However, following a conviction for an indicted offence, the Crown Court may invite the defendant to indicate a plea to summary only offences. If a guilty plea is indicated, the Crown Court may sentence the defendant in accordance with Magistrates’ Court sentencing powers (see Schedule 3, paragraph 6 of the Crime and Disorder Act 1998).

The offence of attempting to commit low value shoplifting is preserved by section 176(5)(b) of the Anti-Social Behaviour, Crime and Policing Act 2014, which amends the Criminal Attempts Act 1981.