Theft Evaluation

Question 1

Theft definition

Answer 1

“Dishonestly appropriates property belonging to another with the intention to permanenty depriving the other of it” under s.1 Theft Act 1968.

Question 2

Elements - actus reus

Answer 2

Appropriation
Property
Belonging to another

Question 3

Elements - mens rea

Answer 3

Dishonesty
Intention to permanently deprive

Question 4

Significance

Answer 4

Most effective legal draftings, post war, having stayed in tact for more than 50 years.
Simplified and codified law on property offences.

Question 5

Law Commission Report 2002 and Professor Griew’s article ‘dishonesty’

Answer 5

Arguments
Defined as an Act of Parliament this means judges must interpret the wording of this technical law.
Can result in convictions or aquitals based on technicalities rather than what is regarded as fair.

Question 6

Appropriation

Answer 6

Appropriation is physically taking an object.
Assuming some of all of their rights when no one else has permission (bundle of rights) R v Morris.

Appropriation with consent of victim.
An act may be an appropriation notwithstanding that it is done with the consent of the owner Lawrence v MPC as followed in R v Gomez.
Theft can even occur when as a gift as in R v Hinks when money given as a gift but appropriated from a vulnerable person.

Question 7

Critiques

Answer 7

Wide interpretation - D only has to assume one right. Janet Loveless said “appropriation as defined has more or less vanished from sight. Further Professor Smith mentions appropriation can be ‘commited by anyone doing anything to property belonging to another’. Easy to prove and unfair

Theft of gifts as in Hinks has conflict with criminal and civil law. Lord Hobhouse stated in civil law as soon as owner transfers gift to the donee it becomes property of the donee. This is conflicting. In this particular case an advantage as protects vulnerable people of age and disability.

Occuring at ‘one point in time’ has created inconsistency and confusion. Atakpu is prime example. Could follow as in robbery (Hale Lockley) where it is rather a continuing act.

Question 8

Property

Answer 8

Property includes money and all other property, real or personal, including things in action and other intangible property.

A thing in action does not exsist physically but provudes legally enforceable rights. Oxford v Moss unopened exam questions are information not property.

Things that cannot be stolen are set out in s.4(3) and s.4(4) including wild animals, fruit and flowers unless picked for the purpose of selling.

Electricity is a seperate defence of dishonesty under s.11 TA

The human body cannot normally be stolen but in R v Lindsay and Kelly body parts were property as ‘character and value’ had changed.

Question 9

Critiques

Answer 9

+ Detailed rules on the word ‘property’ yet some confusion on what cannot be stolen such as for sale and picking. Similarly, wild animals cannot be stolen as considered poaching.

Information not being stolen (Oxford v Moss) does not cause problems as covered under copyright offences.

Ignored civil law as body parts not being property. This means it is illegal to sell them. However, ignored in R v Kelly and Lindsay ignored to secure a conviction.

Question 10

Belonging to another

Answer 10

A person can be liable for stealing their own property R v Turner (No.2).
E.g. R v Marshall, Coombes and Eren where despite passengers willingly giving their tickets they belonged to the London Underground.
S.5(3) shows obligation to use in a particular way as in Hall.
S.5(4) covers mistake as belonging to the original owner. A refusal to return upon realising becomes deliberate theft (AGs Ref (No.1 of 1983))

Question 11

Critiques

Answer 11

Ambiguities and challenges in determining ownership as in Dyke and Munro when defendants released on technicality.

In theory being able to steal your own property is unfair but in R v Turner (No.2) it can be justified.
Money being obtained by mistake seems justifiable (AGs Ref (No.1 of 1983)). However in Gilks gap in the law as gambling contracts are not legally enforceable means D not required to pay back money from mistake.

Question 12

Dishonesty

Answer 12

Does not Define but examples in section 2
Belief of a right to deprive
Belief of consent of the owner
Belief of not being able to find the owner by reasonable steps

Common-law test was in Ghosh honest dishonest by reasonable person and they realise it was dishonest.
Another test of Ivey is used with a joy decide if they had a reasonable knowledge or belief as to the facts and if dishonest by the standards of ordinary reasonable person.
These comments are obiter dicta so only persuasive.
Barton and Booth confirmed test in Ivey as a binding precedent which was purely objective.

