Appropriation

Question 1

What is the definition based on?

Answer 1

CLRC proposal

Question 2

Where is appropriation defined

Answer 2

Theft Act, s 3: (1)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.

Question 3

Despite the relative clarity of s 3(1), the meaning of appropriation has generated considerable dispute. How has the court resolved these disputes?

Answer 3

In resolving these disputes, the courts have generally preferred to interpret the term broadly.

Question 4

What is s 3(2)

Answer 4

S 3(2) protects the bona fide purchaser. If D is a bona fide purchaser of a car that he thinks X owns, but it does not actually belong to X. D’s assumption of any rights will not amount to theft of the vehicle. Although, protection from theft, his title is still defective so may commit other offences e.g if sells the car on may be fraud.

Question 5

When will there be appropriation?

Answer 5

S 3(1) is clear that assuming the rights of an owner will amount to appropriation. The most obvious case will be where D takes V’s property and treats it as his own.

Question 6

An assumption of what rights

Answer 6

The case of Morris confirms that the assumption of any one property right will be sufficient to find an appropriation.

Question 7

Facts of Morris

Answer 7

D took items from a supermarket shelf, removed the price tags and replaced them with labels from cheaper goods. The incorrectly priced goods were then presented at the check-out. HL concludes that appropriation took place at the point where D infringed ‘a’ right of V (here, the right to price assumed at the point of swapping the labels): it was not necessary to show that D did the act by which he intended to take the goods (the purchase) thereby assuming all the rights over them.

Question 8

How has Morris been justified?

Answer 8

Justified by reference to the words ‘a right to it’ in s.3(1) (theft by keeping) – not the intended meaning. The justification consisted in the use of the singular right to it. That is not how it was meant to be interpreted. Lord Roskill treats the phrase ‘any assumption of the rights’ treating as an assumption of any of the rights.
Theft occurs earlier, acts that are merely preparatory seen as full theft. It has been argued that Morris represents an incorrect interpretation of the law and appropriation should only be found where D has assumed all of the rights of the owner.

Question 9

What happens if theres one or more acts of appropriation?

Answer 9

Under Morris, what happens if D does not intend permanently to deprive V of the property by the first act that constitutes appropriation? Lord Roskill accepted that ‘one or more acts’ might be involved ( a continuing appropriation) – hence the intent to deprive by the act of purchase is sufficient.

Question 10

How is appropriation best analysed?

Answer 10

the act of appropriation is best analysed as a single and instantaneous event. However, if we follow the logic of Morris, we could say that appropriation starts and finished at the moment that D touches the bag he is going to steal, therefore the theft would conclude before D has ran away with it. This issue can be important where there is uncertainty as to territorial jurisdiction.

Question 11

Atakpu

Answer 11

D hired a car in Germany and drove to the UK intending to sell it when he arrived. It was held that there had been theft of the car before D got to England. He could not be prosecuted for the crime of theft, it had happened outside the jurisdiction.
Court held the AR must have an end point.

Question 12

Which case confirmed Morris

Answer 12

Gomez: Lord Roskill was undoubtedly right when he said that the assumption by the defendant of any of the rights of an owner could amount to an appropriation within the meaning of s 3(1), and that the removal of an article from the shelf and the changing of the price label on it constituted the assumption of one of the rights of the owner and hence an appropriation within the meaning of the subsection.”

Question 13

Can D appropriate by omission?

Answer 13

Following Morris, it is clear that D can’t appropriate certain property rights by omission. If D has taken the property accidentally, D will be not assumed to have appropriated it if she has not treated it as her own or not made the decision to keep it.

Question 14

Appropriation and consent what does the TA say?

Answer 14

The wording of the TA does not expressly limit the offence to theft which involves non-consensual taking.

