criminal law Acts

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Theft Act 1968

The Theft Act 1968 is arguably one of the most effective pieces of legal drafting in the post war era. It is now nearly 50 years since the Act was passed and yet it remains very much intact[1]. It greatly simplified many of the definitions of offences and brought together a wide range of different statutes and offences. All of this will be explored in detail below.

The Act, which became law during the period of the Labour Government of Howard Wilson, was very closely based on a draft bill which had been published by the Criminal Law Revision Committee in 1966[2], following a seven year research programme[3]. It replaced the Larceny Act 1916, which was the last of a series of Larceny Acts which had tried to provide a modern law of theft[4].

Section 1 of the Theft Act introduces the offence of theft[5]. This included a completely new definition of the offence which identified five elements to the offence, all of which need to be present for the offence to be made out. These five elements are; dishonesty, an appropriation (i.e. taking), there must be property, it must belong to another person and there must be an intention to permanently deprive the owner of it[6]. The next five sections of the Act expanded each of these concepts. However, they were not necessarily the final word on each of them. For instance, section two[7] gives examples of what would not be considered dishonest, but did not attempt to define what would be. This was done in the case of Ghosh[8] which introduced a two-stage test, part of objective and part subjective. It is then a matter for the jury or the magistrates to determine whether the prosecution have satisfied them that both stages have been fulfilled[9]. The definition of theft applies to all types of theft, which are all covered by the offence. By contrast the Larceny Act contained a large number of different ways of committing larceny[10].

Section 8 of the Act defines the offence of robbery. This can perhaps best be described as theft with violence. An offence of robbery requires the use or threat of immediate violence to carry out a theft. It is an indictable only offence, meaning that it can only be tried at the Crown Court, and is therefore viewed as being one of the more serious offences in criminal law. By way of a comparison the maximum sentence for theft is seven years imprisonment[11], whilst for robbery it is life imprisonment[12]. The section requires that the threat is to subject the person to whom it is made to immediate violence, i.e. that it will take place then and there rather than at any point in the future.

Section 9 of the Act covers the offence of burglary[13]. There are two ways of committing the offence and the common element between them is that the offender must be a trespasser. A burglary is committed either if a person enters a property as a trespasser and then steals[14], but is also committed if a person enters a property as a trespasser intending to steal, even if they do not go on to do so[15]. A burglary can also be committed if the offender causes criminal damage or grievous bodily harm[16]. As originally drafted a burglary could be committed where the offender entered as a trespasser intending to rape, or actually carried out a rape, but that was removed by the Sexual Offences Act 2003[17] which consolidated all the sexual offences in the one place. A more serious form of burglary is found in Section 10[18], where the offence of aggravated burglary is created for where a burglary is committed and the offender has with them a firearm or other weapon. This carries a maximum sentence of life imprisonment[19].

Section 12 of the Act deals with the offence of taking without consent (“TWOC”). This makes it an offence to take any mechanically propelled vehicle[20] (not necessarily a car) without the consent of the owner[21]. The difference between this and theft is that TWOC does not require an intention to permanently deprive. It is also an offence under this section to drive a vehicle which has been taken without consent or to be carried in it (providing that the offender knew that the vehicle had been taken in that way)[22]. There is an aggravated form of the Act under Section 12A which deals with situations where damage or injury is caused or where the vehicle is driven dangerously[23].

Sections 15 and 16 of the Act dealt with various fraud offences. Here the Act was less successful than otherwise and various attempts were made to reform it[24]. Eventually these sections were repealed and a new Fraud Act[25] was introduced on the recommendation of the Law Commission[26]. The only fraud offences which now survive under the Act are false accounting[27], some company offences[28] and blackmail[29].

The final major offence within the Act is handling stolen goods[30]. This can be committed by someone receiving stolen goods or by them assisting someone else to dispose of stolen goods[31]. The theory is that there would be less thieves if there were no handlers and so the maximum penalty for this offence is 14 years imprisonment, double the maximum sentence for theft[32]. The Act also provides that, irrespective of the bad character rules which apply normally to criminal trials[33], the court may be told about any convictions that the defendant has for theft or handling stolen goods within the past five years[34].

