Chapter 5: Theft -Appropriation.

5.1 Definition of theft

5.2 'Appropriation'

as defined under s 1 of the Theft Act 1968: ' a person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.'

what has to be proved?


  • s 2 - Dishonesty (part of mens rea)
  • *s 3 - Appropriation (part of the actus reus)
  • s 4 - Property (part of the actus reus)
  • s 5 - belonging to another (part of the actus reus)
  • s 6 - intention to permanently deprive (part of the mens rea)

the actus reus of theft is: the appropriation of property belonging to another


the mens rea of theft is: dishonesty and intention to permanently deprive.

if any of these ingredients cannot be proven then a prosecution for theft will fail

s.3(1) Theft Act 1968- 'any assumption by a person of the rights of the owner amounts to appropriation'


this can be restated as 'treating the property as if it was your own. doing something only the own has the legal right to do.'

stealing is obviously an appropriation however doing almost anything with the property can be assuming the rights of the owner, e.g. eating, destroying, damaging, or giving away another's property.


it could also be releasing laboratory animals or assuming the right to sell another's property.

in Pitham and Hehl 1977 accused was said to have appropriated the owner's furniture by making arrangements to sell it

in Morris 1983 swapping two price labels on shop goods was assuming the rights of the owner and therefore appropriation

5.2.1 Consent to the appropriation

**can an accused be said to "appropriate" if the own consents to it? - yes


theft act does not state that appropriation has to be with or without the consent of the owner.

HoL first considered this matter in Lawrence v MPC 1972


  • an Italian student, who just arrived in England, offered £1 in payment for his taxi ride. driver said this wasn't enough (despite actual fare being 50p). student offered his wallet to driver so he could take the required fare. driver took another £6. defence argued that as the student offered up his wallet he had consented to the taking of the extra money & therefore there was no "appropriation" and no theft.

HoL disagreed and said that **an accused could said to appropriate even if he has the consent of the owner.


this orbiter was ignored in some later cases.

in Eddy v Niman 1981 accused & his friend put goods into a supermarket trolled intending to steal them (as he later admitted). however accused lost his nerved and ran out the shop and was arrested.


on appeal, his defence argued despite accused intending to steal he hadn't yet appropriated because had the implied consent of owner (as all shoppers do) to put the goods into the trolley, i.e, he had done nothing unauthorised.
the Divisional Court of the QBD agreed saying there could be no "appropriation" and therefore no theft until the accused id something without the consent of the owner (if the accused put goods in his pocket then this would be appropriation because the supermarket doesn't consent to that).

few years later, HoL contradicted the orbiter in Lawrence in Morris 1984 accused swapped price labels on goods & then paid lower price at the checkout where they were arrested.


swapping labels was said to be appropriation but more importantly, Lord Roskill said as orbit that there would be no "appropriation" without "adverse interference" with the rights if the owner
to appropriate the accused had to do something unauthorised without the consent of the owner

from 1984 we had 2 contradictory rulings from the HoL. in Lawrence it was said appropriation could occur with consent of owner, in Morris it was said that it couldn't. this lead to much uncertainty in the following years but in 1993 the HoL found in favour of the Lawrence ruling.


Gomez 1993 accused was a shop assistant who told his manager that he'd phoned the bank to confirm that a specific customer's cheque was authentic. this led manager to give him permission to sell goods to that customer. in reality Gomez was lying. he hadn't phoned the bank because he knew the cheques where stolen.
Convicted of theft (rather than deception) Gomez appealed on the grounds that as the manager had given his consent to handing the goods over - this was not "appropriation"


HoL rejected this view & dismissed the appeal.
Lord Keith said that Lawrence, not Morris, was the correct law. there was no need to show "adverse interference".
an accused could "appropriate"" even where he had the consent of the owner

5.2.2 Consent without deception

Gomez decision seemed to have settled the issued but two decisions in the CoA soon cast doubt on one aspect of this.


