Theft Act 1968: Appropriation and Dishonesty Elements

Theft — s.1 Theft Act 1968

Definition: Dishonestly appropriating property belonging to another with the intention of permanently depriving the other of it.

All five elements must be proved.

Appropriation — s.3 Theft Act 1968

• s.3(1): Any assumption of the rights of an owner amounts to appropriation; this includes where D has come by property innocently and later assumes a right by keeping or dealing with it as owner.
• Appropriation can occur even where the owner consents to the taking — R v Gomez [1993] AC 442 (HL) (deceptively obtained consent does not prevent appropriation).
• Appropriation can occur even where property is received as a valid gift — R v Hinks [2001] 2 AC 241 (HL) (a fully constituted civil-law gift can still amount to theft if the other elements are satisfied).
• Appropriation is ordinarily treated as a single act at the moment D assumes the owner's rights, not a continuing course of conduct (though note the distinct "later assumption" limb in s.3(1) for innocent acquisition).

Dishonesty — s.2 Theft Act 1968 & Ivey v Genting Casinos

Statutory non-dishonesty (s.2(1) TA 1968)

D is not dishonest if D appropriates in the honest belief that:

• (a) D has in law the right to deprive the other of it (s.2(1)(a));
• (b) D would have the other's consent if the other knew of the appropriation and the circumstances (s.2(1)(b)); or
• (c) the person to whom the property belongs cannot be discovered by taking reasonable steps (s.2(1)(c)) — applicable to lost or abandoned property.

• s.2(2): A willingness to pay for the property does not by itself negate dishonesty.

The Ivey Test (replacing Ghosh)

Where s.2(1) does not provide a negative answer, dishonesty is assessed by the two-stage test from Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67:

1. Ascertain the defendant's actual state of knowledge or belief as to the facts — this is a subjective finding.
2. Ask whether the conduct was dishonest by the objective standards of ordinary, reasonable and honest people — applying those facts as found.

Ivey disapproved the second (subjective) limb of the direction in R v Ghosh [1982] QB 1053 (CA), which asked whether D realised that ordinary honest people would regard the conduct as dishonest. Although Ivey was a civil case, the Court of Appeal confirmed the Ivey test is binding in criminal proceedings in R v Barton and Booth [2020] EWCA Crim 575, holding that Ghosh should no longer be followed.

Common Traps

• The owner's consent does not prevent appropriation — Gomez and Hinks make clear that consent goes to dishonesty, not appropriation.
• The Ghosh subjective second limb is no longer good law — apply Ivey only.
• s.2(1)(a)–(c) are belief-based statutory exemptions that automatically negate dishonesty if genuinely held — always check these before applying the Ivey test.
• s.2(2) is a trap: offering to pay does not make D honest.

Exam tip: In theft scenarios, confirm appropriation first (consent is irrelevant per Gomez/Hinks), then apply the s.2(1) statutory exemptions, then the two-stage Ivey test if none of those exemptions applies.