R v Andrew Lakeman

The issue in this case is whether “gold pieces” as a form of wealth in a video game constitute property within the meaning of s. 4 of the Theft Act 1968.

The game in question is Old School Runescape, which is a role-playing game developed and published by Jagex Ltd (‘Jagex’). It is played online by a large number of players worldwide, typically in excess of 100,000 at any one time. Each player has an account protected by a username and password of their own choosing. In the game they have an avatar which interacts with other players’ avatars and non-player avatars, such as humans, vampires, goblins and giants, in a fictional realm with multiple kingdoms. There are various forms of the game, but in its essential conception a player needs to build up in-game wealth in order to improve their avatar’s capabilities and access additional levels in the form of available quests. The in-game wealth can be achieved in several different ways. Players can accumulate wealth in the form of tokens which are, or can be converted into, gold pieces, by performing in-game tasks (e.g. woodcutting or mining). This can be a time consuming process in building up the in-game resources necessary to achieve a desired skill or level or the ability to perform a particular task. Players can also transfer gold pieces between each other within the rules of the game by two methods. There is an anonymous “grand exchange” by which gold pieces may be transferred in exchange for consumables or other items of value in the game, such as a cloak or amulet which strengthens the player’s avatar. They may also be transferred by a direct player to player transfer provided the players are within close proximity within the game. A player may also buy from Jagex a bond (at the time costing £6) which is redeemable for 14 days of game-time membership. Such bonds can be, and often are, transferred on the grand exchange in exchange for gold pieces (a bond currently being worth about 13 million gold pieces). In this way, and only in this way, the game rules allow a player to use fiat currency to generate gold pieces in the game. The number of gold pieces generated by a bond might take some 15 hours to earn by completing in-game tasks.

The rules of the game do not entitle the players to cash in their in-game wealth with Jagex for fiat currency; and they expressly forbid any sale outside the game. Nevertheless gold pieces have a real world value because they are regularly bought and sold outside the game, despite this prohibition. Typically the vendor and purchaser will negotiate the terms of a sale off-line, either through one of a large number of third party websites dedicated to trading in-game wealth of this kind or on a platform such as Discord, a chat platform communications network used by gamers. The gold pieces are then transferred from the vendor to the purchaser in-game by player to player transfer, with the vendor being paid off-line by a fiat currency or cryptocurrency transfer. At the time of the alleged offences an offline purchase would cost the purchaser about £2.70 for the same number of gold pieces as would be generated by a £6 bond purchased from Jagex.

Gold pieces exist in a virtual world. In the real world they are visual and functional manifestations of software comprising coded digital data. Each allocation of gold pieces to an individual player’s account exists in a digital ledger held on Jagex’s servers in the form of such coded data. It is instantiated, that is to say that what appears functionally in a player’s account as a particular volume of gold pieces is a product of a set of coded data which attributes them to that particular player.

Jagex uses two types of source code in the game. One is written in Jagex’s proprietary source code called Runescript developed by Jagex’s software engineers. The copyright in such code belongs to Jagex and restrictions on its use are contained in an End User Licence Agreement and Terms and Conditions (as to which see below). This code governs the commands in the game. The other source code is written in JavaScript, the well-known and widely used programming code. Jagex uses JavaScript to create what it calls its ‘game engine’ which carries out the command instructions written in Runescript. It appears from the End User Licence Agreement that Jagex also uses various other forms of software licensed from third parties. A player’s holding of a quantity of gold pieces on the digital ledger on Jagex’s servers comprises code in which Jagex holds no copyright. At one stage the prosecution contended, amongst other things, that Jagex had a copyright interest which was relevant property falling within s. 4 of the Theft Act. However in argument before us, Ms Kenyon expressly confirmed that it was not contended by the prosecution that Jagex had a proprietary copyright interest in the instantiated data which reflected a quantity of gold pieces in a particular player’s account.

The evidential position concerning the contractual and licensing framework is unsatisfactory. Mr Bridges, a Jagex coder whose statement identifies the coding position we have described, refers to the copyrighted code being subject to an End User Licence Agreement and to Terms and Conditions. The oral argument was conducted before us by both parties pointing to and relying upon particular passages in a number of different documents holding one or other of these titles, which were not in identical form. The documents were disclosed as part of the prosecution case, and it seemed that the parties agreed that the terms to which they referred reflected the relevant contractual and licencing framework, notwithstanding that there does not appear to have been any explicit agreement as to the factual basis on which the preliminary issue of law fell to be decided by the Judge. However it emerged from written submissions after the hearing of the appeal that the Respondent did not accept the admissibility, and therefore evidential status, of the documents relied on for the contractual and licencing framework (although passages in these had been relied on more heavily by the Respondent than by the prosecution in its arguments before us and below).

There are different versions of three types of document available on the Digital Case System. They are entitled (1) Terms and Conditions; (2) Rules of Conduct of Runescape; and (3) End User Licence Agreement. They were not provided by Jagex (with one exception) but obtained by DC Mckeane, the officer in the case, from a website called “Wayback Machine” which seeks to catalogue internet pages from the past. The Terms and Conditions documents obtained by this method have iterations “captured at” at successive dates, two of which are within the indictment period for Counts 1 and 2 (17 March to 29 July 2018). One is “captured at” 20 March 2018 and one at 23 July 2018. The only version of the Rules of Conduct comes from a link embedded in the Terms and Conditions captured at 20 March 2018. The only End User Licence Agreements obtained are from 2020 which post-dates the indictment period. One is described by DC Mckeane as having been provided by Jagex and “dated May 2020 and shows as EULA version 1.0” although neither the date nor version number are apparent from the document exhibited to DC Mckeane’s statement. It applies to “Runescape Client” software. The other was obtained from Wayback Machine captured at October 2020 but entitled “Version 2.0 (dated 19 May 2020)”. It applies to “Runescape Client and Old Runescape Client” Software.

