Theft is taking and/or appropriating property belonging to another, without their consent, with the intention to deprive them of its use.

Actus reus

Theft involves the taking of property. Taking a person against their will would be considered as abduction.

“Property” is generally considered to be corporeal, moveable property. In most cases this is straightforward, because you’re talking about a “thing” that you can see and physically take possession of. It can include living things (one of my favourite charges that I have dealt with ended “…and did steal a quantity of pigeons”).

I am not aware of any cases that discuss the appropriation of incorporeal (e.g. digital) property in terms of “theft”. With the recent rise of unregulated cryptocurrencies (e.g. Bitcoin) there have been plenty of instances of people’s bizarro Libertarian money being “stolen” in one way or another. I suspect that most conceivable cases in this vein would be better prosecuted under the Computer Misuse Act 1990, or as fraud.

There is no “de minimis” (“of the minimum”) rule when it comes to theft. In other words, it doesn’t matter how valuable the property taken is. The thief’s gain isn’t important, compared to the fact that the owner has lost something. Value would generally only be a consideration when it comes to sentencing.

A quick note on value: obviously, money can be stolen. Theft of banknotes is described in terms of the notes’ monetary value (i.e. “you stole £100”), rather than in terms of the actual pieces of paper.

The property has to belong to someone else. If property is lost, that doesn’t mean that the owner has abandoned it. The intention to commit theft may be inferred from the accused’s actions upon finding it (e.g. making no efforts to trace the owner; not handing the property in to the police). This is known as theft by finding.

It might sound obvious but, you cannot steal your own property. I once represented a man accused of theft by housebreaking; the circumstances turned out to be that he had been locked out of the flat he jointly owned with his partner after an argument. He returned to the flat (while his partner was away), let himself in with his own key, and removed some jointly-owned property. Since he had ownership rights over the property in question, he could not be guilty of theft. The prosecution was eventually dropped.

The property does not have to be taken away to count as “appropriated” by the accused.

Black v Carmichael: (1992 SLT 897)

A private landowner had “clamped” a car parked there. Although the car had not been removed, the owner had been deprived of its use. It was held that the clamper’s actions constituted theft, and that a demand for payment to remove the clamp would be extortion.

It would not be theft, however, if a vehicle were effectively prevented from moving as an unavoidable consequence of the owner, say, closing and locking a gate for legitimate reasons (e.g. the security of his/her property).

It’s worth noting, on this point, that public authorities have a statutory power to “immobilise” vehicles for non-payment of tax & fines. Private landowners (like supermarkets and retail parks) nowadays have to resort to contract law (“parking charge notices” and the like) to prevent unwanted parking.

Similarly, in a case of theft by shoplifting, the Crown doesn’t need to prove that the accused actually left the shop with the items, provided they have evidence that the accused was in possession of the packs of meat (it’s always packs of meat – steaks that have been concealed down the front of one’s joggers tend to sell well on the black market, apparently) and had formed the intention to keep them without paying.

From the above example, you can hopefully see that the concept of consent depends on the facts and circumstances. Most of the time, it is straightforward common sense to assume that the owner of the property did not want his/her property to be appropriated by the accused (although the Crown would still need to prove this by leading evidence).

That said, you can easily imagine examples where it’s harder to draw the line re. consent for use. If you book yourself a hotel room, you presumably have implicitly been given consent to use the toiletries in the bathroom, so that wouldn’t be theft. On the other hand, you probably wouldn’t be entitled to grab handfuls of tiny soaps from the housekeeping cart if you encountered it in the corridor.

Mens Rea

You cannot commit theft by accident; it is a crime that requires intention.

Carrying something away by accident would not be theft. Think of this as the “self-scan checkout defence”. If you have paid for a couple of bagfuls of groceries, the fact that you have not paid for a banana, in the circumstances, is more indicative of an accident than someone with the required guilty mindset. Obviously, the larger/more expensive the item, the less likely that your mistake will be seen as reasonable. It depends on the particular facts and circumstances of the case.

What if you take something, without the consent of the owner, but intend to give it back? That would still be theft. You can commit theft by depriving the owner of their property permanently, temporarily or indefinitely.

“Permanently” is straightforward enough. As for the other two:

HMA v Mackenzie (1913 S.C.(J.) 107)

  • The accused “borrowed” a book without the consent of the owner.
  • He intended to copy the contents, then return the book.
  • He was convicted of theft of the book.

“That such a taking, although there is no intention to retain the article, may be theft is, I think, clear…[if] the book was taken for a nefarious purpose


Fowler v O’Brien (1994 SCCR 112)

  • The accused had asked to have “a shot” of the complainer’s bike. The complainer had refused, but the accused took it anyway and rode off.
  • The accused had not given any indication of how/when he would return the bike.
  • The complainer had eventually recovered his bike, days later.
  • The accused was convicted of theft. His appeal was refused.

“the owner was deprived of his bicycle indefinitely, since it was not made clear to him whether and, if so, when it would be returned to him”

This concept of “nefarious purpose” is quite helpful if you have a situation in which the property in question is eventually returned to the rightful owner. Compensating the owner upon return does not mean that theft did not occur in the first place.

If the accused is effectively holding the owner’s property “hostage”, this can be theft.

Milne v Tudhope (1981 JC 53)

  • A homeowner had contracted the accused to carry out improvement work on their property.
  • The homeowner was dissatisfied with the result of the accused’s work, and asked them to do further work. The accused demanded further payment, but the homeowner would not agree.
  • The accused entered the home and removed doors, windows, a boiler, radiators and tiles. This was an attempt to force the homeowner to agree to payment for (now urgent) further work.
  • Milne’s conviction for theft was upheld.

The above case could also be considered as extortion, in the sense that Milne was attempting to obtain money by what could be considered as threatening actions.


Aggravations of Theft

Assault and robbery is when a theft is accompanied by an assault. Since an assault does not always involve the accused making physical contact with the complainer (in other words, brandishing a knife at someone, causing fear of injury, could be an assault), your classic “mugging” (“Give me your phone or I will hurt you”) would ordinarily be prosecuted as an assault and robbery.

Theft by housebreaking : there is no crime of “burglary” in Scotland. Additionally, housebreaking has to be connected with theft; there is no crime of “housebreaking with intent to assault”. It is either theft by housebreaking or housebreaking with intent to steal.

Theft by housebreaking requires the overcoming of security to a building to gain unauthorised entry. It doesn’t need to be a house, and it doesn’t need to involve violent means. For example, you could commit theft by housebreaking if you gain entry to premises by smashing a window, taking a key and using it to unlock a door, or using some unusual way to gain entry, like climbing a drainpipe or descending down a chimney.

Theft by opening lockfast places (or “theft OLP”) involves the forcing open (or by unauthorised use of the key) of locked things that aren’t buildings, like vehicles, cupboards or safes.

It is also worth noting that, while it isn’t “theft” per se, section 57 of the Civic Government Scotland Act 1982 criminalises “any person who, without lawful authority to be there, is found in or on a building or other premises, whether enclosed or not, or in its curtilage or in a vehicle or vessel so that, in all the circumstances, it may reasonably be inferred that he intended to commit theft there”.


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