A-G Ref (No 1 of 1983) [1985] QB 182

Theft of property which was received as a result of the mistake of another


The defendant was a policewoman who was mistakenly paid an extra £74 in her wages by direct debit into her bank account. The employer made no demand for repayment. The defendant initially didn’t know about the overpayment but there was some evidence that she later discovered the error and decided to say nothing about it. However, she didn’t remove the money from her bank account.


The defendant was tried on a count of stealing the £74 from her employer contrary to the Theft Act 1968. At the close of evidence for the prosecution, the trial judge stopped the case and directed the jury to acquit. A reference was made by the Attorney General for the Court’s opinion on a point of law. The key question was whether a conviction for theft was possible even where the money had not been withdrawn.


The Court held that the £74 in question amounted to a “thing in action” in terms of section 4(1) of the Theft Act 1968 and was therefore “property” which was capable of being stolen. Furthermore, section 5(4) of the 1968 Act applied because the money had been received as a result of the mistake of another and in accordance with that section there was an obligation to make restoration. In the circumstances, this obligation to restore became operative from the moment that the policewoman had become aware of the error. On the facts, it remained for the prosecution to prove that there was an appropriation and dishonest intent.