We will proceed on the basis that the relationship between Jagex and the players of the game was at the material time governed by (i) the first version of the Terms and Conditions captured at 20 March 2018 (‘the T&C’); (ii) the Rules of Conduct embedded in it (‘the Rules’); and (iii) the earlier version of the End User Licence Agreement which applies to “Runescape Client” software (‘the EULA’). To the extent that the true evidential position may turn out to be different, and that any such difference would be material to our conclusions, which we very much doubt, the parties will be free to argue that our decision is not determinative. The remainder of what we say below is subject to that caveat.

We have set out the material terms of these three documents in the Appendix to this judgment, because they are lengthy. If contractual, the following were the most relevant terms agreed between Jagex and each player of the game.

We have expressed some provisional views as to the construction of some of these terms, although we heard no argument on that aspect of them. We do not need to reach a concluded view, because for the reasons which we explain below, the question whether the gold pieces are property within the meaning of s. 4 of the Theft Act is not determined by private property law rights in civil law.

The Respondent worked for Jagex as a content developer. He had no role in the management of player accounts and was not authorised to access players’ accounts. Access to players’ accounts is afforded to an account recovery team within Jagex, typically for the purpose of requests for resetting of passwords. The case against the Respondent is that by hacking and/or using credentials of members of the account recovery team he obtained access to 68 accounts in which players had accumulated very substantial in-game wealth; and then stripped those accounts of hundreds of billions of gold pieces and transferred them to purchasers to whom he sold them off-line, receiving in return Bitcoin and fiat currency. Jagex has identified the number of gold pieces stripped from players’ accounts as about 705 billion with a real world trading value of £543,123.

The Respondent faces a five count indictment. Count 2 charges theft contrary to s. 1(1) of the Theft Act 1968, the particulars being that “between the 17^th day of March 2018 and the 29^th day of July 2028 he stole a quantity of gold pieces from the online game Old School Runescape to an approximate value of £543,123 belonging to Jagex Ltd.”

Section 1(1) of the Theft Act provides that “A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.” Section 1(3) provides that sections 2 to 6 have effect as regards the interpretation and operation of the section. Section 4 is headed “Property” and contains a definition of property for the purposes of s. 1(1). Section 4(1) provides:

“ “Property” includes money and all other property, real or personal, including things in action and other intangible property.”

Subsections 4(2) to (4) go on to exclude from the definition of property certain specific things in certain circumstances, namely land, wild mushrooms flowers and foliage, and untamed wild creatures.

Section 5 defines what is meant in s. 1(1) by property “belonging to another”. It provides:

“Property shall be regarded as belonging to any person having possession or control of it, or having any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest).”

Count 1 charges securing unauthorised access to computer material with intent to commit an offence, contrary to section 2(1)(a) of the Computer Misuse Act 1990. The particulars identified that it was “with intent to commit an offence to which section 2 of the Computer Misuse Act 1990 applies, namely the theft of ‘in game wealth’ (gold pieces) from Old School Runescape accounts”. This covered the conduct alleged against the Respondent in gaining access to the 68 customer accounts.

Counts 3 to 5 charge money laundering offences. Count 3 charges an offence contrary to s. 327(1)(c) of the Proceeds of Crime Act 2002 (‘POCA’) by converting the gold pieces into Bitcoin as the proceeds of crime. Count 4 charges an offence of possessing the Bitcoin as proceeds of crime contrary to s. 329(1) of POCA. Count 5 charges an offence of converting the Bitcoin to fiat currency as the proceeds of crime. In each case the crime of which these were alleged to be the proceeds is not particularised in the indictment but it was clearly intended to be the theft referred to in counts 1 and 2, as Ms Gaunt confirmed.

The defence made an application to dismiss the charges on the grounds that the gold pieces were not property within the meaning of s. 4 of the Theft Act. Both parties treated this as a novel issue of law and wanted the matter to be dealt with by way of a preparatory hearing pursuant to s. 29(1) of the Criminal Procedure and Investigations Act 1996 so as to be able to come to this court by way of appeal, if unsuccessful. The Judge acceded to that course, determining that the case fell within the guidance in R v Quillan [2015] 1 WLR 4673 at [6]-[13] as to the use of a preparatory hearing to resolve issues of law which might determine whether a trial was needed at all in lengthy and complex cases. Sections 29 (1) and (2) allow a preparatory hearing to determine an “issue … likely to be material to the verdict of the jury” The issue of law does not seem to have been precisely stated or formulated prior to the hearing but the Judge treated it in paragraph 8 of his ruling as being the issue raised by the defence seeking a ruling that “ ‘in game wealth’ aka ‘gold pieces’ within the Old School Runescape game is/are not property and therefore cannot be the subject of the offence of theft”.

The Judge ruled in favour of the defence. His reasoning can be summarised as follows. The starting point was the definition of property in s. 4 of the Theft Act. The leading authority on the definition of property is National Provincial Bank v Ainsworth [1965] AC 1175 in which Lord Wilberforce said at p.1247G-1248B: “Before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability.” The gold pieces fulfilled each of those four criteria. However it was key to whether something can be property that it should also (i) have the characteristics of rivalrousness; and (ii) not amount to “pure information”. Rivalrousness is a term popularised in mid 20^th century economics which was adopted as a relevant criterion for whether digital assets should be treated as property by the Law Commission in its Report on Digital Assets published in June 2023 (‘the LC Report’) and its Supplementary Report published in July 2024 (‘the LC Supplementary Report’). The term has been taken up in subsequent cases, notably by the Court of Appeal in Tulip Trading Ltd v Bitcoin Association BSV & others [2023] EWCA Civ 83 [2023] 4 WLR 16. The Law Commission defined a thing as rivalrous “if the use or consumption of the thing by a person, or of a specific group of persons, necessarily prejudices the use or consumption of that thing by one or more other persons.”

