Gavin Howe
Theft is a common law offence in some countries, but not in others. For example, in the U.S., common law offences were deemed unconstitutional by the Supreme Court in 1812, but some states still recognise them. In the UK, theft is defined as taking or appropriating property belonging to another without their consent, with the intention to deprive them of its use. Common law offences are crimes under English criminal law, but they are not codified in a single document like a Criminal Code. Instead, they are developed entirely by the law courts and are punishable by unlimited fines and imprisonment unless a specific maximum sentence has been codified. While some common law offences have been abolished or redefined as statutory offences, others remain in place.
| Characteristics | Values |
|---|---|
| Common law offences | Crimes under English criminal law and the criminal law of some Commonwealth countries |
| Offences developed entirely by the law courts with no basis in statute | |
| In some U.S. states, common law defines the elements of many crimes | |
| Common law offences are punishable by unlimited fines and imprisonment in England and Wales | |
| Common law offences have been abolished in some countries and replaced with statutory offences | |
| Common law offences are subject to interpretation and appeals | |
| Theft | Taking and/or appropriating property belonging to another, without their consent, with the intention to deprive them of its use |
| Includes living things and corporeal, moveable property | |
| Does not include cryptocurrencies |
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What You'll Learn
Theft Act 1968
Theft is a common law offence, and common law offences are crimes under English criminal law and the criminal law of some Commonwealth countries. The Theft Act 1968 is one of the most effective pieces of legal drafting in the post-war era. It simplified many offence definitions and combined various statutes and offences. It replaced the Larceny Act 1916, which was the final Larceny Act in a series that aimed to modernise theft law.
The Theft Act 1968 introduced a new definition of theft, which included five elements that must all be present for the offence to be committed. These are: dishonesty, appropriation (i.e. taking), there must be property, it must belong to another person, and intention to permanently deprive the owner of it. The following five sections of the Act expand on these concepts.
Section 12 of the Act deals with the offence of taking without consent (TWOC), which applies to any mechanically propelled vehicle, not just cars. TWOC does not require the intention to permanently deprive the owner of possession, which differentiates it from theft. Section 12(5) creates a separate offence for taking a pedal cycle.
The Act also covers the misappropriation of electricity, which was not considered theft under previous laws due to it being a form of energy and not a physical substance.
The Theft Act 1968 has been modified by subsequent acts, including the Theft Acts 1978, the Theft (Amendment Act) 1996, and the Fraud Act 2006, but it remains mostly unchanged since its passing.
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$32
Common law offences
In England and Wales, the Law Commission aims to abolish common law offences and replace them with offences defined by statute. However, this has not been completed, so some common law offences remain. These offences are punishable by unlimited fines and imprisonment unless a specific maximum sentence has been codified.
Some countries, like the USA, have a "Criminal Code" that consolidates criminal offences into a single document. In contrast, Scotland does not have a Criminal Code, and its offences are categorised into common law offences and statutory offences. Common law offences are created by the courts and are constantly evolving, making it crucial for criminal lawyers to stay updated.
Theft, which involves taking property without the owner's consent, is addressed in the Theft Act 1968. While the act does not define "theft", it provides context through associated offences like robbery, blackmail, burglary, and handling stolen goods. The act also covers specific scenarios, such as theft involving a cat or dog, which may be charged as domestic burglary or robbery.
In conclusion, theft is addressed in the Theft Act 1968, which provides context and related offences to understand and prosecute theft. While the act does not define "theft," it offers a legal framework to address this common law offence.
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Criminal Code
Common law offences are crimes under English criminal law, the related criminal law of some Commonwealth countries, and under some U.S. state laws. These offences are developed entirely by the law courts and have no basis in statute law. Common law offences are punishable by unlimited fines and imprisonment unless a specific maximum sentence has been codified.
Some countries, such as the USA, have a "Criminal Code" that consolidates most or all of their criminal offences into a single document. Scotland, for example, does not have such a code. Its criminal offences are categorised into two groups: common law offences and statutory offences.
