Criminal Essay - Theft PDF

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Module Code: UJUTD3-30-1 Student Number: 16014211 Word Count: 1491 Haynes states that ‘Prior to the Theft Act, in Russel v Smith [1958] 1 QB 27, Lord Goddard stated Larceny was “a law which is exceedingly technical”. This is now equally true of the Theft Act.’ With reference to case law and academic...

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Module Code: UJUTD3-30-1

Student Number: 16014211

Word Count: 1491

Haynes states that ‘Prior to the Theft Act, in Russel v Smith [1958] 1 QB 27, Lord Goddard stated Larceny was “a law which is exceedingly technical”. This is now equally true of the Theft Act.’ With reference to case law and academic commentary, critically assess this statement.

There are areas within the criminal law system that could be labelled as difficult to interpret for a variety of reasons, there is an argument that Theft falls within this category. Prior to the Theft Act (TA) 19681, enforced to help codify the offence, the law was viewed as a problematic area. Lord Goddard stated Larceny was “a law which was exceedingly technical”2. This may seem odd when you consider the statutory definition, found in s.1.1 Larceny Act3, sounds simplistic and easy to follow with Haynes expressing the view that “the weight of a theft offence rested on the Actus Reus element, in particular a ‘taking’4.

Using recommendations made by the Criminal Law Revision Committee, the TA 1968 5 was drafted however, the inclusion of elements such as appropriation and dishonesty have further widened the scope of interpretation needed for this offence, seen in subsequent case law, thus leading to more problems and calls of reform.

To be convicted of Theft, defendants must satisfy five elements identified under s.1 TA6. However, there is an argument to be made that some carry more emphasis then others and in turn require significant interpretation. Appropriation has caused a range of issues because of 1 2 Russel v Smith [1958] 1 QB 27. 3 s.1.1 Larceny Act 1916 - A person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof. 4 T O Haynes, ‘Theft – A Simple Offence Overcomplicated: Part 1’, Criminal Law & Justice Weekly, 2013, 177(25), 425. 5 Theft Act 1968 6 s.1 Theft Act 1968 – A person is guilty if he dishonesty appropriates property belonging to another with the intention of permanently depriving the other of it.

Module Code: UJUTD3-30-1

Student Number: 16014211

Word Count: 1491

this. Lawrence7 held ‘“appropriation” was an assumption of any of an owner’s rights, taking place regardless whether owners consent’. This judgment was the first sign of the problematic nature of appropriation due to the effect which arose from the decision; consent is immaterial. The taxi driver had taken more than the fare was however he did it with the consent of the victim. This is clearly obtaining money by deception, but Lawrence8 was found guilty of theft. This means that a person could theoretically be charged with theft or deception based on the same facts which creates uncertainty within the criminal law. This may be in violation of Art. 7 ECHR9. Morris10 took a conflicting view of the correct interpretation for appropriation. It was held there must be an adverse interference or usurpation of an owner’s right and only “a” right need to be assumed as oppose to “all rights”11. This indicates a view that appropriation must be non-consensual and therefore Lawrence was wrongly decided. While Morris12 had its critics, it gave judges clarity, if only for a short period, on the correct interpretation of appropriation, cases including Skipp13 affirmed this decision. However, this was again overruled in Gomez14, where it was held the principles in Lawrence15 were correct with Lord Keith, sharing the view of Viscount Dilhorne, “Parliament by the omission of these words has relieved the prosecution of the burden of establishing that the taking was without the owner’s consent, and to read the subsection as if they were included is, in my opinion, wholly unwarranted”16. He goes on to discredit Lord Roskills’ obiter statement, meaning that

7 R v Lawrence [1972] AC 626 8 R v Lawrence [1972] AC 626 9 Article 7 European Convention of Human Rights 10 R v Morris [1984] AC 320 11 T O Haynes, ‘Theft – A Simple Offence Overcomplicated: Part 1’, Criminal Law & Justice Weekly, 2013, 177(25) 425 12 13 R v Skipp [1975] Crim. L.R 14 R v Gomez [1993] AC 442 15 R v Lawrence [1972] AC 626 16 R v Gomez [1993] AC 442