The Judge held that that gold pieces were not rivalrous and were more akin to pure information. The critical reasoning on rivalrousness was in paragraph 25:

“Gold pieces within [Runescape] are not sufficiently rivalrous to be classed as intangible property. One gold piece is the same as any other, and their supply is infinite. The fact that existing players have wealth does not preclude new players from joining the game and getting more wealth, without taking it from existing players. This means, in my judgment, that even if the Crown is able to prove every single factual assertion that forms the basis of its case, the offences currently charged are not made out in law and I would not be prepared to leave them to a jury.”

The critical reasoning on “pure information”, at [22], was that unlike a real world currency the supply of gold pieces is in effect infinite.

The Judge gave leave to appeal on written grounds put before him by the prosecution. The arguments were recast in the Grounds of Appeal attached to the Notice of Appeal, in a way which the Respondent contended required further leave from this court. There followed several rounds of submissions on whether the reformulated grounds were or were not outside the original leave granted, with the Crown seeking leave from this court to the extent it was needed. This is a sterile procedural debate. It was not suggested on behalf of the Respondent there was any prejudice in the grounds going beyond those for which the Judge granted leave, if they do so. There was ample notice in writing of the arguments being advanced. This Court has jurisdiction to grant leave if necessary. In a case of this nature and importance it is clearly desirable that we should decide the issue on its merits without regard to procedural skirmishing and we propose to do so.

Four preliminary questions arise as to how the issue on this appeal is to be framed. First, are we concerned with “a chose in action” or “other intangible property”, or both? Secondly, whose putative property are we concerned with; in particular is it that of the game player or Jagex or both? Thirdly, and relatedly, are we concerned with gold pieces as a visual and functional thing in the virtual world of the game, or with the coded data which gives rise to that visual and functional manifestation, or both? Fourthly, to what extent are we concerned with the nature or definitions of property in the law generally?

Ground 2 of the Grounds of Appeal criticises the Judge for addressing the issue only by reference to whether the gold pieces are “other intangible property” and failing to hold that they are a chose in action in “contract and/or tort” or “as copyrighted material”. This argument was advanced orally on behalf of the prosecution by Ms Kenyon. As we understood it, it was an argument that the player had a cause of action against Jagex. As to copyright, she expressly conceded that there was no copyright in the gold pieces, and in any event there can have been no such right in the players so as to give them a cause of action against Jagex rather than vice-versa. No argument was advanced supporting a cause of action in tort. The argument was put on the basis that there was an implied term of the EULA that a player had a right to access their account and to use and have exclusive control over the items in their account including the gold pieces. We cannot accept such an argument. No such implication is necessary for the purposes of the EULA, and indeed is contrary to the terms of the EULA which is expressed to be a revocable licence. In any event the term suggested would be wholly inconsistent with the T&Cs in the ways we have highlighted above, which give Jagex a discretion to cap, withdraw or delete gold pieces. If the gold pieces are to be characterised as property, they must be “other intangible property”.

Whose “property”?

The submissions on behalf of the prosecution at times treated the gold pieces as the property of the players from whose accounts they were stripped, and at other times as the property of Jagex. Mr Eissa KC submitted that the only issue was whether the gold pieces were the property of Jagex because the particulars under count 2 alleged that they were property “belonging to Jagex Ltd”. This is, in our view, a mistaken approach for a number of reasons. The preliminary issue of law, as argued and decided by the Judge, was not confined to whether the gold pieces were the property of Jagex but whether they were in law property at all, irrespective of whose property they might be. That is the formulation of the preliminary issue which falls to be answered on this appeal. It would be unhelpful to answer the issue of law in narrower terms, both from the point of view of this case, or for other cases in what is recognised to be a novel area of law.

Moreover it is open to the prosecution to advance its case against the Respondent under the current indictment on the basis that the gold pieces constituted the property of the game players. The particulars under count 2 are consistent with the gold pieces being the property of the game players because of the width of s. 5 which allows property to belong to more than one person. The gold pieces can potentially be property “belonging to” Jagex by reason of Jagex, in the words of s. 5, “having possession or control of” them, whilst at the same time potentially being property also belonging to the relevant game player as having a “proprietary right or interest” in them. Counts 1,2,4 and 5 depend upon the commission of a crime under s. 1 of the Theft Act but are not specific or limited as to whose property is involved. If there were any doubt about this it could no doubt be clarified by an amendment to the indictment.

Conversely if the gold pieces are the property of Jagex, they could also belong to the game players who would be persons having control over them, in the words of section 5. It is the player who decides whether and how they will be used in the course of the game, and the fact that Jagex may also have a degree of control by being able to withdraw restrict or delete them does not prevent the player having sufficient control to come within section 5. If the question is whether the gold pieces are property of Jagex, within the meaning of s. 4, it is still necessary to assess their nature and qualities by reference to the position of the players as well as Jagex.

Accordingly in addressing the issue in the appeal, the question is whether the gold pieces are “property” within the meaning of s. 4, whether that be the property of Jagex or the game players; and that question falls to be addressed by reference to the nature of the gold pieces in the game from both Jagex’s and the players’ point of view.

Gold pieces or coded data?

