Taking without consent (TWOC)
Under Section 12 of the Theft Act 1968 (TA 1968), taking without consent is defined as taking, or allowing oneself to travel in a vehicle without the owner’s permission or other lawful authority.
Taking without consent covers mechanically engineered vehicles, if a pedal cycle were to be taken, the offence would be covered under Section 12 of TA 1968.
If the defendant damaged the vehicle, or an accident occurred during the offence, this will have an impact on the sentence imposed on conviction.
What constitutes “taking”?
You would not be found guilty of taking if, at the time of the offence, you believed you had lawful authority to take the vehicle or the owner’s permission.
Similarly, a person would not commit TWOC if they believed they would have the owner’s consent if they were aware of the circumstances for taking the vehicle.
The taking must be without consent, and the vehicle must have moved some distance, although the defendant does not necessarily have to be the driver of the conveyance.
Defining a conveyance
Under Section 12 of TA 1968, conveyance refers to transporting a person, or group of people by land, water or air by vehicle for personal use, or the use of another.
Pedal bikes and animals such as horses do not qualify as a conveyance as they are not constructed or adapted in a way that may become one.
Under s12 TA 1968 emphasis is placed on motor vehicles, with the most common conveyance being a car.
Without the owner’s consent or other lawful authority
If taking was obtained by fraud, the defendant might not necessarily be charged with TWOC as there is no rule that fraud violates consent.
Under this circumstance, the offender should be prosecuted and charged under the Fraud Act 2006.
If the defender had been authorised to use the vehicle for a limited time but continues to use that vehicle beyond its designated purpose, under s12 TA 1968, they would be liable for the offence of taking without consent.
Driving or allowing oneself to be carried in a conveyance taken without consent
Anyone that intentionally drives or allows themselves to be transported in a vehicle taken without the owner’s consent or lawful authority is guilty of TWOC.
However, the defendant must move the vehicle to be charged with TWOC; they cannot sit in a stationary vehicle that has been taken without consent, even if they know the conveyance has been taken.
Under the Sentencing Council’s guidelines, the maximum penalty for taking without consent is six months imprisonment and/or an unlimited fine.
Upon conviction, the court must consider the level of culpability and harm when sentencing the defendant. The magistrates also have the right to disqualify an offender when committed for such an offence but cannot endorse penalty points.
For cases that appear before the Crown Court, the maximum penalty that can be given is a two-year sentence and/or an unlimited fine.
Under s12 TA 1986, in cases of theft, a jury may deliver a verdict of taken without consent if they do not believe that stealing has been proved.
If an offender is committed on indictable offences, any linked case of taking without consent may be added to the indictment under s40 of the Criminal Justice Act 1988.
For example, in the case of burglary, the motorised vehicle must have moved from its original position and been used immediately, or after the primary offence occurred. The conveyance must have also been taken without the owner’s consent or legal authority.
A defendant is charged with aggravated taking without consent when they drive or are carried in a conveyance without the owner’s permission or lawful authority and:
- The vehicle was driven dangerously in a public place or on a road
- An accident occurred, and injury is caused to any person
- Some form of property was damaged during the offence, or
- the vehicle itself would need repair.
The offender would still be found guilty if they were not driving the vehicle during the aggravating event, however, it is open to the defendant to raise a defence under s12 TA 1968.
Offenders charged with aggravated vehicle taking can be dealt with in both the Magistrates’ Court or the Crown Court, as opposed to the basic TWOC offence.
Mechanically propelled vehicle
Regarding aggravated taking without consent, who is at fault is a distinctive element of the offence.
When trying to prove that a person was injured, dangerous driving must be linked to the cause of the accident.
If the defendant damaged the vehicle itself, this doesn’t need to have been caused by dangerous driving. Instead, it is up to the court to decide culpability in those cases.
Sentencing Aggravated TWOC
Under the Sentencing Council’s guidelines, aggravated taking without consent is triable either way.
In the Crown Court, the maximum penalty that can be given is two years imprisonment and/or an unlimited fine, whereas, in the Magistrates’ Court, the maximum penalty for aggravated TWOC is a level 5 fine and/or six months’ imprisonment.
If the defendant injured any person and that accident caused death, the Crown Court has the right to increase the maximum penalty to fourteen years.
However, taking without consent that results in death should be treated as a separate offence, and the fatality should be added to the indictment or charge. Or, if there is ample evidence that the defendant’s dangerous driving caused the fatality, prosecutors should charge the offender with causing death by dangerous driving.
In aggravated TWOC cases, the court can also impose anywhere between 3-11 penalty points on the defendant’s driving license and disqualification for a minimum of 1 year.
Further disqualifications can be endorsed at the court’s discretion, especially if there is evidence of dangerous driving.