In Canada, the Criminal Code enacted in 1953 abolished all common law offences except contempt of court. Similarly, in 1995, the Criminal Code Act in Australia abolished all common law offences at the federal level. However, some Australian states have retained these offences.
In England and Wales, efforts have been made to abolish common law offences and replace them with offences defined by statute law. This is because common law offences are seen as vague and open to development by the courts in ways that might offend the principle of certainty. However, these efforts are yet to be completed, and some common law offences still exist.
Theft, which involves taking and/or appropriating property belonging to another without their consent, is a common law offence. It is defined in sections 1–6 of the Theft Act 1968. The Act also covers related offences such as burglary, robbery, blackmail, and handling stolen goods.
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Statutory offences
Theft is a common law offence. Common law offences are crimes under English criminal law, the related criminal law of some Commonwealth countries, and under some U.S. state laws. They are offences under the common law, developed entirely by the law courts, having no specific basis in statute. Common law crimes like theft, assault, murder, fraud, and breach of the peace were not created by Parliament and are therefore not defined in legislation.
In contrast, statutory offences are crimes created by statutes and not by common law. If an offence has been created by a "statute"—a piece of legislation enacted by Parliament—then it is a statutory offence. An example of a statutory offence is "threatening or abusive behaviour", created by s38 of the Criminal Justice and Licensing (Scotland) Act 2010.
Some countries, such as the USA, have a "Criminal Code" that compiles most or all of their criminal offences into a single document. However, Scotland does not have such a code, and its offences are classified into two broad categories: common law offences and statutory offences.
- An offence under paragraph 7 of Schedule 3 of the Anti-terrorism, Crime and Security Act 2001 (freezing orders).
- An offence under paragraph 30 or 30A of Schedule 7 to the Counter-Terrorism Act 2008, relating to specific requirements mentioned in paragraph 13 of that Schedule.
- An offence under section 450 of the Companies Act 1985, concerning the destruction or mutilation of company documents.
- An offence under section 72 of the Value Added Tax Act 1994, pertaining to the fraudulent evasion of VAT.
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Common law and ex post facto laws
Common law offences are crimes under English criminal law, the related criminal law of some Commonwealth countries, and under some U.S. state laws. They are offences under the common law, developed entirely by the law courts, having no specific basis in statute. Common law offences are punishable by unlimited fines and unlimited imprisonment unless a specific maximum sentence has been codified.
Theft is an offence under common law, and it is defined in sections 1–6 of the Theft Act 1968 (TA 1968). Robbery, which involves the use of force, is also considered a form of theft under common law. However, not every act of taking something without permission constitutes theft; if trickery is involved, it may be charged under the Fraud Act instead.
Some argue that common law offences are inconsistent with the prohibition of ex post facto laws. Ex post facto laws are those that retroactively criminalise behaviour, applying to events that occurred before the law was enacted. The United States Constitution expressly forbids ex post facto laws in Article 1, Section 9, Clause 3, and Article 1, Section 10, prohibiting Congress and the states from passing such laws.
However, the doctrine of parliamentary supremacy in some nations following the Westminster system of government, such as the United Kingdom, allows for ex post facto laws to be passed. While Australia has no strong constitutional prohibition on ex post facto laws, narrowly retrospective laws may violate the constitutional separation of powers principle. In contrast, Article 3 of the Polish civil code and Article 18 of the Portuguese Constitution explicitly prohibit the retroactive application of laws.
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Frequently asked questions
Theft is taking and/or appropriating property belonging to another, without their consent, with the intention to deprive them of its use.
Theft is a common law offence. Common law offences are crimes under English criminal law, the related criminal law of some Commonwealth countries, and under some U.S. state laws. They are offences under the common law, developed entirely by the law courts, having no specific basis in statute.
Theft is a common law offence in England and Wales, some U.S. states, and some Australian states.
Theft is not a common law offence in Scotland, Canada, and some Australian states, including the Australian Capital Territory, the Northern Territory, Queensland, Tasmania, and Western Australia.
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