Theft Act Offences

Updated 25 November 2019|Legal Guidance, Fraud and economic crime

General Issues

The purpose of this Legal Guidance is to assist prosecutors in selecting the right charge in accordance with the Code for Crown Prosecutors when reviewing cases which may fall under either the Theft Act 1968 ("the 1968 Act") or the Theft Act 1978 ("the 1978 Act"). Whilst theft and the other offences under the 1968 and 1978 Acts may appear straightforward and often are straightforward on the facts of a specific case, there are also potential pitfalls which prosecutors need to be aware of when deciding, for instance, what is the correct charge for someone who has dishonestly cashed a cheque.

There is further guidance on these topics in Blackstone's Criminal Practice Section B4 "Theft, Handling Stolen Goods and Related Offences."

Introduction

This Guidance deals with the most common offences under the Theft Act 1968 ("the 1968 Act") and the Theft Act 1978 ("the 1978 Act"). It does not deal with offences under the Fraud Act 2006 or the Proceeds of Crime Act 2002. Those offences are the subject of separate guidance which can be accessed here and here.

Dishonesty

“Dishonesty” is an essential element in most offences under the 1968 and 1978 Acts but it is not comprehensively defined in either.

The leading case on the test for "dishonesty" is Ivey v Genting Casinos [2018] AC 391. The Supreme Court ruled that whether or not a defendant’s conduct should be considered dishonest was to be decided in accordance with what ordinary, decent people would consider it to be. It was not necessary that the defendant themselves should be aware that ordinary people would consider the conduct dishonest.

See also the discussion on "Dishonestly" below.

Recent Possession

Where a defendant is found in possession of property which can be proved to have been stolen recently, then in the absence of some credible explanation the jury may use their common sense to conclude that the defendant is guilty of stealing the property (including thefts in the course of robbery or burglary) or handling it. The courts have repeatedly emphasised that “recent possession” is no more than the application of common sense and is not a legal doctrine as such.

Fraud

The Fraud Act 2006 abolished sections 15, 15A, 16 and 20(2) of the 1968 Act and sections 1 and 2 of1978 Act (all various offences of deception) with effect from 15 January 2007. Offences which pre-date this will still need to be charged under the 1968 or 1978 Acts.

For charges under the Fraud Act see the separate legal guidance on that Act which can be accessed here.

Where an offence has been "partly committed" before 15 January 2007 it will be covered by the transitional provisions of Schedule 2 of the Fraud Act. Where it is not possible to ascertain whether the offence was committed (partly or entirely) before or after this date, charges can be brought in the alternative under the Fraud Act 2006 and the 1968 or 1978 Act for the court to decide which offence is proved.

Proceeds of Crime

Where the defendant has a "criminal lifestyle" as defined by section 75 of the Proceeds of Crime At 2002 ("POCA") the prosecution may seek a confiscation order to deprive them of the benefit of their crimes. See Proceeds of Crime elsewhere in this Legal Guidance.

Some offences under POCA (such as sections 327, 328 or 329) may be charged as an alternative to charges under the 1968 Act, especially handling stolen goods (see below in this chapter.)

Theft: Robbery, Burglary, Handling and Going Equipped

The following offences under the Theft Act 1968 all incorporate the concept of theft/stealing as one of the elements of the offence:-

  • robbery (section 8),
  • burglary by stealing or entering with intent to steal (sections 9 and 10)
  • handling stolen goods (section 22) and
  • going equipped to steal or commit burglary with intent to steal (section 25)

Prosecutors considering these offences (or any attempt to commit them) will need to ensure that the elements required to prove theft under section 1 are made out before the case can proceed.

Jurisdiction

Under the Criminal Justice Act 1993 Part I certain offences under the 1968 Act are justiciable in England and Wales, despite not every act or omission forming an essential element of the offence having taken place within the jurisdiction, provided that at least one of the acts or omissions did so.

Section 14 of the 1968 Act specifically provides that theft or robbery involving mail in the course of transit within the British postal area may be prosecuted within England and Wales even if the offence took place outside the jurisdiction.

Offences

Theft

Elements

Theft is defined by section 1 of the 1968 Act as dishonestly appropriating property belonging to another with the intention of permanently depriving the other of it. Sections 2 – 6 of the 1968 Act provide further interpretation of these elements.

"Dishonestly"

Section 2 of the 1968 Act specifies that appropriation is not dishonest if the person doing it believes that

  • They have a legal right to take the property; or
  • The owner would agree to their taking it if they knew about it; or
  • They could not find the person to whom the property belongs by taking reasonable steps. (Does not apply to people who came by the property as trustees or personal representatives.)

It also provides that appropriation may still be dishonest if the person was willing to pay for the property they have taken.

However, the 1968 Act does not provide a complete definition of “dishonesty”.

In Ivey v Genting Casinos [2018] AC 391 the Supreme Court set out the test to be applied in determining the issue:

“…the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual's knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest."

Although Ivey was a civil case, and so its application to criminal law was strictly speaking obiter, the Divisional Court adopted this as the correct approach in DPP v Patterson [2017] EWHC 2820 (Admin), Sir Brian Leveson observing that it was “difficult to imagine the Court of Appeal preferring Ghosh (the previous leading case on the meaning of ‘dishonestly’) to Ivey in the future.”

‘Appropriates’

Section 3 of the 1968 Act provides that any assumption of the rights of an owner amounts to appropriation, including keeping property which was originally come by honestly or by dealing with it as an owner.

“Appropriates” does not require to be read as “misappropriates” and so there is no need to show that the property was taken without the owner’s consent. (Lawrence v Metropolitan Police Commissioner (1971) Cr App R 471: D, a taxi driver, was guilty of theft when the victim (a tourist who spoke little English) had permitted him to remove cash from his wallet which was far in excess of the fare payable. DPP v Gomez (1993) 96 Cr App R 359 confirmed that “appropriation” does not require adverse interference with or usurpation of the rights of an owner.)

‘Property’

This includes intangible property (e.g. a credit in a bank account.)

See section 4 for the limitations on “theft” as it applies to land/buildings, wild plants or animals.

‘Belonging to another’

Section 5 provides that property “belongs to another” where that person

  • has possession or control of it; or
  • has given it to the defendant subject to an obligation that it is dealt with in some particular way; or
  • has given it to the defendant by mistake and the defendant is under an obligation to restore it to them (in whole or in part); or
  • is the beneficiary of a trust to which the property is subject.