did the ruling in Gomez apply in cases where there was no deception?

in Gallasso 1993 (decided in the same day as Gomez) a nurse/carer who had the authority to deal with mentally handicapped patient's finances persuaded her to open up her new bank account and transfer her savings into it. Gallasso then tried to persuade her to pay money from the savings account into her own.

in Mazo 1996 an old & mentally weak lady was persuaded to transfer very large amounts from her own bank account to her maid's account.


in both cases, the CoA said as orbiter that is was only "appropriation" if the consent had been obtained by force or deception
i.e. if the owner freely consented - an there was no deception - then there was no "appropriation" and no theft.

the renewed uncertainty these two cases created was settled by the House of Lords in Hinks 2000


  • accused befriended someone of limited intelligence who was "naïve and trusting" & had just inherited lots of money. D persuaded V to transfer sums totalling £60,000 into her account. D was convicted but appealed on grounds that there was no appropriation because owner freely consented to transfers - they were gifts & V confirmed this.
    Lords rejected appeal. Lord Steyn said appropriation was 'a neutral word' covering any assumption of the rights of the owner - with/without consent. hence even a freely given gift could amount to appropriation

i.e. appropriation can occur even with consent of owner

Lord Steyn went on to say that the issue of whether or not V had been pressurised or deceived wasn't relevant to the issue of appropriation.


it was however relevant to the issue of whether or not the accused was dishonest.
hence dishonesty not appropriation is the main issue in theft cases

Summary/History


can the accused be said to appropriate if he has the consent of the owner?


  • 1972 Lawrence v MPC - HoL said yes


  • 1981 Eddy v Niman - Div. Court QBD said no


  • 1984 Morris - HoL said no (adverse interference was required)



  • 1993 Gomez - HoL said yes (no adverse interference required)



  • 1994 Gallasso - CoA said no (unless there was deception)
  • 1996 Mazo - CoA said no (unless there was deception)



  • 2000 Hinks - HoL said yes (regardless of whether or no there was deception)
    appropriation can occur even if the owner consented

Criticisms of current law on appropriation



  • we all appropriate now
    ~ if gomez is right then even an honest shopper could be said to appropriate just by simply putting something from the shelf into his basket. he has already committed the actus reus.

in practice this isn't worrying since appropriation on its own isn't enough to convict - evidence of dishonesty &7 intention to permanently deprive is also required. = difficult to establish if accused hasn't left the shop (unless he ofc confessed about his intention).
similarly, if Hinks is correct then even those accepting presents have the actus reus of theft - again, however prosecution will not follow if there is no evidence of dishonesty.

  • creates and overlap between theft and deception
    ~ before Gomez, theft & deception were very distinct. Theft = charge when the owner didn't consent & deception = charge when the owner did consent but deceived
    now that accused can appropriate even with consent, theft and deception charges can be bought against those who get consent by deception. this probably isn't what parliament intended when passing the act.
  • Contradicts the civil law on the passing of ownership
    ~ in civil law, once property has been freely handed over, the receiver automatically becomes the new owner. in Hinks, the ruling suggests that in criminal law the property can still belong to the person who handed it over. this contradiction was the main reason that Lord Hobhouse gave a dissenting judgement in Hinks.

Additional point
~ for theft, an appropriation occurs at the moment that the rights of the owner are assumed, i.e. at the time it is first held. it is not a continuing act.


~ Atakpu and Abrahams 1994 = accused hired some cars in Belgium using fake licenses & passports. when they arrived at Dover they were arrested for theft of the cars. was held they couldn't be convicted of theft in UK courts because the appropriation occurred outside of the country. Prosecution's argument that the accused could be said to be still appropriating when driving in UK was rejected.
Appropriation was a single act not a continuing one.
this decision seems to be too generous to the accused. it also contradicts the law on robbery where appropriation can be a continuing act (see Hale 1978 & Lockley 1953)