Gold pieces exist in the game, which is a virtual world. In the real world they are the visual and functional manifestation of software comprising coded digital data, which in relation to any set of gold pieces in a game player’s account take physical form through the mechanisms by which software manipulates hardware, by electrical or magnetic impulses, pixels and so on. As Birss LJ commented in Tulip Trading Ltd at [72] in relation to Bitcoin: “… literally all there is, is software. A physical coin has properties which exist outside the minds of people and in that sense is tangible. Bitcoin is similar. It also has properties which exist outside the minds of individuals, but those properties only exist inside computers as a consequence of the Bitcoin software. There is nothing else.”

We consider that the correct approach is to consider whether the gold pieces themselves constitute property, rather than whether the instantiated code which represents them is property. Physical existence is not a necessary ingredient of property, which includes intangible property; it also includes choses in action, which are a well-known example of property without any physical existence. Although the gold pieces exist in a virtual world they have a real world existence which manifests itself not only in their appearance and use on the screen but in real world trading. They are real functional things distinct from the code which creates them.

The data itself, as distinct from the asset it represents, is not rivalrous, in that the use of the code by Jagex or a player does not stop another person from using it: it may, in theory at least, be replicated on another computer without thereby representing anything of value to anyone. Its value qua data, if any, lies only in such protection as is afforded by the law of intellectual property. By contrast the thing which has value is the functional gold piece controlled by the game player. As we have observed, section 5 contemplates that property may belong to a number of people for the purposes of the Theft Act and that it may be property belonging to someone who merely has control of it.

The position is analogous to that which applies to cryptocurrencies, which are widely regarded as capable of constituting property (as to which see below), and for which the relevant criteria are applied to the functional concept of the cryptocurrency itself rather than to the software which creates it. Bitcoin, for example, consists of coded software which is entirely public and not the property of anyone: the code is public and is applied on a distributed ledger which itself is public. The only private element is the private key. There is no property interest in either the code or its manifestation on the blockchain. The thing which such code represents, however, namely Bitcoin as a currency, is recognised as being capable of amounting to intangible property. See Taylor & O’Floinn ‘Bitcoin Burglaries and the Theft Act’ [2021] Crim LR 163, 171, 176 emphasising that it is wrong to equate the data representing the cryptoasset with the cryptoasset itself.

The Law Commission explained the position in paras 2.28-2.30 of its Supplementary Report:

“2.28

On one interpretation, all digital things are nothing more than strings of (alphanumerical) data, represented in code by a stored sequence of bytes. On this analysis, those digital things could be said to be nothing more than pure information. If this interpretation were adopted, there could be no property rights in any digital things at all.

2.29

However, crypto-tokens are more than just information. They comprise different components, rather than being purely a data structure. Professor Fox has suggested that a digital asset such as a crypto-token is: (Footnote: ¹)

“An ideational thing containing different components. It is more complex than the £1 coin since it lacks any tangible basis and its most significant properties are matters of digital functionality rather than legal attribution. Like the coin, however, it comprises more than one component. It is grounded in, but not confined to, the technical features of its own digital design. Its outward manifestation is a string of data generated by transactions between participants on a distributed ledger system. But to see the asset as mere data would ignore its larger functionality, just as we would fail to appreciate the full economic or legal significance of a coin by treating it as a mere metal disc.”

2.30

Even though each of the individual data elements of a crypto-token can be copied — in the sense that the information can be reproduced on an equivalent medium — the copier does not get the same discrete instance of a crypto-token. Instead, what the copier gets is data in a different system. Even an exact recreation of all the elements of a particular network would result in the creation of a materially identical, yet distinct, network, populated by materially identical but distinct, rivalrous crypto-tokens. One way of thinking about this is to make an analogy with banknotes. Every Bank of England banknote has a unique serial number, but knowing or copying that serial number will not duplicate the function or value of the banknote; that number is of no use except as an intrinsic element of the banknote in question. Similarly, taking the data that makes up a token on a distributed ledger will not replicate the token because the data has no function except as instantiated in the token on the network.”

Mr Eissa told us that when a gold piece is “transferred” within the game from player A to player B, the instantiated code allocating it to the account of player A is in fact deleted and replaced by instantiated code allocating it to player B. We do not consider that this makes any difference to the concept of “transfer” of gold pieces or to their potential status as property. As Birss LJ observed in Tulip Trading at [25] there is a similar change to the blockchain code in any “transfer” of Bitcoin which some would describe as the creation of new property, but that does not affect the treatment of Bitcoin as something which is transferrable or as constituting property. When gold pieces are transferred there is a visual and functional transfer. It is immaterial that this is effected by one piece of code being replaced by another on the Jagex servers. Once again, the intangible asset is the functional ideation and to be distinguished from the code which represents it.

The question is therefore whether a gold piece as a visual and functional thing is property, not whether the code which gives rise to its visual manifestation and functionality is property.

The nature of ‘property’ generally and private law rights

Sir Roy Goode KC in his article entitled ‘What is Property’ in (2023) LQR 139 1 opened with the following:

“The question what constitutes property has bedevilled English doctrine and jurisprudence from time immemorial. Entire volumes and innumerable articles have been devoted to the nature of property and it is not only students who have professed themselves baffled by the arcane mysteries of the subject.”

Our task in this case is not as daunting as that might make it sound, because we are not concerned to define what property is, or how to determine it, for all areas of the law. A definition of property serves different purposes in different contexts. As Lord Porter said in Nokes v Doncaster Amalgamated Colliers Ltd [1940] AC 1014 at 1051:

“In truth the word "property" is not a term of art but takes its meaning from its context and from its collocation in the document or Act of Parliament in which it is found and from the mischief with which that Act or document is intended to deal.”