The definition does not include any need for the property to be lawfully held by the person in possession or control of it. Therefore, for example, a charge of theft will be made out where the property consists of drugs in someone’s unlawful possession or of property which the “victim” has themselves stolen.

Even where someone has a right of ownership of property which is in possession of another they may still be guilty of stealing that property. In R v Turner (1971) 55 Cr App R 336 D was found guilty of theft of his own car after taking it without paying, from the garage which had carried out repairs on it. The question of who had a “better” right to the car was irrelevant.

The property must belong to another at the time of appropriation.

In most cases this will not be an issue. However, it may arise where the legal ownership of the property has passed before payment is required. The most common instances are where someone consumes a meal in a restaurant and leaves without paying the bill or refuels a car and drives off from a service station without making payment.

If the prosecution can prove that the defendant dishonestly formed the intention not to pay for the food or fuel before consuming/taking it there is no problem with charging an offence of theft – the property belonged to another when the dishonest appropriation took place.

The problem arises where the defendant only formed the dishonest intention not to pay for the property after it was consumed/taken. In such circumstances the property does not ‘belong to another’ when the dishonest intention is formed and there is therefore no theft. (Even if the dishonest intention was in fact formed before the act, it is often difficult to prove this).

See (Edwards v Ddin [1976] 1 WLR 942. See also Corcoran v Whent [1977] Crim LR 52.)

This situation was rectified by the creation of the offence of making off without payment in the Theft Act 1978. For a further discussion on this topic, see “Making Off Without Payment” below.)

‘Intending to permanently deprive’

Section 6 provides guidance on what may be included as falling within an intent to deprive permanently but there is no exhaustive definition of the concept which is a question of fact for the tribunal.

A defendant may be regarded as having the intent permanently to deprive even though they do not intend the victim to “lose the thing itself” if they intend to treat the item as their own to dispose of regardless of the victim's rights.

Examples given in section 6(1) and (2) include a borrowing or lending (if in the circumstances it amounts to an “outright taking or disposal” (section 6(1)) or parting with the property conditionally where the defendant may not be able to fulfil the conditions to get it back (section 6(2).

These examples would cover circumstances such as someone who borrows a season ticket for so long as to deprive the owner of much of its benefit before returning it or someone who pawns property belonging to another.

In R v Vinall [2012] 1 Cr App R 29 the Court of Appeal said:

“What section 6(1) requires is a state of mind in the defendant which Parliament regards as the equivalent of an intention permanently to deprive, namely “his intention to treat the thing as his own to dispose of regardless of the other's rights”. The subsection does not require that the thing has been disposed of, nor does it require that the defendant intends to dispose of the thing in any particular way. No doubt evidence of a particular disposal or a particular intention to dispose of the thing will constitute evidence of the defendant's state of mind but it is, in our view, for the jury to decide upon the circumstances proved whether the defendant harboured the statutory intention.”

When a vehicle is taken in the normal course of events it can be expected that the car will be recovered, identified and returned to the owner. For this reason prosecutors should normally proceed on an offence of taking without consent (see below) where there is no evidence that the defendant intended to do anything other than simply use the vehicle before abandoning it. However, where there is evidence that e.g. the index plate was changed or that the vehicle was deliberately written off or destroyed (for example by fire), that might be sufficient to establish intent to permanently deprive. See also R v Mitchell [2008] EWCA 850 and commentary on “Steals” under “Robbery” below in this chapter.

If someone takes cash without the owner’s consent intending to repay it then the fact that they intend to repay it may go to the issue of dishonesty but will not negate the intention to permanently deprive, unless the defendant intends to return the very same notes or coins to their owner.

General deficiency charge

It is acceptable to include in a single charge an aggregate sum of money stolen by a defendant over a period where the evidence does not establish the precise dates for each transaction. The common law exceptions which allowed this have now been subsumed into the Criminal Procedure Rules 2015 rule 10.2(2).

Alternative Charges: Fraud Act 2006

Given the wide interpretation which the courts have made of the elements of theft there is obviously a great deal of overlap between theft and the various offences under the Fraud Act. Where the offence consists of taking something without permission then for ease of presentation prosecutors should charge it under the 1968 Act. Where it consists of tricking somebody into parting with possession then it will usually be better to charge it under the Fraud Act.

See the separate Legal Guidance on the Fraud Act 2006.

Public Interest

Sentencing guidelines for theft have been issued by the Sentencing Council. Theft can cover a wide range of financial harm, from something as minor as stealing a paperclip to theft of goods worth millions of pounds.

Financial loss is one factor which will be relevant to whether a prosecution is needed in the public interest but the impact on the victim of the theft of even low value goods can be significant. Examples of thefts of low value goods where a prosecution might well be in the public interest would include items of sentimental value or items loss of which causes significant inconvenience, such as house keys.

Prevalence is another factor which may indicate that a prosecution is required in the public interest. Offences of theft of metal such as copper from railway networks or lead from church roofs can have a large impact on the community. Community impact statements will usually be needed so that the court is able to take this impact into account when passing sentence

Allocation and Penalty

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

There is an exception for low value shoplifting as defined by section 22A(1) of the Magistrates' Courts Act 1980 (“MCA”), which states that low value shoplifting “is triable only summarily”. This is now a summary only offence, subject to the defendant still having the right to elect to be tried at the Crown Court under s22A(2). 

Where the defendant does not elect for Crown Court trial then the offence, because it remains summary only until the defendant so elects, cannot be added to the indictment under section 40 of the Criminal Justice Act 1988 (R v McDermott-Mullane [2016] EWCA Crim 2239.)

Section 22A is unequivocal in stating that low value shoplifting is summary only offence. The effect of this is that (unlike criminal damage which retains its either way status but is treated “as if” it is summary only) low value shoplifting will be time barred under section 127 MCA unless the information was laid or the postal requisition issued within six months of the date of the alleged offence.

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.

For the availability in the Crown Court of a verdict of taking a conveyance without consent as an alternative to theft, see “Taking Without Consent” and “Aggravated TWOC” below in this chapter.

Robbery

Elements

Section 8(1) of the 1968 Act defines robbery as follows:

"A person is guilty of robbery if he 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 subjected to force."

Section 8(2) provides for the offence of "assault with intent to rob."

'Steals'

"Steals" must be interpreted in accordance with the definition provided for "theft" in sections 1 – 6 of the 1968 Act.

