Theft Essay Flashcards
Where is appropriation defined
S 1(3) TA is this too broad, is the interpretation too wide?
What did Morris say appropriation was?
HL concludes appropriation takes place where D assumes any of the rights of the owner
How was Morris justified
Morris has been justified by a reference to a right to in S 3(1) although arguably this was not the intended meaning of Parl
Who argues that the meaning of appropriation has been stretched and that the meaning given in Morris can not be that intended by Parl
Melissaris: argues that Morris represents the incorrect interpretation of the TA and appropriation can only accord on the assumption of all the rights of the owner.
Why is the stretched meaning of appropriation too wide?
It allows a wide range of offences from merely picking up an item in a supermarket to destroying
How highlights the issue of the wide range of offences
Shute: it will apply to merely preparatory acts which suggest little wrong doing such as touching an item without the requisite MR can technically be appropraition
What does the TA say about appropriation and consent
The TA does not expressly limit appropriation to cases of consensual taking however in light of Morris consent is irrelevant
Which case took the contrary view to Lawerence
Morris said that appropriation is an adverse interference or usurpation of the rights of the owner, it does not include appropriation by an act expressly or impliedly granted by the owner.
Where was the uncertainty resolved
Gomez reaffirmed the decision in Lawerence. Held that Lawerence was a clear decision that stood for 12 years so there was no need to doubt it now
Was Lawerence actually a clear decision?
Not a clear decision: Skipp, Meech, Eddy and Ninman all of which took the same approach as Morris: however only Skipp has been directly overruled.
Who dissented
Lord Lowry dissented: argued if there is consent even if obtained by deception there is no apparition otherwise the TA becomes too wide and includes offences that should be dealt with by deception.
What does appropriation and consent reflect
PP at the expense of LP
What is the effect of removing consent from appropriation
the effect of removing is that it removes any fault from AR leaving the MR to decide who is deserving of criminalisation.
What does Shute argue is the issue by removing the distinction between consent and non-consent
it creates issues of inappropriate and unfair labelling
Who argues removing consent is not actually that problematic
Gardner: argues that the overlap between this and deception offences is unproblematic because it protects vulnerable V where deception may be difficult to prove
Why is Gardner’s argument less persuasive now
Because the refrom of the Fraud Act has removed the need to prove fault
Where is there a problem as D can appropriate with full civil title
A problem where the theft even though there was no breach in civil law and no property rights have been infringed.
Case for consent and full civil title
Hinks: D dishonestly took advantage of a vulnerable person despite the gifts being transferred with full civil title and being valid at civil law
What is the argument for allowing appropriation with full civil title
Bogg and Stanton Ife: argues that the inconsistency between civil and criminal law is unproblematic. Criminal law should go beyond the civil law to protect against dishonest appropriation more generally
What is the view of the majority of academics
The majority view is that Hinks is incorrect. Sinister and Sullivan argue that since theft is designed to protect property rights it is inherently dependent on the civil law, therefore the wife view has lost sight of the mischief that theft is aiming to solve
What is the mischief of theft
violation of rights beyond mere interference can justify the use of the criminal law
What else does Sinister argue
The cart is now in front of the horse.
Is belonging to another too wide?
We need to protect V, difficult to prove he had complete possession therefore the need but has lead to cases where arguably overstretched
Which case has shown that belonging to another has probably been over stretched
Turner No 2
Dishonest involves what
a judgement about D’s state of mind and about honest standards of behaviour combing the two elements has been problematic and has attracted much criticism
What are the two main issues with dishonesty
What is dishonest has been left to the jury and the definition of dishonesty has been left undefined- have we left too much discretion to the jury
Why are the issues with dishonesty so problematic
dishonesty arguably lies at the heart of theft to distinguish between those deserving of criminal liability and those who are not
What is the first limb of the Ghosh test
Would the ordinary and honest person thin that D conduct was dishonest
What is the issue with the first limb of Ghosh
it leaves the jury to identify a common standard of a reasonable person without guidance
What does Griew argue about the first limb
the test using the jury creates inconsistency and lack of objectifyivity which results in longer more complicated trials, wha is more the test identifies a common standard when in fact there is no such thing, society is vert diverse and the standards will vary over time therefore there is no universal standard
What is the second limb of Ghosh
did D realise he was dishonest by those standards
Why is the second limb good
it protects people who genuinely did not know what they ere doing was wrong e.g. the foreigner who does not have to pay for transport at home and fails to pay in the UK
Main argument against the second limb
Robin Hood effect: A robin who believes that it is ok to steal from the poor and give to the rich but realises that people will think this is dishonest is guilty, whereas the same person who does so without an awareness of what the reasonable person would think and those common standards is not dishonest. This seems to be a moral stance, should the law be concerned with morals
Why did Ivey critics the Robin effect
a test where those who are less able to conform to the standards of society are less likely to be held criminally responsible for their actions.
What is the Ivey test
a two stage test rains which is part of an objective and part subjective. 1) ascertain D’s state of mind to his knowledge or belief of the facts (not his appreciation of the honest standard like Ghosh) 2) apply the standards
Argably Ivey leaves out some cases that should be covered
Hayes: where D honestly believed that his conduct was honest given the accepted practices of his colleagues
Which case indicates that the courts will chose to follow Ivey despite not Ghosh not being formally overruled in a criminal case
Pabon (attached) a pre-Ivey trial which got to the CA last month (ie post-Ivey). At para 23 there is a notable dictum that the Ivey test would now be applied and that therefore Pabon had been given the ‘benefit’ of Ghosh limb (ii) to which he would not in future be entitled. This may be taken to suggest that the CA will simply proceed on the basis of acceptance that Ivey is to be applied, and Ghosh will fall out of use without formal overruling.
What is another indication that Ivey might be followed without formal overruling
Crown Court Compendium: The test [in Ivey] unifies the law in relation to dishonesty in criminal and civil contexts. Within crime it will apply to any offence requiring proof of dishonesty
However, where have academics identified that there might be possible grounds for appeal
Fraud Act 2006 s.2 where D uses a deception to get property to which he is, or believes himself to be, entitled. As there is no ‘claim of right’ provision in the Fraud Act, the question is one for the jury, and arguably D is more at risk of conviction under Ivey. The jury may think he was dishonest in using deception to get what he wanted even if he was/thought he was entitled to it. Ghosh limb (ii) allowed D a better chance to win this argument, if he genuinely thought that what he did would be acceptable to ordinary decent people.
Practitioner favour for Ivey
M Galli: welcomes fro practitioners but not those looking to rely upon a distorted test for determine dishonesty in order to circumvent the purpose of the criminal law
Academic opinion in favour of Ivey
Jackson: sensible rationalisation of the test, a harmonisation of the civil and criminal which reflects the approach is other areas of criminal law and should be the preferred approach
Why is Ivey still problematic
it retains the jury standard for dishonesty