Question 13

Critiques

Answer 13

No definition of dishonesty and theft act 1968.

Prior to the theft act theft was a common law offence partially codified in the Larcency Act 1916 which made it an offence ‘to steal without the consent of the owner fraudulently’. The only case to discuss the meaning of fraudulantly under the old law of Larcency said that it meant intentionally and deliberately and without mistake Williams.

The phrase ‘Fraudulently and without claim’ was replaced with ‘dishonesty’ by the criminal law revision committee simply because they thought dishonesty easier for a jury to understand that fraudulantly. This has clearly led to many problems.

Since the 1980s for test for dishonesty and theft offences had come from the case of our R v Ghosh. This formulated a two part test combining objective and subjective standards.

This proves problematic for juries considering to consider and has meant that as long as the defendant could show they did not believe their actions to be dishonest then mens rea could not be satisfied.

In 2002 Law Commission commented ‘there is some evidence of people’s moral standards are surprisingly varied’ DPP v Gohill. It was argued that the test should be codified in statute to make the test more transparent and intelligible.

Critics have argued that if the Theft Act 1968 had originally explained the meaning of dishonest such problems would nkt have arisen.

In 2017 this test was questioned in the civil law case of Ivey. This favoured a single objective test. These comments however were only obiter and therefore the law was left in a state of uncertainty, waiting for those comments to be confirmed in the Criminal courts and become binding precedent.

That Opportunity arose in the case of our V Barton and Eve which confirms that over to comments and Ivy but the test for dishonesty is now purely objective with the relevant question being white ordinary and reasonable person leave in the same facts as the defendant would consider them to be dishonest.

However the current has confirmed about and who can be criticised for being a circular test. This explains what amounts to dishonesty, conduct which does not meet the standards of honesty, what does not meet the standards of honesty and anything which is dishonest.

It assumes a more consistency a mongers when in reality Jews were likely reflect the diversity of morrow outlooks and experience. This risks inconsistency and unpredictable outcomes.

It also means that the risks being convicted of a crime for behaviour which they did not know in advance to be dishonest which is unfair. This could potentially be in breach of article 7 of the ECHR.

The law commission in their consultation paper 155 acknowledges that in some cases a person may not be able to foresee whether a proposed course of action would be criminal and seeking legal advice is not likely to help.

Question 14

Intention to permanently deprive

Answer 14

Intention of permanently depriving regardless if actually deprived of property.
If borrowed until the goodness for virtue of the practical value… Has gone out of the article it can fall within section 6 as in Lloyd.
Whereas Velmuyl permanently deprive the owner of exact notes and coins despite returning same value.

Question 15

Critiques

Answer 15

Challenges improving intent evidential issues. It seems he was convicted on a technicality and light was acquitted on a technicality. Although although we should not be allowed to get away with taking money from the office so for the co-op to use their imagination to come up with a fat but it would not be the exact money that was returned. Alternatively light was able to escape liability because the court did not think the films had copied have been reduced in value.

Is it necessary to include this as part of the law on fifth? If someone is honestly takes property belonging to another does it matter whether they intended to permanently deprive the other of it? This would make it possible to convict in situations such as Lloyd were filled with copy but then returned it is because of this peculiarities at the theft act in includes a separate offence of taking vehicles without consent.

Conditional intention to deprive. This is where the D examines property to see where it is worth stealing,If you don’t return is it this is not fair and bracket (awesome). Arguably the word permanent in the definition of the fifth should be replaced with temporary to ensure situations such as this to amount of effort. This would bring the law into line with a country where the coats of rules that are conditional intention to steal anything is sufficient section 9 (1) (a).