If all the elements of theft are not made out on the evidence then neither will the robbery be made out. (This will also apply to the defendant's intention in the case of assault with intent to rob.) In R v Mitchell [2008] EWCA 850 the Court of Appeal dealing with a case in which the owner had been forcibly removed from her car which had then been driven away said:

"Of course, everything about the taking and use of the BMW, like any car taken away without the owner's authority, indicates an intention to treat such a car regardless of the owner's rights. That is the test of conversion in the civil law. But not every conversion is a theft. Theft requires the additional intention of permanently depriving the owner or the substituted intention under s 6(1). The fact that the taking becomes more violent, thereby setting up a case of robbery, if there is an underlying case of theft, does not in itself turn what would be a robbery, if there was a theft, into a case of robbery without theft.

The theft has to be there without the violence which would turn the theft into robbery."

'Immediately before or at the time of'

Once the theft is complete any force used subsequently cannot amount to robbery as later force will not fall within the definition. However, the courts have held that appropriation is a continuing act it would be artificial to attempt to draw a line determining the precise moment it ends. Whether the theft is still in the course of being committed is a question of fact which must be left to the jury to determine. “To say that the conduct is over and done with as soon as he lays hands upon the property, or when he first manifests an intention to deal with it as his, is contrary to common-sense and to the natural meaning of words."(R v Hale (1979) 68 Cr. App. R. 415) See also R v Lockley [1995] Crim LR 656.

'Force'

What amounts to"force" is a question of fact for the jury. A jury was entitled to find that force had been used to steal a shopping basket where the defendant had wrenched it from the victim's hand (R v Clouden [1987] Crim LR 56, However see also P v DPP [2012] EWHC 1657 (Admin) where snatching a cigarette from between the victim’s fingers without making direct contact with her was not "force used upon the person."

The force must be used in order to steal. If a defendant were to punch a victim and knock them out, before forming the intention to steal their watch, this would be theft but not robbery (although a charge of assault may also lie).

Assault with Intent to Rob

Where there is an assault with intent to rob there will often be an attempted robbery. Where there is strong evidence of an assault, prosecutors should consider charging assault with intent to rob as it will avoid some of the technical difficulties involved in proving attempt (such as whether the acts relied on are more than merely preparatory.) It will also allow for the jury to return an alternative verdict of assault.

Allocation and Penalty

Robbery is indictable only, punishable with life imprisonment or an unlimited fine or both.

Burglary

Elements

Section 9 of the 1968 Act deals with burglary. Burglary consists of

  • entering a building or part of a building as a trespasser intent to commit theft, grievous bodily harm or criminal damage; or
  • having entered as a trespasser, stealing or inflicting/attempting to inflict grievous bodily harm.

The maximum penalty will depend on whether the building (or part) entered is a dwelling house or not. If it is, then this must be pleaded in the charge/indictment because the effect of the increased penalty where it is a dwelling is to make burglary dwelling a separate offence from burglary of a non-dwelling (applying the principle in R v Courtie [1984] AC 463 .)

'Entry'

A partial entry is sufficient and so where a defendant puts any part of his body within the building this is capable of amounting to burglary (R v Brown (Vincent) [1985] Crim L.R. 212, see also R v Ryan [1996] Crim L.R. 320.)

'Building'

This is not comprehensively defined in the statute, although section 9(4) provides that it includes any inhabited vehicle or vessel. It is implicit in the wording of the subsection that uninhabited vehicles and vessels will not be “buildings” for the purposes of the 1968 Act. The trailer of an articulated lorry was held not to be a building since it did not lose the character of being a vehicle by adaptations made to it (such as being connected to the electricity supply) or the intention that it should remain stationary for a long period. (Norfolk Constabulary v Seekings and Gould [1986] Crim L.R. 167)

In B v Leathley [1979] Crim LR 314 the court used the definition given by Byles J in a case pre-dating the 1968 Act (Stevens v Gourley (1859) CBNS 99: “a structure of considerable size and intended to be permanent or at least to endure for a considerable period”) to decide that a freezer container in a farmyard was a building.

'Trespasser'

The defendant must have been a trespasser when they entered the building (and to establish mens rea, must have been aware of this fact.) The civil doctrine of “trespass ab initio” (whereby a person who has authority to enter and later abuses that authority is deemed to have been a trespasser from the outset) does not apply in criminal law.

A person who enters with the occupier’s permission will still be a trespasser if they enter for some purpose which they know is outside the scope of the permission granted (or are reckless as to the scope of the permission granted.) A defendant who went to his father’s house to steal two television sets had entered as a trespasser notwithstanding the fact he had his father’s general permission to enter the house. His father had given him permission to enter but had never given him permission to enter for the purpose of stealing from inside it. (R v Jones [1976] 3 All ER 54.)

There will be a trespass where a person moves from a part of a building where they have permission to be to another part where they do not. For example, a member of the public who has the right to be in a shop will not usually have the right to go behind the counter or into the staff cloakroom.

'Steal'

If the burglary is on the basis of stealing (either as the intent when entering under section 9(1)(a) or as the act done after entry under 9(1)(b)) then the elements of theft will need to be proved before the burglary can be made out.

'Dwelling'

What is a "dwelling" will be a question of fact in each case. There is no comprehensive definition within the 1968 Act, although section 9(4) does provide for an inhabited vehicle or vessel to be a dwelling for the purposes of the section. Gross LJ delivering the judgment of the Administrative Court in R v Hudson [2017} EWCH 841 (Admin) whilst holding that it was for the tribunal of fact to determine, said “In broad terms, the more habitable a building as a matter of fact, the more, other things being equal, it is likely to be a "dwelling" within s.9(3)(a) of the Act. Beyond that I would not go.”

Prosecutors should treat with caution the (unreported) case of R v Rodmell (1994) which is sometimes cited as authority for the proposition that a garden shed is a “dwelling.” Prosecutors should bear the following factors in mind when interpreting the decision:

  • Rodmell was an appeal against sentence on the basis that the judge had sentenced too harshly and had erred by categorising it as “domestic”. This was the sole issue in the appeal and the term “dwelling” was never used in the judgment.
  • The case pre-dated the Powers of the Criminal Courts (Sentencing) Act 2000 (“the PCC(S) A”) section 111(5) of which defines “domestic” burglary as burglary of a dwelling for the purposes of the three strike rule. The definition cannot be retrospectively applied to the use of the word “domestic” by the Court of Appeal some years earlier.
  • The transcript of the judgement by the Court of Appeal does not suggest that the defendant was charged with burglary of a dwelling (following R v Courtie above.) Had he been charged with burglary of a dwelling the defence would presumably have appealed against conviction and not just sentence as it would not have been open to them to argue that a conviction for burglary of a dwelling could be anything other than “domestic.”
  • There is no reported case since which has unequivocally held that a domestic garden shed is, simply by virtue of being in a domestic (rather than e.g. a commercial) setting, a “dwelling.”

