What are the difficulties with the application of ‘intention to permanently deprive’ under the Theft Act 1968? Does the law need to be made clearer? PDF

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What are the difficulties with the application of ‘intention to permanently deprive’ under the Theft Act 1968? Does the law need to be made clearer? - This is an essay which attempts to answer this question using both modern scholarship and case law. ...

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What are the difficulties with the application of ‘intention to permanently deprive’ under the Thef Act 1968? Does the law need to be made clearer?

Part of the mens rea for thef the need for an ‘intention to permanently deprive’ is something which appears simple on the surface but when one scratches beneath the surface is far more complicated. The case law in this area has revealed this much but it will be argued that as the case law has now brought state of relative clarity, indeed the current state of the law is one which jurors can understand, and therefore any legislative reform would be likely to bring new confusions and require the case law to interpret it anyway. A further issue however is though whether an intention to permanently deprive is the correct mens rea, need it be permanent? Perhaps as Glanville Williams suggests any deprivation, which is without consent or the belief in consent, should be sufficient to satisfy the mens rea requirement of the offence. An intention to permanently deprive, firstly doesn’t mean that D has to acquire the property in question all that is needed is that V is deprived of it. The common example given is taking someone else’s book on a train and throwing it out the window, this would satisfy for the intention to permanently deprive as it is clear that V isn’t going to be able to exercise control over the book again and this was what D intended, either directly or obliquely; Woolin. However, it is clear that there is no offence when D only intends to borrow. Even if D intends to borrow the property being aware of the fact that it is unlikely that he shall ever return it this would not satisfy for the intention to permanently deprive. I along with Glanville Williams believe that this is plainly a repugnant situation. Williams reasoning for this is that D could take something allowing everyone else to go to great expense and inconvenience, while D takes full advantage of the property in question, and returning it at a later date with no criminal sanction being able to be imposed. Saying one only intended to borrow it is an easy way out. Obviously there is recourse to the civil law however it can be argued that this wouldn’t go far enough in discouraging people from acting in such a way. As such it could be argued that dishonest taking would be enough. I would support this as surely if a jury was to believe that D was dishonest in taking the property that is enough to warrant conviction the intention to permanently deprive merely makes D more morally blameworthy as an it would be a greater interference with the autonomous property rights of the owner. Such an approach would serve to simplify the approach the law takes to thef, although it could be argued that it would mean many pointless trivial matters would now be within the ambit of the criminal law. This is justifiable as it would deal with the more serious problems, one also has to remember the fact that prosecutorial discretion still exists so it wouldn’t necessarily result that we have a law which is unnecessarily Draconian. The ‘intention to permanently deprive’ has been examined in the case law. For example in Lloyd where they took reels from a cinema where they were then copied and brought back, this was held not to have an intention to permanently deprive. I would argue that this is a repugnant result based on technicality, under the form of law proposed by Williams this would most likely be thef. It is clear that taking the films to copy them is dishonest and therefore this dishonest taking should be worthy of criminal censure in and of itself. Indeed it would appear to conflict with the decision of Velumyl where it was held that where D took bank notes spent them intending to replace them this was an intention to permanently deprive as the same bank notes were returned. Here the same result would have been reached without the requirement for intention to permanently deprive which is

incredibly artificial here. The owner of the money would not care whether the same notes were returned, they can be used in exactly the same way regardless of whether they were original or replacements. This appears to be a case of the tail wagging the dog, it was deemed that D was worthy of conviction meaning they had to invent an intention of permanently depriving. As such there is some confusion regarding the intention to permanently deprive but is questionable whether it should even be a necessary element of thef anyway. However, the statute gives examples of behaviour that might be deemed to constitute an intention of permanently depriving. S6 i) where D treats the thing as his to dispose of ii) where borrowing is for a period and in circumstances equivalent to outright taking so for example when D hands property back afer no longer useful iii) where D has possession of the property and parts with it for his own purposes under a condition as to its return which he may not be able to perform. Therefore, the statute gives us some guidance as to what would constitute an intention to permanently deprive. This isnt really the problem, the issue as far as I can see is whether it should be an element of thef anyway as dishonest taking interferes with the rights of the owner in the same way. From a final perspective in general the intention to permanently deprive is straight forward and the statute gives help to decide whether there is an intention to permanently deprive. The issue comes in that it appears to be an unnecessary element which as in Velumyl has led to bizarre and contorted reasoning in order to obtain the desired result. As such it is submitted that the approach advocated by Williams is more appropriate as long as it is paired with sensible prosecutorial practice....