It does not follow, therefore, that for a thing to constitute property for the purposes of a criminal offence it should necessarily do so for the purposes of private rights in civil law. Even within the criminal law, it is necessary to focus on the particular offence in question, because what amounts to property is not defined in the same way for all offences. We are only concerned with the definition in section 4 of the Theft Act, a definition for the purposes of offences under that Act in the criminal law. Other definitions apply in other areas of the criminal law. In the Criminal Damage Act 1971, for example, as originally enacted, property was defined as “property of a tangible nature, whether real or personal….”. The restriction of that offence to tangible property was narrower than the Theft Act definition, which might have caused difficulty in relation to damaging computers. However a broad approach to what constituted causing damage, namely impairing the value or usefulness of the tangible property, enabled the court to treat computer hacking as criminal damage to the magnetic particles on a disc despite the absence of any tangible damage to the disc (R v Whitely (1991) 93 Cr App R 25), a decision effectively reversed by a new s.10(5) introduced alongside the introduction of the offences now in the Computer Misuse Act 1990. Another example of a different definition of property in the criminal law is to be found in the Proceeds of Crime Act 2002, section 84 of which defines property as “all property wherever situated and includes (a) money (b) all forms of real or personal property (c) things in action and other intangible or incorporeal property.” Although at one stage relied on by the prosecution in this case, the s. 84 definition, including the concept of “incorporeal property” which has echoes of hereditaments, is of no direct application because it is a definition for the purposes of Part 2 of POCA, dealing with confiscation, not the money laundering provisions in Part 7. Part 2 also now makes specific provision for crypto assets in s. 67ZA and following.

We emphasise the particular focus of the inquiry in this case because there is a danger in treating pronouncements about property in other contexts as determinative or even helpful. The Judge in this case, and the parties, treated the starting point as being what Lord Wilberforce said in NPB v Ainsworth, and of actual or potential relevance the UK Taskforce and Law Commission Reports on cryptoassets and digital assets which we consider below. However those were all concerned with personal property rights for the purposes of their recognition and enforcement as private law rights. In our view both the starting point and the central focus of the inquiry in this case ought to be the words of s. 4 of the Theft Act in the context of a statute seeking to criminalise the dishonest taking of things, and the cases and other materials which address it in that criminal context.

There is no conceptual difficulty in something constituting property within the meaning of the definition in s. 4 of the Theft Act but not constituting property over which there are enforceable private law rights. Whilst there are aspects of the law for which a divergence between the criminal and civil law is inherently undesirable (for example the meaning of dishonesty; see Ivey v Genting Casinos (UK) Ltd (t/a Crockfords Club) [2017] UKSC 67 [2018] AC 391 at [57] and [63]), this is not one of them.

In this context the speech of Lord Steyn in R v Hinks [2001] 2 AC 241 is instructive. In that case the House of Lords was concerned with whether a transfer of property could amount to appropriation under the Theft Act where it involved what was in private law a lawful transfer under which the transferee acquired an indefeasible proprietary right. Counsel for the appellant identified a number of hypothetical examples which illustrated how the criminal law would be in conflict with the civil law if such an interpretation were to be accorded to “appropriates” in the Theft Act, and argued that there should be no distinction between private law property rights and the application of the Theft Act. In rejecting that argument, Lord Steyn, with whom Lords Slynn and Jauncey agreed, said at pp. 252C-253B:

“My Lords, at first glance these are rather telling examples….

If the law is restated by adopting a narrower definition of appropriation, the outcome is likely to place beyond the reach of the criminal law dishonest persons who should be found guilty of theft. The suggested revisions would unwarrantably restrict the scope of the law of theft and complicate the fair and effective prosecution of theft….

Counsel for the appellant further pointed out that the law as stated in Lawrence [1972] AC 626 and Gomez [1993] AC 442 creates a tension between the civil and the criminal law. In other words, conduct which is not wrongful in a civil law sense may constitute the crime of theft. Undoubtedly, this is so. The question whether the civil claim to title by a convicted thief, who committed no civil wrong, may be defeated by the principle that nobody may benefit from his own civil or criminal wrong does not arise for decision. Nevertheless there is a more general point, namely that the interaction between criminal law and civil law can cause problems: compare J Beatson and A P Simester, "Stealing One's Own Property" (1999) 115 LQR372. The purposes of the civil law and the criminal law are somewhat different. In theory the two systems should be in perfect harmony. In a practical world there will sometimes be some disharmony between the two systems. In any event, it would be wrong to assume on a priori grounds that the criminal law rather than the civil law is defective. Given the jury's conclusions, one is entitled to observe that the appellant's conduct should constitute theft, the only available charge. The tension between the civil and the criminal law is therefore not in my view a factor which justifies a departure from the law as stated in Lawrence and Gomez.Moreover, these decisions of the House have a marked beneficial consequence.While in some contexts of the law of theft a judge cannot avoid explaining civil law concepts to a jury (e.g. in respect of section 2(i)(a)), the decisions of the House of Lords eliminate the need for such explanations in respect of appropriation. That is a great advantage in an overly complex corner of the law.” (my emphasis)

Another example of where the criminal law departs from the civil law in its treatment of property for the purposes of the Theft Act is afforded by the position in relation to illegally held drugs. It was confirmed in R v Smith (Michaael Andrew) [2011] EWCA Crim 66 that illegally held Class A drugs are property within the meaning of the Theft Act and are capable of being stolen. A theft or robbery amongst rival drug gangs can be indicted as such, because the criminal law is concerned with the public order consequences of preventing such behaviour, notwithstanding that it would be contrary to public policy to recognise any property rights for the purposes of civil enforcement between drug dealers. As Lord Judge CJ put it:

“In Smith’s Law of Theft, 9th edn (2007), p.80, it is suggested that “public policy which prevents the wrongdoer from enforcing a property right should have no application to criminal proceedings brought in the name of the Crown. The criminal law is concerned with keeping the Queen’s peace, not vindicating individual property rights.” That observation articulates the principle to be applied in the present appeal.”