Prosecutors should be similarly cautious in interpreting the case of R v Massey [2001] EWCA CRIM 531, sometimes cited as authority for the proposition that an occupied hotel room is a dwelling.

The Court of Appeal said that burglary of a hotel room with theft of the guest’s personal possessions was “much more akin” to burglary of domestic premises than it was to burglary of a small shop or business. It did not say that burglary of an occupied hotel room was in fact a burglary of domestic premises.

Prosecutors should adopt a common sense approach to what is a “dwelling” and treat each case on its own facts using the normal and natural meaning of the word. Where the facts are relevant, Rodmell and Massey may be cited to the court to assist with sentencing.

Charging Decisions

Where a theft takes place in circumstances which fall within the definition of burglary on the basis of a legal technicality (such as a technical trespass – see below) prosecutors should charge theft. This gives court sufficient sentencing powers and enables the case to be presented clearly without the further complications of proving the additional elements required in burglary.

For instance, shoplifting by a person who has been banned from a store or by a person who has entered with the intention of shoplifting (so not a bona fide shopper) would both be burglary, as would someone stealing by reaching over a counter to steal goods on a shelf behind it but nothing will be added to the case by proceeding on a burglary rather than a theft. Burglary should be reserved for serious cases where there is significant encroachment into a private or exclusionary area.

Where violence or threats of violence are used to effect a theft from inside the building, prosecutors should normally charge robbery in order to reflect the seriousness of the offence and to give the court adequate sentencing powers. See “Robbery” above.

Allocation and Penalty

Burglary is an either way offence, except in the following circumstances, when it is indictable only:

  1. the offence committed (or intended) is indictable only (Schedule 1, paragraph 28 of the Magistrates’ Courts Act 1980) ; or
  2. the burglary was in a dwelling and any person in the dwelling was subjected to violence or the threat of violence (Schedule 1, paragraph 28 of the Magistrates’ Courts Act 1980); or
  3. the burglary was a domestic burglary, the accused is 18 or over and at the date of the offence had previously been convicted on two separate occasions of domestic burglary committed after 30 November 1999 (section 111(4) of the PCC(S)A). This is sometimes referred to as the “three strike rule.” Note that it applies only to the substantive offence and not to attempts, conspiracies etc. See Annexe A for the chronology which determines whether a defendant is subject to this rule (the “three strikes rule”).

The offence carries a maximum penalty at the Crown Court of

  • 14 years imprisonment in the case of a burglary of a dwelling (with a minimum term of 3 years where section 111 of the PCC(S)A “the three strikes rule is engaged); or
  • 10 years in any other case.

In the magistrates’ court the maximum penalty is six months imprisonment and/or an unlimited fine.

Aggravated Burglary

Elements

Aggravated burglary is defined at section 10 of the 1968 Act as follows:

“A person is guilty of aggravated burglary if he commits any burglary and at the time has with him any firearm or imitation firearm, any weapon of offence, or any explosive.”

Burglary

Evidence is required to establish one of the offences of burglary under section 9 of the 1968 Act.

‘Has with him’

Where the same phrase has been used in other statutory offences, the courts have interpreted it to extend beyond physical carrying of the weapon. Relevant considerations include how immediately accessible the item is, how close it is, the context of any proposed criminal enterprise and the purpose of the legislation creating the offence. (R v Henderson [2017] 1 Cr App R 4.)

‘Firearm’

Includes an airgun or air pistol: section 10(1)(a). Where a firearm or imitation firearm is carried this should form the subject of a separate charge. See the chapter on Firearms elsewhere in this Legal Guidance.

‘Weapon of offence’

Defined in section 10(1)(b) as “any article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him for such use.” Whilst this is similar to the definition used in the Prevention of Crime Act 1953 (“PCA”) it differs by the inclusion of items made/adapted/intended to incapacitate.

In the case of R v Kelly (1993) 97 Cr App R 245 the Court of Appeal held that where D used a screwdriver (which he had taken with him in order to break into a property) to assault the occupant who had surprised him during the burglary, the fact that it was used “in the heat of the moment” did not provide a defence to section 10. In this respect, the definition of what is a “weapon of offence” differs from that used in the PCA. Under the PCA an item which is not “per se” offensive does not become offensive simply because it is used offensively if the intention to use it that way was not formed until immediately before the use. Prosecutors who are considering a charge of aggravated burglary should be aware of the wider definition given to “weapon of offence” in Kelly.

‘At the time’

The relevant time at which the defendant must have the weapon with them in order to be guilty of the section 10 offence is:

In R v O’Leary (1986) 82 Cr App R 341 D armed himself with a knife from within the house before attacking the occupants. He was convicted of aggravated burglary and appealed. The wording of the indictment (“entered as a trespasser….and stole therein…”) made it clear that the burglary limb relied on was 9(1)(b). The Court of Appeal dismissed the appeal, finding that the relevant time was the commission of the act which completed the offence (in this case the theft.) Had D been charged with burglary based on 9(1)(a) then that offence would have been complete once he had entered and so subsequently arming himself with a knife would not in that case have made him guilty of aggravated burglary.

See also Kelly, above.

Taking without consent

Elements

Section 12(1) of the 1968 Act defines the offence as taking any conveyance (apart from a pedal cycle) to use it without having the consent of the owner or other lawful authority (“TWOC”). For the offence of driving or allowing to be carried in a conveyance knowing it to have been taken without consent see below.

There is a specific offence under section 12(5) covering the taking of pedal cycles.

‘Taking’

The taking must be intentional (Blayney v Knight (1974) 60 Cr App R 269 – there was no taking where D’s foot accidentally touched the accelerator.);

The conveyance must be moved in some way, however small the distance. (R v Bogacki (1973) 57 Cr App R 593.) But it is not necessary that the defendant should actually drive or sit in or on the conveyance or use it as a conveyance in the act of taking it: R v Pearce [1973] Crim LR 321. D was guilty of TWOC when he took a rubber dinghy which he loaded onto a trailer and towed away.

‘Conveyance’

This is defined at section 12(7):

“any conveyance constructed or adapted for the carriage of a person or persons whether by land, water or air, except that it does not include a conveyance constructed or adapted for use only under the control of a person not carried in or on it, and “drive” shall be construed accordingly.”

Neal v Gribble (1979) 68 Cr App R 9 A horse is not a “conveyance” nor is it adapted so as to become one when a halter is put on it. The emphasis of section 12(5) was on artefacts rather than animals.

