How is the "permanent deprivation" element of theft proven in practice?

Question

I never gave this much thought until I saw a prosecutor and then a judge dismiss charges of theft because it would be impossible to prove the accused intended to deprive the owner of the property permanently. Sure enough, this seems to be a common-law element of theft.

So how does anyone get convicted of theft? Can't an alleged thief just assert, "I intended to return the property at some point?"

Even if the thief has lost the means to return the property, it seems like a tall order to prove beyond a reasonable doubt that his true intent is the opposite of his stated intent. And it seems like a clever thief could make sure, e.g., by swearing out an affidavit before the theft, that he intends to return the property.

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Update: Many thieves are sloppy, and leave their intent open to question. I am looking for an answer that explains whether someone who credibly asserts – e.g., by advance sworn affidavit – that they intend to return the item can be convicted of theft, or any other crime, for taking someone else's property for an extended but not infinite period of time.

Answer 1

Since you asked about any jurisdiction, and presumably any common law jurisdiction, in which one of the elements of theft is the intention to permanently deprive the owner of the property, here's the UK* answer.

Regarding borrowing specifically, the UK statute referring to theft - the Theft Act 1968 - provides for this in section 6(1):

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; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.

In other words, a thief may say 'I only wished to borrow it', but that won't necessarily amount to a defence under English law. It depends on how long (s)he borrows it for, and how (s)he treats it while borrowing it.

In addition, the case law clarifies what is meant by 'his intention is to treat the thing as his own to dispose of regardless of the other's rights'. This has been held to mean:

1. Selling, Bargaining with. R v Cahill, R v Lloyd
2. Rendering Useless. DPP v J
3. Dealing with in a manner which risks its loss. R v Fernandes, R v Marshall
4. Borrowing in certain circumstances. R v Lloyd
5. Pawning. s6(2) Theft Act 1968
6. Not enough to just deal with it. R v Mitchell

So how do we prove whether someone intended to deprive the owner of the property permanently, or at least permanently enough to amount to an offence under the Act? The answer seems to be that we look at how they deal with it, and what condition they leave the property in. If they do any of the things listed above, with the exception of no. 6, then they have demonstrated an intent to permanently deprive; if they merely use the property, then that isn't enough to show such intent.

You asked specifically:

I am looking for an answer that explains whether someone who credibly asserts – e.g., by advance sworn affidavit – that they intend to return the item can be convicted of theft, or any other crime, for taking someone else's property for an extended but not infinite period of time.

In the case of R v Lloyd, the court held borrowing would become intention to permanently deprive the owner of the property if 'all goodness, virtue and practical value is gone'. So if someone swore they were planning on returning the item, the court could nonetheless convict them of theft if they held on to the item for so long, and treated it as their own to such an extent, that all its value was gone. (In R v Lloyd, the items in question were films, and as they were returned in much the same condition as they'd originally been in, this was held not to be intention to permanently deprive, and therefore not to be theft.)

*By 'UK' I mean 'English and Welsh'; the answer may be different in Scotland.

Answer 2

Under the MPC Section 223.2, Theft is defined as "A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof."

Lets break this apart a little first.

A person is guilty of theft if . . .

This is a prelude of what the law says.

. . . he unlawfully takes, or exercises unlawful control over, . . .

This is the action element of the crime, also called the actus reus.

. . . movable property of another . . .

This is the object of the crime

. . . with purpose to deprive him thereof.

This is the intent element of the crime. Also called the Mens Rea. Because the intent is clearly indicated and necessary for the crime, it is called a 'Specific Intent' crime.

For the 'Purpose' culpability level, it must be the defendant's conscious object to engage in such conduct. Additionally, the attendant circumstances must be met: the defendant is aware of hopes or believes the circumstances exist. And lastly, it must be the defendants conscious object to cause this result. (in this case the taking of the object).

Additionally, 'deprive' is defined as:

(1) "deprive" means: (a) to withhold property of another permanently or for so extended a period as to appropriate a major portion of its economic value, or with intent to restore only upon payment of reward or other compensation; or (b) to dispose of the property so as to make it unlikely that the owner will recover it.

With your other questions, this statute includes an ". . . or exercises unlawful control over . . ." piece that would preclude your example.

Answer 3

In McEachern v Commonwealth, 667 SE 2d 343 (Va Ct App, 2008), the appellant claimed that the evidence failed to prove he intended to permanently deprive the victim of her vehicle.

The appellant claimed that, though he had taken the vehicle, he had abandoned it later, and demonstrates that "he intended only to temporarily deprive the victim of the vehicle".

From the judgement¹:

"In determining intent, 'the factfinder may consider the conduct of the person involved and all the circumstances revealed by the evidence.'"
...
The specific intent in the person's may, and often must, be inferred from that person's conduct and statements.
...
[T]here is not one case in a hundred where the felonious intent in the original taking can be proved by direct evidence. From the nature of the case, intent, generally, must be inferred from circumstances.
...
In Virginia ... "the wrongful taking of the property in itself imports the animus furandi.

Based on this judgement, we would see that:
1. The actions of the person involved may be considered in determining intent
2. The very trespassory act of taking an item may be considered proof of intent to permanently deprive (in the absence of countervailing evidence to the contrary)

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^{1. Citations omitted.}