Moreover section 5 of the Act qualifies the nature of property which may be the subject matter of theft in that it must be property “belonging to another” in the sense there defined. Whilst some aspects of that definition undoubtedly depend upon the civil law as to proprietary interests in property, they do not all do so. In particular property can belong to another when it is in the control of that other, and control need not connote any private law proprietary interest. The same is true of property in the possession of another. Possession and control in section 5 are factual concepts, and not qualified by or dependent upon any legal right to possess or control. They do not depend upon such possession or control being lawful as a matter of civil law: see R v Woodman [1974] QB 754 at 758D-E, R v Turner (No 2) [1971] 1 WLR 901 at 904, R v Kelly [1999] QB 621 at 631E-G.

The fact that civil law concepts do not exclusively govern whose property can be stolen for the purposes of s. 5 supports the view that it does not do so for the purposes of defining what can constitute property capable of being stolen for the purposes of s. 4.

Further, the last consideration mentioned in the speech of Lord Steyn quoted above, that of avoiding complexity for juries, is also here relevant. The parties have argued the issue with which we are concerned, before the Judge and before us, on the basis that it is a question of law for the court whether the gold pieces constitute property, not a question of law for the court as to whether they are capable of amounting to property as a factual question to be left to the jury. We assume for the purposes of this appeal that that is the correct approach. Nevertheless it is not difficult to conceive of circumstances in which it would be a matter for a jury to decide disputed issues of fact and/or make evaluative assessments which were relevant to determination of property rights in civil law, if that were the determinative question. It is obviously desirable that the criteria to be applied in determining whether something is or is not property for the purposes of s. 4 is framed, so far as possible, in terms which do not require difficult issues of the application of civil law principles to be left to the jury to determine.

It is for all these reasons that anything in the contractual documents between Jagex and the players, or in the civil law more generally, which would preclude the player having any enforceable private law personal property rights in the gold pieces, is not determinative as to whether they are property for the purposes of the definitions in the Theft Act.

With that in mind we will examine first what assistance is to be found in the authorities and other materials about property in the criminal context of the Theft Act.

The starting point is the language of section 4. It is an inclusive not exhaustive definition. It is in wide terms so as to be capable of applying to anything intangible provided it can properly be described as property. As s. 1(1) makes clear in terms, it is directed to criminalising something which someone “steals”. It is aimed at property in the sense of a thing which someone can steal. The expansive nature of the definition and the criminal context suggests as a starting point that property should be construed as capable of applying to any thing which can as a matter of normal use of language be described as capable of being stolen, unless there are good reasons why such a thing should be excepted.

However, not all things which can colloquially be described as capable of being stolen constitute property within the meaning of the Theft Act. Intellectual property is protected by the Copyright Designs and Patents Act 1988 (the ‘CDPA’) and is largely designated as a “property right” under s. 1 (copyright) or s. 213 (design right). The rights are protected by statutorily defined acts of infringement, and the criminality of such infringement of copyright, for example, is defined by offences created by s. 107 of the CDPA. We doubt whether such intellectual property is capable of being property which is stolen contrary to the Theft Act, although it is not necessary to express a concluded view on the question.

What is clear is that it is widely regarded as settled that “property” in section 4 of the Theft Act does not extend to “pure information”, including confidential information, on the basis of the decision in Oxford v Moss (1979) 68 Cr App R 182. In that case the defendant was a student who had stolen an examination paper prior to an exam, and returned it after he had read its contents. He was charged with theft. The magistrate dismissed the information on the grounds there had been no appropriation of “property”. The prosecution case was not that the exam paper itself was the relevant property, because there could not be shown an intention permanently to deprive the owner of it (although see (1979) CLR 119 for an ingenious argument that it could have been). Rather it was argued that the questions to be set (in which there was no copyright) constituted the relevant property as confidential information, relying on civil decisions affirming rights and remedies for infringement of trade and matrimonial secrets. The Divisional Court dismissed the appeal by way of case stated, giving brief ex tempore judgments which cast little light on the rationale for the decision.

The decision, which is not binding on this court, is the subject of an interesting discussion in Smith, Hogan and Ormerod’s Criminal Law 17^th edn at 18.3.2.7, which identifies a number of academic writings on the subject, as well as the fact that the Law Commission proposed legislating to criminalise non-consensual use or disclosure of another’s trade secrets in 1997. In Taylor & O’Floinn’s article cited above, Oxford v Moss is explained on a number of bases: the information in the exam questions is not rivalrous; one person’s knowledge of it does not diminish someone else’s knowledge of it; information as such is inalienable and unassignable; a fact cannot be “unknown”; the question of who owns a piece of information may be nebulous; and there are concerns about the use of the criminal law or property law to regulate dissemination of information.