‘For their own or another’s use’

In the taking of the conveyance it is not necessary that the defendant (or anyone else) be conveyed in it. See Pearce above. However, the purpose of taking it must be to use it as a conveyance so if it is not used as a conveyance during the taking then it must be established that the purpose of taking it was to use later as a conveyance (as in the case of the dinghy taken in Pearce.)

‘Without the consent of the owner or other lawful authority’

Where there is apparent consent to the taking which was obtained by fraud, the position in law is that this will not necessarily constitute TWOC as there is no rule that fraud vitiates consent (Whittaker v Campbell (1983) Cr App R 267.)

Where an owner is persuaded by some sort of fraud to agree to somebody taking their vehicle prosecutors should charge one of the offences under the Fraud Act 2006.

Where permission has been given by the owner for some limited purpose, keeping the car after completing that purpose and continuing to drive it will be an offence of TWOC if there is no belief that the owner would consent to the continued use (see R v Phipps (1970) 54 Cr App R 300, a case decided under the previous legislation.) This will also apply to a hired vehicle which is not returned at the end of the hire period and which is still being driven.

Summary

Case law has established that for a section 12(1) TWOC offence to occur there must be

Driving or allowing to be carried in a conveyance taken without consent

Section 12(1) also provides that anyone who knowingly drives or allows themselves to be carried in a conveyance taken without consent is guilty of an offence.

The elements required for the offence of “taking” must be proved.

A person will only have “allowed themselves to be carried” where there is some movement of the vehicle (R v Diggin (1981) 72 Cr App R 204.) Simply sitting in the passenger seat of a vehicle knowing it to have been taken without consent, even with the intention of being carried, will not constitute the offence until the vehicle moves off.

Mens Rea and Statutory Defence

The defendant must know that the conveyance has been taken without the consent of the owner. Belief falling short of knowledge will not be sufficient.

However, even where a defendant does know that the conveyance has been taken without consent, section 12(6) provides a specific statutory defence for all offences under section 12 (including taking a pedal cycle):

"A person does not commit an offence under this section by anything done in the belief that he has lawful authority to do it or that he would have the owner’s consent if the owner knew of his doing it and the circumstances of it.”

Once this is raised as an issue by the defence, the burden is on the prosecution to disprove it.

The offence requires that moving the vehicle is done deliberately (see above.)

Charging Decisions

Offences under section 12 are summary only and cannot be charged as an attempt. Where an attempt is made to take a motor vehicle or trailer, the appropriate offence would normally be vehicle interference.

Allocation and Penalty

Offences under section 12(1) are now summary only. The maximum penalty is six months imprisonment or an unlimited fine or both. Offences under section 12(5) (pedal cycles) have always been summary only and are non-imprisonable (carrying a maximum of a level 3 fine.)

The offence is endorsable when committed in respect of a motor vehicle and carries a discretionary disqualification.

In a Crown Court trial for theft a jury may return a verdict of guilty to TWOC if they are not satisfied that the theft is proved (section 12(4).)

Section 12(4A) allows for proceedings for TWOC to be commenced outside the six month summary time limit imposed by section 127 of the Magistrates’ Courts Act 1980. Proceedings for TWOC may be commenced

The “relevant day” is defined by section 12(4B) and for most purposes will mean the day on which sufficient evidence to prosecute came to the knowledge of the prosecutor. Section 12(4A) specifies that this does not affect the right of a jury to convict of TWOC as an alternative verdict to theft under section 12(4).

Where a defendant is sent for trial on indictable offences, any linked case of taking without consent may be added to the indictment under section 40 of the Criminal Justice Act 1988. The count can be added whether the defendant was charged with the offence and sent for trial on it as a linked offence or not. However, if the defendant was not previously charged with the offence then adding it to the indictment under section 40 would qualify as “commencing” the proceedings and so it would need to be within the limits specified under section 12(4A).

  • In the case of a burglary where the basic offence is by entering with intent to steal, inflict GBH or commit criminal damage (9(1)(a)) the time of entry.
  • In the case of a burglary where the basic offence is by having entered then stealing or inflicting GBH (9(1)(b)) the time of the theft or infliction of GBH.
    1. A taking (some movement)
    2. For the purpose of using as a conveyance (either immediately or later)
    3. Of a conveyance (other than a pedal cycle)
    4. Without the owner’s consent or other lawful authority
    • Within six months of the “relevant day” provided that
    • It is not more than three years from the date of offence.

Aggravated TWOC

Elements

The offence of TWOC is “aggravated” if it is committed in respect of

  • a mechanically propelled vehicle and
  • at least one of the following circumstances occurred after the vehicle was taken and before it was recovered:
    • it was driven dangerously on a road or public place; or
    • it caused an accident in which somebody was injured; or
    • it caused damage to property; or
    • the vehicle itself was damaged.

The defendant will be guilty of this offence even if they were not driving at the time of the aggravating circumstance. The prosecution need not even prove that the defendant was anywhere near the vehicle at the time of the aggravating circumstance. It is open to the defendant to raise a defence under section 12(3) that

  • either the circumstances (a) – (d) occurred before they committed the TWOC
  • or they were not in, on nor in the immediate vicinity of the vehicle at the time the circumstances (a) – (d) occurred.

However, the burden of proving this is on the defendant (on the balance of probabilities.)

A defendant charged with the aggravated offence may be convicted of the basic offence of TWOC as an alternative either in the Magistrates’ Court or the Crown Court (section 12(5).)

Mechanically propelled vehicle

This is not defined in the 1968 Act. Some assistance may be found from section 185 of the Road Traffic Act 1988 in which various types of vehicle are described as “mechanically propelled” but ultimately it will be a question of fact.

In R v Taylor [2016] 1 WLR 2461 the Supreme Court considered the question of whether it was necessary to establish some element of fault in the circumstances of (b) to (d) above. Where the dangerous driving element is the aggravation relied upon ((a) above) then fault is an explicit element of the offence. The remaining circumstances ((b) to (d)) do not include any reference to the defendant’s behaviour being at fault but the Supreme Court ruled that the offence was not one of strict liability even in these cases. In the case of (b) and (c) there had to be something which was wrong with the driving and which was linked to the cause of the accident.

In the case of damage to the vehicle itself (see (d) above) there is no need for it to have been caused by driving and it may be that the courts will interpret liability more strictly in those cases.