Module Code: UJUTD3-30-1

Student Number: 16014211

Word Count: 1491

obtaining either possession or control could amount to theft. Consent therefore was again irrelevant. This decision was met with divisive opinions for the academic world. S. Gardner believes the result should be applauded, arguing that this decision allows theft to lie where “the quality of dishonest conduct is not necessarily altered by the victim’s consent”17 meaning rogues who preyed on vulnerable people could be held criminal liable with guilt hinging on the question of dishonesty. Although morally correct, the effect that proceeded may not be legally sound. Does the weight of a theft charge now lie with dishonesty? Professor J.C. Smith, however, points to the decision of the majority not to refer to the Eighth Report of the CLRC stating that “Parliament, having received the CLRC’s clear exposition of their draft bill, enacted legislation identical in all material respects with it.”18 If this were true why would Lord Keith believe it “serves no useful purpose”19. Smith indicates that the “decision of the majority flatly contradicted the intention of Parliament”20. Smiths’ comments are supportive of the fact that appropriation is a complex and technical element which has caused problems and divided opinions across the legal profession. This fact, combined with the knowledge that Lawrence21 and Morris22, where the same legal issues arose, yielded contrasting interpretations of appropriation is further indication that a clear statutory definition needs to be implemented by Parliament. The next time that appropriation was considered was in Hinks23 where it was found that the principles of Gomez24 could be applied to not only property obtained by deception, but also to valid gifts. This had both positive and negative implications. The Court of Appeal had 17 S. Gardner, ‘Appropriation in Theft – The Last Word’ (1993) 109 LQR 194 18 J.C. Smith, ‘commentary to Gomez’ (1993) Crim LR 304 19 20 J.C. Smith, ‘commentary to Gomez’ (1993) Crim LR 304 21 R v Lawrence [1972] AC 626 22 R v Morris [1984] AC 320 23 R v Hinks [2000] 3 WLR 1590 24 R v Gomez [1993] AC 442

Module Code: UJUTD3-30-1

Student Number: 16014211

Word Count: 1491

previously heard conflicting cases concerned with the question; could a valid gift be appropriated with the absence of deception? Gallasso25 and Mazo26 held that validity of a gift prevented an appropriation while Hopkins and Kendrick27 contradicted this, holding the civil law position as irrelevant. Hinks28 resolved the conflict between these, holding that the only issue was one of dishonesty therefore, consequently, a valid gift could be appropriated. This leads us to the negative points of this judgement. The evident conflict between the criminal and civil law did not get resolved by the judges in Hinks29. These two areas of the justice system should not overlap but because of the technicality involved with theft, it was inevitable. This should have been highlighted by the Lords with a distinguishing statement given to resolve this. Another negative consequence would be the shift in emphasis placed on dishonesty. Dishonest appropriation was a concept which was acknowledged in Lawrence30, Morris31 and Hinks32. However, due to the scope of appropriation being extended again in Hinks33 it lost it’s significance, becoming a natural term. Dishonest appropriation had vanished to be replaced with dishonesty alone. Dishonesty, has a negative statutory definition found within s.2. TA34 gives limited exceptions of behaviour and whether they can be deemed dishonest. The driving force behind this was the CLRC’s belief that dishonesty was never intended to be the defining factor to a theft

25 R v Gallasso [1994] 98 Cr. App. R. 284 26 R v Mazo [1997] 2 Cr. App. R. 518 27 R v Hopkins, R v Kendrick [1997] 2 Cr. App. R. 524 28 R v Hinks [2000] 3 WLR 1590 29 R v Hinks [2000] 3 WLR 1590 30 R v Lawrence [1972] AC 626 31 R v Morris [1984] AC 320 32 R v Hinks [2000] 3 WLR 1590 33 R v Hinks [2000] 3 WLR 1590 34 S.2 Theft Act 1968