Question 15

Case that consent or non-consent is irrelevant

Answer 15

Lawrence: L, a taxi-driver, picked up V, an Italian, and untruthfully indicated that the money V offered by way of fare wasinsufficient. L took additional money from the wallet offered by V and was convicted of stealing it rather than obtaining it by deception, which would have been the more natural offence at the time (now fraud).
Although the facts ‘fell far short’ of establishing consent, the HL pointed out that s.1 did not explicitly require that an appropriation must be without consent….

Question 16

What did Viscount hold in Lawerence

Answer 16

Belief or the absence of belief that the owner had with such knowledge consented to the appropriation is relevant to the issue of dishonesty, not to the question whether or not there has been an appropriation.

Question 17

What view was taken in Morris about consent

Answer 17

In the context of section 3(1), the concept of appropriation in my view involves not an act expressly or impliedly authorised by the owner but an act by way of adverse interference with or usurpation of those rights.”

Question 18

Which case addressed the issue of consent

Answer 18

HL in Gomez D, an assistant manager in electrical store, told the manager that (stolen) cheques provided by his friend were “as good as cash”. The manager authorised goods to the value of the cheques to be supplied in exchange for them. D’s theft conviction quashed by CA. Crown appealed to HL who restored D’s conviction

Question 19

What was decided in Gomez

Answer 19

Lord Kinkel held that The decision in Lawrence was a clear decision … which stood for 12 years when doubt was thrown upon it by obiter dicta in Morris. Lawrence must be regarded as authoritative and correct, and there is no question of it now being right to depart from it.”

Question 20

Was Lawerence a clear decision?

Answer 20

Was Gomez right in stating that Lawrence was a clear decision which stood for 12years before Morris? No, cases including Skipp, Meech and Eddy v Niman, applied the concept later identified in Morris. These cases must be now all wrong in light or Gomez, although only Skipp was directly overruled, together with the post Morris case of Fritschy.

Question 21

What happened in Skipp

Answer 21

Skipp: A dishonest haulage contractor picked up goods for delivery intending to steal them, but held not to have committed theft until he did something unauthorised, until he deviated from the route where he was meant to be going.

Question 22

Why did Lowry dissent?

Answer 22

“The ordinary and natural meaning of ‘appropriate’ is to take for oneself, or to treat as one’s own, property which belongs to someone else…. The act of appropriating property is a one‑sided act, done without the consent or authority of the owner. And, if the owner consents to transfer property to the offender or to a third party, the offender does not appropriate the property, even if the owner’s consent has been obtained by fraud.”

Question 23

What does Lord Wilkinson Brown argue

Answer 23

• Left with meaning devoid of any moral content. Lord Browne Wilkinson agrees with this. Lord Browne-Wilkinson: “For myself, therefore, I regard the word ‘appropriation’ in isolation as being an objective description of the act done irrespective of the mental state of either the owner or the accused. It is impossible to reconcile the decision in Lawrence … with the views expressed in Morris, which latter views in my judgment were incorrect.”

Question 24

What did Gomez say about deception

Answer 24

Gomez confirmed that D could, by deception, appropriate V’s property regardless of V’s consent. However, as D’s appropriation was still achieved through deception where D lied about the cheques, the question remained open as to whether D’s assumption of rights would still be an appropriation where V consents and there is no deception. The court in Gomez indicated that appropriation would be found even in the absence of deception, both through the examples they employed, as well as other cases they overruled, but this did not form the ration.

Question 25

Can appropriation we found despite a lack of deception?

Answer 25

Hinks, that provides where D assumes ownership of rights from V, this may be appropriation even where the property is consensually transferred from V with full title. Therefore, D may be liable for theft of property in criminal law, but entitled to keep that same property in civil law.

Question 26

What happened in Hinks

Answer 26

D befriended V, a man of limited intelligence, and regularly accompanied him to his building society. Over a six month period, the victim withdrew £60,000 which was deposited in D’s account, and he gave her a TV set. A consultant psychiatrist gave evidence that V was naïve and trusting, and did not know the value of his assets.
D appealed against her theft conviction on the basis that, contrary to the direction of the trial judge, an indefeasible gift of property could not amount to an appropriation.