In Dawes v DPP [1995] 1 Cr App R 65 the Divisional Court were asked to find that D was not guilty of aggravated TWOC because (it was argued) he had been unlawfully locked inside the car so was entitled to cause damage to the extent that it was necessary to enable him to escape. The Court found that the locking in was not unlawful and so upheld the conviction on that basis but indicated that it was “at least arguable” (had they needed to decide the issue) that an unlawful detention inside the car would not have afforded D a defence to aggravated TWOC in respect of damage caused whilst trying to escape.

Allocation and Penalty

Aggravated TWOC is an either way offence, carrying a maximum penalty in the Crown Court of two years imprisonment and/or an unlimited fine, with the caveat that where the aggravating circumstance relied on the by the prosecution is (b) above (an accident causing injury to another) then if the injury was fatal, the maximum penalty is increased to 14 years. The maximum penalty in the magistrates’ court is six months imprisonment and/or an unlimited fine.

Following the principle in R v Courtie [1984] AC 463 aggravated TWOC resulting in death should be considered a separate offence and the death should be pleaded on the face of the indictment or charge. However, where there is evidence of dangerous driving and that the defendant was the driver, prosecutors should charge an offence of causing death by dangerous driving contrary to section 1 of the Road Traffic Act 1988.

Where the aggravating circumstances relate to damage (under (c) or (d) above) then the offence will be treated as a summary only offence for the purposes of allocation proceedings if the value of the damage is less than the relevant sum (see section 22 and Schedule 2 of the Magistrates’ Courts Act 1980.) Although this makes a low value aggravated TWOC triable summarily, the summary time limit under section 127 of the Magistrates’ Courts Act 1980 will not apply as the offence remains either-way for all purposes other than allocation and so proceedings can still be brought at any time. If the defendant is sent to the Crown Court then any linked charge of TWOC aggravated by low-value damage can still be included on the indictment under section 40(3) (d) of the Criminal Justice Act 1988.

Offences under section 12A where the conveyance involved was a motor vehicle are endorsable with 3 – 11 points and carry an obligatory period of disqualification for a minimum of 12 months under Schedule 2 of the Road Traffic Offenders Act 1988. The court may, at its discretion, also impose a period of further disqualification until the defendant has passed an extended driving test. Where the defendant can be proved to be the driver and there is evidence of dangerous driving it may be more appropriate to proceed on a specific charge under section 2 of the Road Traffic Act 1988, because disqualification until the extended test is passed is mandatory for that offence (section 36(1) of the Road Traffic Offenders Act 1988.)

Abstracting Electricity

Elements

Section 13 of the 1968 Act creates the offence of dishonestly using electricity without authority or dishonestly causing electricity to be wasted or diverted.

‘Dishonesty'

The test to be applied now must be that adopted by the Supreme Court in Ivey v Genting Casinos. See “Dishonestly” above under Theft in this chapter. The case of Boggeln v Williams (1978) 67 Cr App R 50 (in which it was said that “dishonesty” must be decided on the basis of the defendant’s own beliefs about whether they were being dishonest or not) can no longer be regarded as good law.

It is not necessary that the defendant should have tampered with the meter. Provided that they have in fact used the electricity, that they were not authorised to do so and that in doing so they were being dishonest by the standards of ordinary people, the offence will be made out: R v McCreadie (1993) 96 Cr App R 143.

Allocation and Penalty

The offence is triable either-way. The maximum penalty at the Crown Court is five years and/or an unlimited fine. In the magistrates’ court the maximum penalty is six months imprisonment and/or an unlimited fine.

Blackmail

Elements

The offence of blackmail is committed when a person with a view to gain for themselves or another or intending to cause loss to another makes an unwarranted demand with menaces. (Section 21 of the 1968 Act) Dishonesty is not an element of the offence.

View to gain/intending to cause loss'

"Gain" and "loss" are defined at section 34(2) of the 1968 Act and are limited to gain or loss of money or other property. The gain or loss may be temporary and include gain by keeping what one already has and loss by not getting what one might otherwise get.

'Unwarranted'

A demand will be unwarranted unless the person making it believes both that they have reasonable grounds for making it and that the menaces used are a proper means of reinforcing it. See R v Lawrence (1973) Cr App R 64

It is for the defence to raise this as an issue but once raised, the onus is on the prosecution to disprove it. The test is subjective: what the defendant in fact believed, reasonably or not.

A demand may be unwarranted notwithstanding the fact that the person making it has a legal right to whatever it is that they are demanding, as even where the demand is thought to be reasonable the reinforcement must also be believed to be proper. Therefore, a charge of blackmail might succeed when a charge of robbery would fail because the defendant had (or believed they had) a claim of right to whatever they demanded and so was not acting dishonestly.

The fact that the action threatened may be legal or even morally desirable does not prevent it from being unwarranted. For instance, a demand for money accompanied by a threat to reveal to the victim's employer that they have been stealing from the company will almost certainly be blackmail, although most would consider that telling the employer is the right thing to do. It is the use of the threat to gain money which will usually lead to it being considered unwarranted.

However, if what is threatened is itself illegal it will almost inevitably follow that the threat cannot be a "proper" way of reinforcing the demand because it will not normally be believable that anyone could honestly have thought that doing an illegal act would be a proper way of reinforcing their demand.

'Demand'

This is not defined in the 1968 Act but it is a word in ordinary use and should be left to the jury. It can be phrased as a request or even as an offer (such as an offer of "protection" to a business.) It may be simply the defendant's demeanour. If the effect is to subject the victim to menacing pressure then that element of the offence will be made out. (R v Collister (1955) 39 Cr App R 100 followed in R v Lambert [2009] EWCA Crim 2860.) 

A demand need not be actually communicated to the victim in order to be "made" for the purposes of section 21. The demand is made when it is addressed to the victim (whether in writing or spoken words) whether the victim receives it or not.

Where a demand is made in England or Wales then the courts will always have jurisdiction since the offence will have been made within the jurisdiction, irrespective of where the demand was sent. If the demand is made by a defendant outside England and Wales to somebody inside the jurisdiction, the Court of Appeal held in R v Pogmore [2017] EWCA Crim 925 that the offence is justiciable pursuant to the Criminal Justice Act 1993 (see above). They concluded, on a purposive interpretation of the statute, that parliament had intended to confer jurisdiction in these circumstances.

'Menaces'

This is not defined by the 1968 Act but it is an ordinary English word which the jury can generally decide on as a question of fact. Exceptionally the jury may need some guidance where:

In both cases the jury should be directed that such threats are capable of amounting to menaces for the purposes of section 21.

Allocation and Penalty

Blackmail is triable only on indictment and carries a maximum penalty of 14 years imprisonment.

