Introduction
The offence of theft, as defined in section 1(1) of the Theft Act 1968, requires the prosecution to prove that the defendant (D) dishonestly appropriated property belonging to another with the intention of permanently depriving the other of it. While the concepts of appropriation and dishonesty have generated significant judicial and academic debate, the final element of the mens rea, the ‘intention of permanently depriving’ (ITPD), has also required careful legal consideration. This essay will argue that while the core principle of ITPD is straightforward, its application to more complex scenarios has necessitated statutory extension and judicial interpretation, particularly through section 6 of the 1968 Act. This has created a functional but sometimes complicated legal test that prioritises punishing blameworthy conduct over maintaining absolute clarity and conceptual purity.
The Core Meaning of Intention to Permanently Deprive
At its heart, the requirement of an ITPD reflects the ordinary understanding of stealing: taking something with the intention of keeping it forever. In the majority of cases, the existence of this intention is a simple matter of factual inference. If D takes V’s wallet from their pocket and runs away, a jury can easily infer from D’s actions that they intend to keep it permanently. The primary purpose of this element is to distinguish theft from less serious conduct, such as unauthorised borrowing, where the property is taken without the owner’s consent but with a genuine intention to return it.
However, the courts have interpreted the core meaning strictly. For instance, an intention to replace the property with an identical or equivalent item is not a defence. In R v Velumyl [1989] 1 Cr App R 440, the appellant, a company manager, took money from the office safe, intending to repay it the following Monday. The Court of Appeal upheld his conviction for theft, holding that he had an intention to permanently deprive the company of the specific banknotes and coins he had taken. An intention to return items of an equivalent value was not the same as an intention to return the exact same property. This decision demonstrates that the law is concerned with the owner's proprietary interest in the specific item that was appropriated, not just their general financial position. Therefore, even in what might seem like a simple case of 'borrowing' money, the law can find an ITPD.
The Statutory Extension under Section 6(1)
The most significant complexities arise in situations where D does not intend for the owner to be deprived of their property forever, but D’s conduct in relation to the property is so serious that it warrants a theft conviction. Parliament anticipated these difficulties and provided an extended definition of ITPD in section 6 of the Theft Act 1968.
Section 6(1) states that a person may be regarded as having the necessary intention if their intention is to "treat the thing as his own to dispose of regardless of the other's rights". This wording is designed to catch cases where D deals with the property in a manner that is inconsistent with the owner’s rights, even if D claims they intended to return it eventually. The leading case on this provision is R v Lloyd [1985] QB 829. In Lloyd, a cinema projectionist borrowed films from his workplace so that his accomplices could make illegal pirate copies. He would then return the films, often within a few hours, in time for the next scheduled screening. The defence argued that there was no ITPD as the films themselves were always returned. The Court of Appeal agreed and quashed the convictions for theft. Lord Lane CJ held that a mere borrowing is not covered by section 6(1) unless the intention is to return the item in such a changed state that "all its goodness, its virtue, the practical value has gone out of the article". As the films were returned in a condition where they could still be projected, their value was not exhausted, and thus there was no ITPD.
The Lloyd principle establishes a high bar for borrowing to become theft. It is not enough that the property's value is slightly diminished; its essential utility must be spent. This was demonstrated in DPP v J [2002] EWHC 291 (Admin), where the defendant took the victim’s headphones, snapped them, and then gave them back. This was held to amount to an ITPD because the headphones were returned in a useless state, having had their 'goodness' removed. A more common application of the 'dispose of' aspect of section 6(1) is seen in cases like R v Marshall [1998] 2 Cr App R 282. There, the defendants obtained unexpired London Underground tickets from commuters and resold them to others. The court held that by reselling the tickets, they were treating them as their own to dispose of, regardless of the rights of London Underground. This conduct fell squarely within the meaning of section 6(1), thus establishing an ITPD.
Ransom Cases and Parting with Property under a Condition
Section 6 also deals with ransom-style cases and situations involving pawning. The wording in section 6(1) about treating the thing as one's own to "dispose of regardless of the other's rights" is broad enough to cover situations where D takes property and demands a payment for its return. In R v Raphael [2008] EWCA Crim 1014, the defendants violently took the victims' cars and, in separate incidents, demanded money for their return. The court had no difficulty in finding that this was an ITPD, as D was treating the property as his own to dispose of by offering to sell it back to the true owner.
Furthermore, section 6(2) provides that a parting with property may amount to an ITPD where it is done "for a period and in circumstances making it equivalent to an outright taking or disposal". The subsection gives the specific example of where D parts with property under a condition as to its return which they may not be able to perform. The classic example is a person who takes V’s property and pawns it, intending to redeem it and return it to V later. If D knows that they may not have the money to redeem the item, their intention can be regarded as an ITPD. This provision ensures that a risky disposal of another’s property is not excused simply because the defendant harboured a hopeful, but perhaps unrealistic, intention of eventually making things right. As leading commentators note, these provisions show that section 6 is not a comprehensive definition of ITPD, but rather a guide to interpretation in difficult cases (Ormerod and Laird, 2021).
Conclusion
In summary, the mens rea element of an intention to permanently deprive is a crucial part of the law of theft, serving to separate permanent takings from temporary borrowings. While the core concept is easy to understand, its boundaries are not always clear. The strict approach in cases like Velumyl shows that even an intention to replace property with an identical substitute is not sufficient to negate ITPD. The main area of difficulty, however, concerns cases of borrowing or temporary dealing with property. To address this, section 6 of the Theft Act 1968 extends the meaning of ITPD to include conduct that is equivalent to an outright taking, such as treating the property as one's own to dispose of or returning it in a useless state.
The judicial interpretation of section 6, particularly the test from R v Lloyd, has provided a workable solution, but it is one that relies on vague concepts like the 'goodness' and 'virtue' of an object. This has arguably introduced a degree of uncertainty into the law. While section 6 has proven effective in ensuring that blameworthy individuals in cases like Marshall and Raphael are convicted of theft, it has done so by creating a somewhat complex and technical definition that departs from the ordinary meaning of the words "permanently deprive". The law in this area therefore represents a pragmatic compromise, sacrificing some measure of legal certainty in order to achieve justice in individual cases.
References
- DPP v J [2002] EWHC 291 (Admin).
- Ormerod, D. and Laird, K. (2021) Smith, Hogan, and Ormerod's Criminal Law. 16th ed. Oxford: Oxford University Press.
- R v Lloyd [1985] QB 829.
- R v Marshall [1998] 2 Cr App R 282.
- R v Raphael [2008] EWCA Crim 1014.
- R v Velumyl [1989] 1 Cr App R 440.
- Theft Act 1968.
