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Theft Act 1978

Why was it introduced (political/sociological context)?

The Criminal Law Revision Committee spent seven years considering criminal property offences which had previously been contained within the Larceny Act 1916. Following their report, Eighth Report: Theft and Related Offences (Cmnd 2977, 1966),the Theft Act 1968 was passed by Parliament. The 1968 Act created a new framework of property offences which were drafted in more straightforward language to circumvent the technicality and complexity of the Larceny Act 1916. The Theft Act 1978 supplemented the Theft Act 1968 by reforming aspects of the deception offences contained within ss16 and 17, replacing s16(2)(a) Theft Act 1968 which had proved unsatisfactory, and creating additional provisions to close some gaps which had been left by the 1968 Act.

What was the aim of the Act (legal context)?

Following the enactment of the Theft Act 1968, there were several situations where an individual could dishonestly obtain property or services, or avoid liability to pay for services which would not fall within the offences contained within the 1968 Act. The case of Edwards v Ddin (1976) 63 Cr App R 218 highlighted such an example when a defendant filled his car with petrol and then whilst washing his hands, formed the intention not to pay for the petrol and left the station without having paid. He could not be convicted of theft under s1(1) Theft Act 1968 because by the time he had formed the requisite mens rea for the commission of the offence, that is, dishonestly intending to permanently deny ownership of the petrol, the property in the petrol had already been transferred to him. Where a defendant failed to pay for his shoes having been mended or for a room in a hotel, or for a meal in a restaurant or for the use of a car park, he would not have been guilty of any offence under the Theft Act 1968, where the dishonest intention was formed after the service had been performed.

What main changes did it make to the law (key points)?

S1 Theft Act 1978 created the offence of obtaining services by deception. The actus reus for this offence is complete where there is a deception as to fact or law and services are provided on the understanding that they will be paid for, and the mens rea for the offence is that the defendant acted dishonestly. The offence was triable either way and a defendant convicted on indictment could be sentenced to up to five years’ imprisonment, and if convicted summarily up to six months’ imprisonment and/ or a fine. This offence has been repealed by the Fraud Act 2006.

S2 Theft Act 1978 introduced the offence of evading liability by deception. The actus reus for this offence was satisfied when the defendant created a deception as to fact or law to secure the remission of an existing liability to make a payment. The mens rea was that the defendant acted dishonestly. The offence was triable either way and a defendant convicted on indictment could be punished by up to five years’ imprisonment, and if convicted summarily by up to six months’ imprisonment and/ or a fine. This offence was repealed by the Fraud Act 2006.

The s3(1) Theft Act 1978 was enacted to cover a lacuna left by the 1968 Act, that is, to cover such examples where an accused leaves a hotel or restaurant without paying, drives away from a self-service petrol station without paying or fails to pay a taxi fare. The s3(1) offence of making off without payment covers cases where the debtor makes off from the place where he obtained the property, and where payment for the property was due and in seeking to avoid the debt, removes himself from the place where the liability to pay was incurred. S3 does not require the prosecution to prove the property involved actually belonged to another, or that any false representation was made.

The actus reus of the offence is complete where the defendant makes off from the spot where payment is required, for any goods or services which he has received. The requisite mens rea is that the defendant makes off dishonestly knowing that payment is required on the spot, intending to avoid payment for the goods and services received. A defendant would not have the necessary mens rea if he honestly believed the goods or services were provided on credit, and that he would be invoiced for them at a later point in time.

The offence is triable either way and punishable on indictment with up to two years’ imprisonment, and on summary conviction with up to six months’ imprisonment and/ or a fine not exceeding £2,000. The offence under s3 has not been repealed by the Fraud Act 2006 and remains in force.


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