Handling Stolen Goods

Elements

The offence is created by section 22 of the 1968 act. It can be committed in various ways:

  • Receiving stolen goods; or
  • Undertaking in their retention, removal or realisation by another person or for the benefit of another person; or
  • arranging to do so.

In all cases, the handling must be done otherwise than in the course of theft (or all thieves would also be handlers.)

The goods must be proved to be stolen and the defendant must be proved to have known or believed the goods were stolen at the time they committed the actus reus.

Handling is a single offence which can be committed in a number of different ways as set out above. This was confirmed as part of the ratio decidendi in Griffiths v Freeman [1970] 1 W.L.R. 659. This should be followed in preference to the obiter dictum of Lord Bridge of Harwich taking the contrary view in R v Bloxham [1983] 1 AC 109. However, as a matter of good practice the particulars of the charge or indictment should specify which of the various forms the handling took.

'Dishonestly'

This must be interpreted in accordance with Ivey v Genting Casinos. See Dishonestly" above in this chapter, under "Theft."

'Stolen goods'

The scope of what is included in "stolen goods" is set out in sections 24 and 24A(8) of the 1968 Act . Goods stolen outside the jurisdiction are included in some circumstances (usually where the stealing was an offence in the jurisdiction where it took place.)

The proceeds of stolen goods which have been realised by the thief or handler are themselves stolen goods but only to the extent that they have been in the hands of the thief or handler. The effect of this is that whilst a thief or handler cannot wash away the "taint" of goods being stolen by simply selling on the goods, because proceeds they raise from the sale will still be "stolen", the "taint" will not transfer any proceeds obtained by the innocent purchaser if they sell the goods. So, where, for example, a mobile phone is stolen and disposed of to a handler, the money received by the thief will be stolen goods. The phone itself will remain stolen goods and if the handler then sells it to an innocent purchaser, the money obtained by the handler will also be stolen goods. But if the innocent purchaser sells the phone on, the money received by them will not be stolen goods because it has never represented the proceeds of stolen goods in the hands of either the thief or the handler.

Goods obtained through blackmail or fraud are also considered stolen goods for the purposes of the offence of handling as is cash dishonestly withdrawn from an account which has received a wrongful credit.

The goods in question must be proved to have been in fact stolen at the time of the handling. In the absence of direct evidence on the point an inference can be drawn based on the circumstances: R v Fuschillo (1940) 27 Cr App R 193.

Goods cease to be stolen when they are restored to the owner or otherwise taken into lawful possession (section 24(3).) If there is any doubt about whether the goods have ceased to be stolen before they are received but there is evidence that the receiver intended to handle stolen goods then it will usually be possible to prove either arranging to receive stolen goods, contrary to section 22 of the 1968 Act or attempting to handle stolen goods, contrary to section 1 of the Criminal Attempts Act 1981.

Otherwise than in the course of stealing

The stealing referred to is the original theft at which point the property acquires the characteristic of being “stolen goods.” Subsequently, handling of those goods will usually amount to a further appropriation and so could be charged as theft. Where it is unclear whether the defendant was the original thief or a subsequent handler the courts have said that the problem of which offence to charge could be resolved by a widely-drafted charge of theft intended to cover either the original appropriation or the subsequent appropriation by assuming the rights of the owner (in handling the goods): see “Charging decisions” below in this chapter and Stapylton v O’Callaghan [1973] 2 All ER 782.

Knowing or believing

The defendant must either have known or had a (correct) belief that the goods were stolen at the time of handling them. If the handling is by receiving then a defendant who realises that goods are stolen only after they have taken possession of them will not be guilty of handling them. However, if the defendant decides to retain the goods after finding out that they are stolen, they may be guilty of theft or an offence under section 329 of POCA 2002.

The defendant must either know (for instance because they have been told by the thief or someone else with first-hand knowledge) or actually believe that the goods were stolen. Suspicion, even when the defendant deliberately shuts their eyes to the circumstances, is not enough. R v Moys (1984) 79 Cr App R 72.

Section 27(3) of the 1968 Act provides that for the purposes of proving that a defendant knew or believed goods were stolen, evidence may be admitted that:

  1. they have had in their possession any goods stolen in a theft committed not more than 12 months before the date of the alleged handling or have undertaken or assisted in the retention, removal, disposal or realisation of such goods; or
  2. they have been convicted of theft or handling within five years from the date of the alleged handling – but evidence of the conviction will only be admitted under this section if seven days’ notice has been given of the intention to adduce it.

The reasoning behind allowing this evidence into the trial is that a person who has previously had dealings with stolen goods (even if innocently, as in (a) above) will normally have a greater awareness of what to look out for in order to avoid them. The fact that in spite of having come into contact with them previously the defendant claims to have failed to recognise what they were on coming into contact with them again can be used in weighing up the credibility of that claim.

The evidence under section 27(3) is solely for the purposes of proving the defendant's state of mind. It cannot be used to prove that the goods are actually stolen and the prosecution must first adduce evidence of that fact before they can call any evidence under (a) and (b) above.

The provision under (b) for adducing evidence of a previous conviction may be used as well as or instead of making an application under the bad character provisions under section 101 of the Criminal Justice Act 2003. Although it requires written notice to the defendant it does not require an application to the court.

'Receiving or arranging to receive'

"Receiving" is not defined in the 1968 Act but is understood to refer to any taking possession or control of property. It is not necessary for the defendant to have physical possession (especially as "property" includes intangible property such as a credit in a bank account.)

Arranging to receive is a substantive offence and might be charged where the arrangements concerned are no more than merely preparatory and so not an attempt. However, any arrangements must be in respect of goods which are in fact stolen. If the goods have yet to be stolen then another inchoate offence may be made out (such as conspiracy to handle stolen goods) depending on the circumstances.

Undertaking/assisting in the retention, removal, disposal or realisation of stolen goods or arranging to do so

There are two ways in which handling can occur under the second limb of section 22 both of which must involve another person:

  1. The defendant personally undertakes or arranges the retention, removal, disposal or realisation of stolen goods for the benefit of another person; or
  2. The defendant assists in or arranges the retention, removal, disposal or realisation of stolen goods by another person.

The purchaser of stolen goods is not "another person" within this limb of section 22 as the retention, removal, disposal or realisation of the goods is neither carried out for the purchaser’s benefit (A above) nor is it something done by them (B above). The sale is by and for the benefit of the seller, not the purchaser. (R v Bloxham (1982) 74 Cr App R 279.)