As well as these offences there are a number of other offences found within the Act which can be described as lesser offences. Abstracting electricity[35], dishonestly retaining wrongful credit[36] and going equipped to steal are all types of behaviour which are criminalised under the act, as is advertising for the return of stolen property “no questions asked.” [37]

Although the Act has stood the test of time, it has not been without its critics. Whilst the criticisms of former Law Commissioner Martin Allen within his book may be regarded as excessive[38] the authors of Smith and Hogan have also raised concerns about aspects of the Act[39]. Most notably the Court of Appeal have called for urgent reform of the Act[40], although their criticism seemed levelled more at the way that it has been interpreted by the courts as to any inherent shortcomings in its drafting. Despite these criticisms the Act has had a long and successful history and may be around for a long time yet to come.

Bibliography

Statutes

Larceny Act 1916

Theft Act 1968 c60

Theft Act 1978

Aggravated Vehicle Taking Act 1992

Theft (Amendment) Act 1996

Criminal Justice Act 2003

Sexual Offences Act 2003

Fraud Act 2006

Cases

R v Ghosh [1982] EWCA Crim 2, [1982] QB 1053 (House of Lords)

Hallam and Blackburn [1995] Crim LR 323 (Court of Appeal)

Publications

Allen M, Textbook on Criminal Law (13th edn, Oxford University Press 2015)

Criminal Law Revision Committee, Eighth Report: Theft and Related Offences (Cmnd 2977) (1966)

Law Commission, Fraud LC 276 (2002)

Ormerod D and Laird K, Smith and Hogan's Criminal Law (14th edn, Oxford University Press 2015)


[1] The Theft Acts 1978, the Theft (Amendment Act) 1996 and the Fraud Act 2006 have modified the fraud sections of the act but otherwise the act is still very much as it was when it was passed in 1968.

[2] Criminal Law Revision Committee, Eighth Report: Theft and Related Offences (Cmnd 2977) (1966)

[3] Martin Allen, Textbook on Criminal Law (13th edn, Oxford University Press 2015) p484

[4] The introductory text to the Larceny Act 1916 described it as “an Act to consolidate and simplify the Law relating to Larceny triable on Indictment and Kindred Offences.”

[5] Theft Act 1968 s1

[6] Theft Act 1968 c60 s1

[7] Theft Act 1968 s2

[8] R v Ghosh [1982] EWCA Crim 2, [1982] QB 1053 (House of Lords)

[9] Allen p508

[10] There are 14 different types of Larceny set out in the Larceny Act 1916 together with a large number of other offences.

[11] Theft Act 1968 s7

[12] Theft Act 1968 s8

[13] Theft Act 1968 s9

[14] Theft Act 1968 s9(1)(b)

[15] Theft Act 1968 s9(1)(a)

[16] Theft Act 1968 s9(2)

[17] Sexual Offences Act 2003 schedule 6

[18] Theft Act 1968 s10(1)

[19] Theft Act 1968 s10(2)

[20] Theft Act 1968 s12(5) but note that there is a separate offence under this section relating to pedal cycles which are excluded from the section otherwise.

[21] Theft Act 1968 s12(1)

[22] Theft Act 1968 s12(6)

[23] Theft Act 1968 s12A, which was added by the Aggravated Vehicle Taking Act 1992

[24] The Theft Act 1978 and the Theft (Amendment) Act 1996

[25] Fraud Act 2006

[26] Law Commission, Fraud LC 276 (2002)

[27] Theft Act 1968 s17

[28] Theft Act 1968 s18-20

[29] Theft Act 1968 s21

[30] Theft Act 1968 s22

[31] Theft Act 1968 s22(1)

[32] Theft Act 1968 s22(2)

[33] Criminal Justice Act 2003 s98 onwards

[34] Theft Act 1968 s27(3)

[35] Theft Act 1968 s13

[36] Theft Act 1968 s24A which was added by the Theft (Amendment) Act 1996

[37] Theft Act 1968 s23

[38] Allen p484 onwards

[39] David Ormerod and Karl Laird, Smith and Hogan's Criminal Law (14th edn, Oxford University Press 2015)

[40] Hallam and Blackburn [1995] Crim LR 323 (Court of Appeal)