R v Mohammed Abdi Mahmud

A genuine belief that one has a legal right to recover property provides a conclusive defence to dishonesty under section 2(1)(a) of the Theft Act 1968. A defendant need not use legal terminology to raise the issue. An assertion of ownership, explained by non-payment for an earlier sale, may support an inference of belief in a legal entitlement.

Although a separate claim-of-right direction is not invariably needed, it must be given where it materially adds to the ordinary dishonesty direction. Where the jury ask whether an honest belief that the item was the defendant's defeats dishonesty, they must be told that a belief, or possible belief, in a legal right to take it requires acquittal.

The applicant was convicted of robbery at Isleworth Crown Court on 2 July 2021. He maintained that, when he took the complainant's telephone, he believed it was a telephone he had previously sold to the complainant and for which he had not been paid.

The trial judge gave the ordinary direction on dishonesty. Following a jury question, the judge told them that a claim of right did not arise and referred to the passing of property on sale. The applicant sought leave, out of time, to appeal against conviction. The central issue was whether the evidence raised the statutory claim-of-right defence and whether the supplementary direction rendered the conviction unsafe.

1. Appeal allowed. The court granted the extension of time, allowed the appeal and quashed the robbery conviction because the jury directions made the conviction unsafe.

2. Section 2(1)(a) of the Theft Act 1968 creates a conclusive defence on dishonesty where the defendant genuinely believes that he has a legal right to deprive another of the property. The prosecution bears the burden of negativing that belief to the criminal standard. The defendant need not articulate the belief in legal language. Whether the belief is one of legal entitlement, rather than non-legal fairness, will usually be inferred from the evidence.

3. The applicant's account raised that defence. His assertion that the telephone was his, coupled with his explanation that he had not been paid for it, was capable of showing a belief that he remained legally entitled to recover it. If the jury accepted, or were not sure whether, he held that belief, he could not be dishonest as a matter of the statutory defence.

4. Applying R v Matthews-Williams [2023] EWCA Crim 1486, a separate direction on section 2 is required only where it would materially add to the ordinary dishonesty direction. It became necessary here when the jury specifically asked whether an honest belief that the telephone was his defeated dishonesty. They should have been directed to acquit if they found that he believed, or might have believed, that it was his telephone.

5. The Recorder's reliance on possessory rights and on the passing of property on sale did not answer that question. There was no issue that the telephone taken belonged to the complainant. The direction risked conveying that, because the applicant was not legally entitled to the telephone in fact, his belief that it was his could not prevent dishonesty. That was misleading.

6. Alternatively, if belief that the telephone was his did not itself establish belief in a legal right to take it, the jury should have been directed first to determine whether he held such a legal belief. Only if they rejected that issue would they then consider ordinary dishonesty, including whether a merely moral entitlement was honestly held.

• Court of Appeal (Criminal Division): On 26 January 2024, the court granted an extension of time, allowed the appeal and quashed the conviction: [2024] EWCA Crim 130.

• Crown Court at Isleworth: On 2 July 2021, following trial before a Recorder and jury, the applicant was convicted of robbery and acquitted of threatening another with an article with a blade or point.