In our view the justification for the decision, and the principle it stands for, lies in the fact that what is meant by “pure information” is simply knowledge; and knowledge cannot qualify as property which can be stolen for two reasons. First, it exists simply in a person’s head and independently of anything representing or recording it on any form of medium (although it may of course be so recorded, in which case the tangible medium is property and may be stolen, as the exam paper in Oxford v Moss would have been had there been an intention permanently to deprive). If a person knows what day of the week it is, that knowledge could not appositely be described as their property; and no more could their accumulated body of knowledge acquired over time, whether generally or in a specific field of skill or endeavour. The fact that such knowledge sometimes has a quality of secrecy or confidentiality cannot make it property, as cogently explained by Latham CJ in the High Court of Australia in United Aircraft Corporation v Federal Commissioner of Taxation (1943) 68 CLR 525, 534-5:

“[k]nowledge is valuable, but knowledge is neither real nor personal property. A man with a richly stored mind is not for that reason a man of property. Authorities which relate to property in compositions, [etc], belong to the law of copyright and have no bearing upon the question whether knowledge or information, as such, is property. It is only in a loose metaphorical sense that any knowledge as such can be said to be property. Either all knowledge is property, so that the teaching of, for example, mathematics, involves a transfer of property, or only some knowledge is property. If only some knowledge is property then it must be possible to state a criterion which will distinguish between that knowledge which is property and that knowledge which is not property. The only criterion which has been suggested is the secrecy of the knowledge — it is said that the fact that knowledge is secret in some way creates a proprietary right in that knowledge. I confess myself completely unable to appreciate this proposition as a legal statement. It is obvious that a monopoly of knowledge may be valuable, whether it be knowledge of a place where a person has discovered gold or knowledge of a method or process of making a machine or a chemical product, or of a means of deciphering cryptograms. But is such property knowledge only so long as it is secret? Does it cease to be property when it is communicated to one other person or to two other persons or to two hundred other persons? The value of secret knowledge as such depends upon ability to keep it secret and to use it and the possibility of persuading other people to pay for being let into the secret. These facts, however, do not show that the knowledge is property in any legal sense.”

Secondly, knowledge is not something which can be stolen because the transfer of knowledge from A to B does not deprive A of that knowledge or A’s ability to use it.

In Attorney General of Hong Kong v Nai-Keung [1987] 1 WLR 1339 the Privy Council was concerned with an appeal from Hong Kong in respect of a conviction for theft under the Theft Ordinance 1970, which was in materially identical terms to the Theft Act 1968, including its definition of property. The export of textiles from Hong Kong was prohibited except under licence, and The Department of Trade and Industry operated an export quota system in respect of such exports. Export quotas were registered with the department and were transferable for value on a temporary or permanent basis. The defendant was a director and minority shareholder in a company to whom such export quota licence had been granted. Without the knowledge of his co-director, who was the majority shareholder, the defendant sold a large quantity of the company's quotas permanently transferring them to a textile company which had as its proprietor the defendant's co-director in a recently incorporated textile exporting company. The defendant was charged with theft of the textile export quotas, the prosecution case being that that he had acted dishonestly by selling the quotas at a gross undervalue. The defendant was convicted, but the Court of Appeal of Hong Kong allowed his appeal and quashed his conviction holding that being authorised to sell quotas on behalf of the company he had not dishonestly appropriated property belonging to the company. On the Attorney-General's appeal the Judicial Committee, allowing the appeal, held that export quotas were capable of being stolen since, although not things in action, they did come within the words “other intangible property” in the definition of “property” in section 5(1) of the Theft Ordinance. Lord Bridge, giving the Opinion of the Board, said at 1342B-C:

“In their Lordships' opinion the definition of "property" in the English Theft Act 1968 and the Hong Kong Theft Ordinance was intended to have the widest ambit. It would be strange indeed if something which is freely bought and sold and which may clearly be the subject of dishonest dealing which deprives the owner of the benefit it confers were not capable of being stolen. Their Lordships have no hesitation in concluding that export quotas in Hong Kong although not "things in action" are a form of "other intangible property."

We take two points of importance from this passage. The first is that the definition of property in s. 4 of the Theft Act is to be interpreted as having the widest ambit. The second is that the indicia of what constitutes property for these purposes were treated as being that the thing was something (1) which is freely bought and sold and (2) which may clearly be the subject of dishonest dealing which deprives the owner of the benefit it confers.

Gold pieces may clearly be the subject of dishonest dealing which deprives the game player of the benefit they confer. They are freely bought and sold, both within the rules of the game for other game items, and outside the rules of the game for real money or money’s worth. Mr Eissa sought to distinguish the case on the basis that gold pieces were not “freely” bought and sold because the buying and selling of gold pieces outside the game was not permitted under the terms of the T&Cs and Rules. However, the fact that transfer is prohibited does not prevent a thing being property. Class A drugs cannot lawfully be bought or sold (with limited exceptions), but as Mr Eissa accepted, illegally held Class A drugs are property within the meaning of the Theft Act and are capable of being stolen. The same is true if the restriction on transfer is contractual, rather than criminal. If A hires out his car to B on terms that it is only for B’s personal use, the car remains A’s property. If B dishonestly sells the car he is guilty of theft irrespective of the contractual prohibition on sale. It is the intrinsic nature of a car which makes it something which is “freely” bought and sold in practice within the meaning of the first of the two indicia identified in Nai-Keung despite any contractual prohibition on sale. The same is true of gold pieces.

There are three further criminal cases decided by foreign courts which deserve mention.

Taking them in chronological order the first is the 2012 decision of the Dutch Supreme Court in HR, 31 januari 2012, NJ 2012, 536 m.nt. Keijzer (Neth.), upon which the prosecution relied. It was not addressed by the Judge because it had not been brought to his attention and has been relied on for the first time on appeal. In that case the appellant had been convicted of theft of a virtual amulet and mask in the Runescape game contrary to Article 310 of the Dutch Criminal Code which applies to theft of “goed”, which may be translated as property. He had, with a co-defendant, physically attacked the 13 year old victim and forced him by means of actual and threatened violence to transfer the virtual items from his own Runescape account to the appellant’s account. The Supreme Court held that the virtual mask and amulet were “goed” and dismissed the appeal.