Module Code: UJUTD3-30-1

Student Number: 16014211

Word Count: 1491

charge, so a definition was deemed as not needed. However, the scope at which appropriation has been extended means this appears to be the case. Similar to appropriation, dishonesty has caused numerous problems and has needed constant evolution for correct interpretation. The case of Feely35 was the first to devise a test to adhere to. Here, it was held judges should not attempt to define dishonesty and that it was a question for the jury who should apply the current standards of ordinary decent people. While prima facie this appears correct and fair, it is the opposite. The problem with an objective test lies with the jury and their perception of what the current standards are. If a jury have differing views on this then the results are vary and change leading to inconsistency, therefore uncertainty. This again could be in violation of Art 7 ECHR36. Ghosh37 took the test a stage further by adding a second question. Now, not only does the jury have to believe the behaviour shown was dishonesty but emphasis also lies with the defendants’ mind-set. Did they believe they were acting dishonestly? This test has not simplified dishonesty it has increased the complexity. As well as holding the same criticisms to the test it came from, new ones also emerge. The shift of this from an objective test to a subjective one introduces a fresh problem. If the Ghosh38 test was to be applied literally then D should be acquitted in circumstances which they had a genuine belief their behaviour was in accordance with reasonable standards. This is highlighted by Professor E Griew in his hypothetical example of a visitor from a foreign country where public transport is free. Is he dishonest if he does this in our society where we pay to travel? Griew assumes that this is “an entirely unnecessary question”39 and there is merit to the assumption. If D has been judged objectively by the court as being dishonesty then he should be found guilty of this. The subjective component of his

35 R v Feely [1973] Q.B. 530 36 Article 7 European Convention of Human Rights 37 R v Ghosh [1982] 3 W.L.R. 110 38 R v Ghosh [1982] 3 W.L.R. 110 39 E. Griew, ‘Dishonesty: The Objections to Feely and Ghosh’ [1985] Crim LR 341

Module Code: UJUTD3-30-1

Student Number: 16014211

Word Count: 1491

mind-set simply increases the technicality of the offence and helps fuel the argument for a statutory definition to be devised. Lord Goddard40, when describing the Larceny Act41 still rings true when discussing the TA 196842. While elements such as property belonging to another and intention to permanently deprive are usually satisfied easily appropriation and dishonesty require a higher level of interpretation thanks to the complexity of them. The contrasting decisions in Lawrence43 and Morris44 is a clear indication of the technicality involved. The progression of appropriation in Gomez45 into dishonesty has serious implications for the offence of theft. There is now too much emphasis based on dishonesty and considering the test involved in deciding the guilt of a defendant has many drawbacks two being unjust and inconsistent results. The TA 1968 46 is again in need of reform so that Parliaments’ intention can be correctly portrayed, making it easier and less technical for judges and juries to use correctly.

Table of Cases 40 Russel v Smith [1958] 1 QB 27. 41 Larceny Act 1916 42 Theft Act 1968 43 R v Lawrence [1972] AC 626 44 R v Morris [1984] AC 320 45 R v Gomez [1993] AC 442 HOUSE OF LORDS 46 Theft Act 1968

Module Code: UJUTD3-30-1

Student Number: 16014211

Word Count: 1491

Russel v Smith [1958] 1 QB 27. R v Lawrence [1972] AC 626 R v Morris [1984] AC 320 R v Gomez [1993] AC 442 R v Skipp [1975] Crim. L.R R v Hinks [2000] 3 WLR 1590 R v Gallasso [1994] 98 Cr. App. R. 284 R v Mazo [1997] 2 Cr. App. R. 518 R v Hopkins, R v Kendrick [1997] 2 Cr. App. R. 524 R v Feely [1973] Q.B. 530 R v Ghosh [1982] 3 W.L.R. 110

Table of Legislation Larceny Act 1916 Theft Act 1968 International Treaties European Convention of Human Rights Books/Journals T O Haynes, ‘Theft – A Simple Offence Overcomplicated: Part 1’, Criminal Law & Justice Weekly, 2013, 177(25) 425-426 S. Gardner, ‘Appropriation in Theft – The Last Word’ (1993) 109 LQR 194 J.C. Smith, ‘commentary to Gomez’ (1993) Crim LR 304 Griew. E, ‘Dishonesty: The Objections to Feely and Ghosh’ [1985] Crim LR 341 Leigh, ‘Remarks on appropriation in the law of theft after Morris [1985] 48 MLR 197 Parsons. S, ‘Dishonest appropriation after Gomez and Hinks’ Journal of Criminal Law 2004, 68(6), 520-532 Loveless. J, ‘Criminal Law – Text, Cases, and Materials, 5th Edition, 2016, OUP Other sources Westlaw Lexisnexus HeinOnline...