R v Smith [2011] 1 Cr App R 30

Robbery of drug dealer constituted theft under the Theft Act 1968


Smith (S) and his two co-appellants (P and H) arranged to meet a drug dealer. Upon meeting the drug dealer, they violently attacked him and stole around £50 worth of heroin. The three were subsequently convicted of robbery.


S, P and H challenged their conviction on the basis that the alleged offence was not known to the law because the heroin in question was unlawfully in the possession of the victim. Accordingly, it did not constitute “property" in terms of section 4 of the Theft Act 1968 and, therefore, there could be no appropriation.


The Court of Appeal noted that, whilst s4 of the 1968 Act identified a number of items which could not be stolen, these exclusions did not extend to property which was unlawfully possessed. Nothing in the 1968 Act suggested that property which was possessed or controlled in an unlawful, illegal or prohibited manner lost the status of “property” in terms of the Act. Therefore, the appropriation of the prohibited drugs constituted theft and the circumstances in which the appropriation took place amounted to robbery. The convictions were therefore upheld. The court also noted that public policy considerations which might suggest that a wrongdoer (i.e. a drug dealer) should not be able to enforce a property right are not relevant to the application of the criminal law which is principally concerned with keeping the peace rather than the vindication of individual property rights.