15 September 2021
Not reviewed after the date of publication
Person A has a cat as a pet. This cat often leaves the house and is tagged electronically with a GPS collar. Person A's neighbour (B) has continually been taking the cat in to their house. This is causing upset to person A, but also suffering to the cat due to its required diet and health conditions. Person B has been told not to do this on numerous occasions and has refused to stop.
Does person B commit the offence of theft? If not, are other offences possibly present?
Section 4 of the Theft Act 1968 defines the term 'property' for the purposes of the offence of theft under section 1 of the Act.
Subsection 4(4) states that:
'Wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the carcase of any such creature, unless either it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or another person is in course of reducing it into possession.'
Therefore in our opinion a domestic cat, ordinarily kept in captivity (i.e. lives in someone's home) which is microchipped as belonging to a person at a particular address, would be property for the purposes of the Theft Act 1968.
Whether the offence of theft is committed will depend on the full facts and the evidence available. The following elements of theft will need to be considered in relation to your case.
For the offence of theft to be committed, it must be shown that the person has:
Dishonestly appropriated property
Belonging to another
With the intention of permanently depriving the other person of it
(as per section 1 of the Theft Act 1968 ).
'Belonging to another' should be straightforward, as there doesn't appear to be any dispute as to who owns the cat.
With regards to 'dishonestly appropriating property'section 2 of the Theft Act 1968 provides for circumstances which are not to be regarded as 'dishonest', being:
(a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or .
(b) if he appropriates the property in the belief that he would have the other's consent if the other knew of the appropriation and the circumstances of it; or
(c) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.
Again, we don't foresee that any of these apply from the scenario described, or that Person B could justify that they have not acted dishonestly in the circumstances. However, there may be other factors present in the case that we aren't aware of and so consideration should be given to whether any of the above do in fact apply.
The key issue with regards to proving intention to permanently deprive, will be whether person B treats the cat as their own, to dispose of regardless of the owner's rights. Section 6(1) of the Act states:
'A person appropriating, property, belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other's rights.'
This is normally left to the jury to decide, according to the everyday understanding of the phrase. However, before a case reaches the court stage, we appreciate that officers and or / CPS need to be satisfied that all points of an offence have been proved in order to charge. Whether 'intention to permanently deprive' has been proved in the context of this case is tricky. On the one hand, the view could be taken that in bringing the cat into their home and refusing to follow the wishes of the owner, Person B has formed an intention to deprive, but the issue is whether this is permanent. The alternative view, may be that there is no intention to permanently deprive, due to there being evidence of the cat being returned to its owners, although no information on how frequently this occurs has been provided, the more frequently the cat returns the less likely the issue of permanent deprivation can be evidenced. Unfortunately, we have been unable to locate any case law that would assist in clarifying the correct manner to interpret this particular aspect of the offence. It may be that CPS are able to advise further on this particular point and whether it is something that has caused difficulty for them practically, based on their experience of prosecuting such cases.
We aren't aware of any other offences that would be committed in the circumstances. We have considered whether animal welfare offences under the Protection of Animals Act 1911 and Animal Welfare Act 2006 would have been committed by Person B, based on the fact that the cat has health and dietary conditions, however we don't believe the same would be made out in the circumstances.
Where the offence of theft cannot be proved, civil proceedings may have to be considered by the owner.
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