In such circumstances, when the defendant does form the necessary mens rea later it will then be necessary to apply the TA 1968, s 3(1), which provides for a later assumption of the owner’s rights to amount to an appropriation:

'Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.' (Emphasis added.)

This section can be applied when the initial assumption of the rights of the owner does not amount to theft. It provides that a later assumption of a right, either by keeping it or by dealing with it, will be an appropriation. The theft will therefore take place when the defendant forms the mens rea, subject to the remaining elements also being present.