Conditional intent has been confusing and this is shown in the cases. Ages ref finally resolved issue clear clearly and indicates that a conditional intent when nothing is physically taken can I meant to attempt to collect this seems fair as they would have stolen if there had been anything worth taking. However on the other hand it also seems unfair as he is being punished when he hasn’t actually taken anything at all.

Question 16

Conc - Complexity and ambiguity

Answer 16

Critics argue that the language and structure of the Theft Act 1968 are complex and often ambiguous leading to difficulties in terpretation and application by both legal professionals and ordinary citizens. This complexity can create uncertainty in the law and result in inconsistent Judicial decisions.

Question 17

Outdated definitions

Answer 17

Arguably the definitions of key concepts such as dishonesty and appropriation in the Theft Act are outdated and not reflective of contemporary societal norms and practices. This can lead to unfair outcomes in cases where the law fails to adequately address modern forms of theft such as cybercrime.

Question 18

Inadequate penalties

Answer 18

Some argue that penalties prescribed by the Theft Act are not proportionate to the gravity of certain theft related offences. Critics claim that the Act does not sufficiently distinguish between minor and serious forms of theft leading to disproportionate punishments in some cases.

Question 19

Failure to address new forms of theft

Answer 19

With the rapid advancement of technology new forms of theft have emerged such ad identity theft a d online fraud, which may not be adequately addressed by the provisions of the Theft Act. Critics argue that the law has failed to keep pace with these developments leaving gaps in legal protection and enforcement.

Question 20

Ineffectiveness in preventing theft

Answer 20

Some argue that the Theft Act has not been effective I deterring theft or reducing crime rates. They claim that the act’s focus on punishment rather than prevention fails to address the root causes of theft and may contribute to recidivism rates among offenders.

Question 21

Inconsistencies with other legislation

Answer 21

The Theft Act 1968 interacts with various other laws and statutes leading to potential inconsistencies and conflicts in legal principles and interpretations. Critics argue that these inconsistencies can undermine the coherence and effectiveness of the legal system as a whole.

Question 22

Limited scope

Answer 22

The Theft Act’s focus on traditional forms of theft may be considered too narrow by some critics. They argue that the Act should be expanded to encompass broader concepts of property a d ownership, including intellectual property rights and environment resources.

Question 23

B - Needed for clarity and certainty in the law

Answer 23

A conviction for theft carries a social stigma. It is an attack on their character and may lead someone’s honesty and integrity to be questioned. It may even loose a person their job. Yet ss we can see the law on theft is not clear - for example what can amount to an appropriation (technicalities)

Question 24

C - Theft law needs reform to reduce the risk of judgements which lack common sense

Answer 24

Tamblyn, N in the Criminal Law Review article Reforming Theft: Taking without consent proposes a new offence of theft based on intentionality or recklessly taking or keeping another’s property, knowingly or recklessly without consent. It argues that the proposed law is in practical terms an improvement on the current law and also a better fit in theory in terms of characterising the wrong of theft.

The study says a solution would be to base theft law purely on consent for it to be a serious intentional or reckless interference with another’s property without consent. This more closely aligns with the core wrong of theft and is easier to understand for police prosecutors a d juries trying to decide if someone is guilty of theft.

Professor Tamblyn said the law regarding theft needs reform because it is producing strange results. Partly the problems stem from the fact that the current definition of theft involves an appropriation of property, which can be as trivial as merely touching property. Instead, I suggest that theft should be reserved for serious interference with property like taking and keeping.

In the Criminal Law of Mew Zealand under the Crimes Act 1961 as amended theft is where D takes dishonestly and dishonestly is defined as acting without a belief that there was express or implied consent or authority to the taking without belief that the owner consents.

Question 25

D - Replace permanently with temporarily when considering the intention to deprive

Answer 25

Although theact has stood the est of time, it has not been without criticisms.

Smith and Hogan have raised concerns about aspects of the act. Most notably the court of appeal have called for the urgent reform of the act - Hallam and Blackburn although their criticism seemed levelled more at the way that it has been interpreted by the courts as to any inherent shortcomings as in its drafting.

Despite these criticisms the Act has had a long and successful history and may be around for a long time yet to come.