There is limited assistance to be derived from this decision, not only because it was concerned with a different criminal provision in a different language under a different system of law, but also because the Court was influenced by a previous Supreme Court decision in relation to theft of electricity which had held that the characteristics of individual existence were dispositive (see [25] and [47]).

Nevertheless it is of interest that the Court treated it as obvious that the mask and amulet belonged to the victim and were capable of unlawful appropriation (at [44]). It noted that the concept of “belonging to” in Article 310 was not the same as the civil law concept of property but included possession, and that therefore it was irrelevant that Jagex remained the owner of the virtual items (also at [44]). It was irrelevant that the mask and amulet “do not really exist, because they are virtual and immaterial in nature”. They had an independent existence and monetary value within and outside the game ([46]). This treatment of the mask and amulet as Runescape in-game items which can be appropriated is consistent with the criteria for “property” in the Theft Act expressed in Nai-Keung as something which is freely bought and sold and which may clearly be the subject of dishonest dealing which deprives the owner or possessor of the benefit it confers. It also provides a real world example of conduct outside the scope of computer hacking or computer manipulation in which the in-game items would be regarded colloquially as property which was stolen in a robbery. If the Respondent is right in this case, the gold pieces could not be the subject matter of an English charge of theft or robbery in similar factual circumstances to the Dutch case, which we would regard as a surprising and unsatisfactory situation.

The next case is the decision of the New Zealand Supreme Court in R v Dixon [2015] NZSC 147. The appellant worked in a bar in which a rugby player then on tour with the England squad for the 2011 World Cup had been captured on the CCTV leaving with a female customer who was not his wife. The appellant obtained the footage by getting a receptionist to compile it from several cameras and save it onto a desktop computer, from which the appellant transferred it to a USB stick. He tried to sell the footage to foreign media outlets, unsuccessfully, and then posted it on a video-sharing site. He was charged with accessing a computer system for a dishonest purpose contrary to s. 249(1) of the Crimes Act 1961, which depended upon the digital CCTV footage being “property” which he had obtained. Property was defined in the Crimes Act as “real and personal property, and any estate or interest in real or personal property, money, electricity, and any debt and any thing in action and any other right or interest.” The Court of Appeal had held that the digital files were “pure information” and so were not property. The Supreme Court reversed the decision and held that they were property.

At [25] Arnold J, giving the Supreme Court’s reasons, said that the meaning of the word “property” varies with context, citing with approval a passage by Gummow and Hayne JJ in Kenyon v Spry [2008] HCA 56 at [89] that the term “property” is not a term of art with one specific and precise meaning, and that it is always necessary to pay close attention to any statutory context in which the term is used. We would agree.

The Court’s essential reasoning was summarised at [25]. It was that the files were property because they could be identified, had a value and were capable of being transferred. They also had a physical presence, albeit one which could not be detected by means of the unaided senses, having a “material presence” on any medium on which the digital files were stored (see [39]). Whether classified as tangible or intangible, the files were property for the purposes of s. 249(1)(a).

Despite the ambivalence of the tangible/intangible reference, the Court appears to have treated the files as tangible property; it did not give any other reasons for distinguishing them from “pure information” which in accordance with the “orthodox view” it assumed could not be property. The decision has been the subject of academic criticism, especially in its reasoning in treating digital information as having the qualities of tangible property, in which we see some force (see Low & Llewellyn (2016) 132 LQR 394 and D Harvey [2017] NZCLR 31). The Court’s reasoning also relied on the provision being in a statute dealing with computers and concluded that Parliament must have had stored data in mind in relation to the section and those surrounding it (see [35]). For these reasons we have not found the decision to be of any assistance.

Finally there is the recent decision of the Supreme Court of Appeal of Victoria in Yeates (a pseudonym) v The King [2025] VSCA 288 delivered on 26 November 2025 after we heard the appeal. The defendant was charged with theft of Bitcoin contrary to s. 72 Crimes Act 1958, which is in identical terms to s. 1(1) of the Theft Act 1968. The definition of property in s. 71 of the Crimes Act is identical to the definition in section 4 of the Theft Act. The Court held that Bitcoin is property. Its essential reasoning was as follows. First, Bitcoin is not “mere information” which in accordance with the orthodox view established in Oxford v Moss could not be intangible property for the purposes of the Theft Act. The ‘mere information’ principle applied to something which was no more than knowledge, but Bitcoin is unlike mere knowledge in that it is rivalrous and exists independently of the code representing it. Secondly it fulfils the first, second and fourth elements of the Ainsworth test, the third not being part of Australian Law. It is therefore intangible property, and there are no public policy reasons why cryptocurrencies should not be treated in law as property. It was not necessary to decide whether Bitcoin also constituted a chose in action.

There are of course a number of differences between Bitcoin and gold pieces in Runescape which mean that the reasoning in this case cannot simply be read across to the current issue. Nevertheless we have found the analysis in this case helpful both in its treatment of the pure information principle, on which we have drawn in what we have said above; and in its emphasis on the need to distinguish Bitcoin as an asset from the code which represents it. We have not, however, adopted the same approach of assuming that for the purposes of the Theft Act the relevant principles are those applicable to private civil law property rights.

Lastly, in the criminal context, we should mention that there are a number of sui generis exceptions to what constitutes property, which have been carved out for social and/or historical reasons. These include the specific exceptions in section 4 of the Theft Act; and, at common law, corpses or body parts not preserved for medical use (see R v Kelly [1999] QB 621). Those sui generis exceptions have no bearing on the issue in this case.