Charging decisions

Where the evidence is capable of supporting either handling or theft then the prosecution may charge both in the alternative. The court cannot convict unless it is satisfied beyond reasonable doubt that one offence rather than the other has been proved and can then convict only of that offence. This can raise difficulties when the evidence proves that the defendant must either be the thief or the handler but it is not clear which. In Stapylton v O’Callaghan [1973] 2 All ER 782 the Divisional Court said that the correct approach in such cases, if the defendant had received the goods, was to convict of theft, since the receiver of stolen goods commits a further appropriation of them at the point of receipt and so will be guilty of theft. Although under section 22 the original thief cannot be a handler, every handler who receives stolen goods will commit a further appropriation of the goods and so may be guilty of a subsequent theft. See above for further commentary on this.

Alternatively one of the money laundering offences under part 7 of the Proceeds of Crime Act 2002 may be made out. These offences are usually easier to prove than handling (as dishonesty is not an element of the offence and mere suspicion may be enough to prove mens rea.) However, they should not be used simply as a way of allowing the prosecution to avoid its burden where the conduct involved is sufficiently covered by the handling provisions (see R v GH [2015] 1 WLR 2126 at paragraph 49.)

Allocation and Penalty

Handling is triable either-way and punishable in the Crown Court with 14 years' imprisonment and/or an unlimited fine and in the magistrates' court with six months'imprisonment and/or an unlimited fine.

Retention Of A Wrongful Credit

Elements

This offence is created by section 24A of the 1968 Act and consists in dishonestly failing to take reasonable steps to cancel a credit of money to any account the defendant keeps or has any control over when they know or (correctly) believe that the credit made is wrongful.

Wrongful

A credit is wrongful if it derives from theft, blackmail, fraud or stolen goods.

'Dishonesty'

This must be interpreted in accordance with Ivey v Genting Casinos – see “Dishonestly” under “Theft” above in this chapter.

Charging decisions

A possible alternative would be a charge under section 327 of the Proceeds of Crime Act 2002 but there are judicial comments disapproving of use of POCA where a charge of handling would have covered the conduct the prosecution alleged. The same will apply to use of section 327 simply to avoid having to prove the more stringent requirements of section 24A. See R v GH at paragraph 49, supra.

Allocation and Penalty

Retention of a wrongful credit is triable either-way and punishable in the Crown Court with 10 years’ imprisonment and/or an unlimited fine and in the magistrates’ court with six months’ imprisonment and/or an unlimited fine.

Going Equipped

Elements

The offence is defined in section 25 of the 1968 Act:

A person shall be guilty of an offence if, when not at his place of abode, he has with him any article for use in the course of or in connection with any burglary or theft.

'Place of abode'

This is not defined in the Act but in R v Bundy (1977) 65 Cr App R 239 the Court of Appeal held that the defendant who lived in his car was not at his "place of abode" while the car was in transit. In order to be "an abode" the car would have to be at a particular site where the defendant intended to abide.

'Has with him'

Cases which have interpreted this phrase in relation to weapons or firearms have decided that it is a wider concept than "carrying" the item and that relevant considerations include how immediately accessible the item is, how close it is, the context of any proposed criminal enterprise and the purpose of the legislation creating the offence. (R v Henderson [2017] 1 Cr App R 4.)

'Use in the course of or in connection with'

The articles must be more than merely remotely connected with the proposed offence. Where D had with him a driving licence which did not belong to him for use in a job application, intending to steal from the company if they employed him, that was not an offence under section 25. (R v Mansfield [1975] Crim LR 101.)

The defendant must still have the intention to use the articles at the time of the possession to which the charge relates.

If a defendant is found with articles which have in fact been used in a theft or burglary but by the time they are found the defendant no longer intends to use them for future thefts or burglaries, then any charge would need to be worded so that it clearly refers to the place and/or time the defendant had them with the intention of using them in the future. Where there is sufficient evidence to prove either the theft or burglary itself, then it will not usually be in the public interest to prosecute for the earlier possession of the articles.

Section 25(3) provides that if the article is made or adapted for use in committing burglary or theft then that is evidence that the defendant had it for that purpose.

Burglary or theft

Burglary includes where a defendant intends to commit criminal damage or grievous bodily harm.

Section 25(5) specifies that “theft” includes taking a conveyance without consent contrary to section 12(1) of the 1968 Act. (But it will not extend to taking a pedal cycle contrary to section 12(5).)

Allocation and Penalty

The offence is triable either-way, punishable in the Crown Court with a maximum of three years imprisonment and/or an unlimited fine and in the magistrates' court with six months' imprisonment and/or an unlimited fine.

Making Off Without Payment

Elements

Under section 3 of the 1978 Act this offence (“MOWP”) is committed where a person, knowing that payment on the spot is required for goods or services supplied, dishonestly makes off without paying and intending to avoid the payment due. See above under “Appropriates”

'Payment on the spot required or expected'

Payment on the spot does not become due until the goods or services have been provided. The Court of Appeal considered this question in relation to an appeal against a conviction for false imprisonment by a taxi driver who had refused to let a passenger out of his cab and had driven her back to where he had first picked her up, rather than her destination. Considering whether D had a defence of reasonable force to prevent the commission of an offence of MOWP, the Court ruled he did not as he had not provided the service for which she had asked, which was to be taken to her home address. Until D had completed that service there was no obligation on his passenger to pay and so by locking her in his cab he had not been preventing her from committing any offence. (R. v Wilkinson [2018] EWCA Crim 2154.)

Where a defendant persuades the person to whom the payment is due to wait for it, then by agreeing to wait the creditor is accepting that payment on the spot is no longer required. This means that even if the defendant has used a trick to persuade the creditor to wait (such as leaving a false name and address at a petrol station) they will not be guilty of MOWP, although they might be guilty of another offence such as fraud. (R v Vincent [2001] Cr App R 10.)

'Dishonestly'

The test to be applied must now be that set out in Ivey v Genting Casinos [2018] AC 391E, see “Dishonestly” above in this chapter under “Theft”.

Intent to avoid payment’

This must be to make permanent default. If the defendant’s intent was simply to defer payment then the offence of MOWP will not have been committed (R v Allen (1984) 79 Cr App R 265.)

Allocation and Penalty

The offence is triable either-way and punishable in the Crown Court with a maximum of two years’ imprisonment and/or an unlimited fine and in the magistrates’ court with up to six months’ imprisonment and/or an unlimited fine.

Annex A

Three Strikes Rule

Three Strikes Rule (PDF document, approx 70kb)

Further reading