Essay Plan: "Explain the role of dishonesty both under the Theft Act 1968 and under the Fraud Act 2006."
Introduction
• Focus: Introduce the centrality of dishonesty in both the Theft Act 1968 and the Fraud Act 2006.
• Thesis: This essay will explore the role of dishonesty in both acts, its implications for legal principles, and its impact on criminal liability.
Paragraph 1: Role of Dishonesty Under the Theft Act 1968
• Shift in Legislation: The Theft Act 1968 replaced the Larceny Act 1916 to create a more generalised and accessible offence of theft.
◦ Introduction of Dishonesty: Replaced ‘fraudulently’ with ‘dishonesty’ to simplify understanding for juries.
◦ Critique: This shift has been criticised for leading to the reduction of the actus reus to a vanishing point.
• Relationship with Appropriation:
◦ Case Law:
▪ R v Lawrence (1972): Held that appropriation could occur even with the owner’s consent; introduced the problem of conflating theft with crimes of deception.
▪ R v Morris (1984): Suggested the need for ‘adverse interference,’ but also introduced the concept of ‘dishonest appropriation,’ mixing mens rea with actus reus.
▪ R v Gomez (1993): Overruled Morris, reaffirming that appropriation did not require adverse interference.
▪ R v Hinks (2000): Expanded the scope of dishonesty, applying it even to valid gifts, raising concerns about the boundary between civil and criminal law.
• Critique:
◦ Manifest Criminality: The expanding role of dishonesty raises issues with manifest criminality, suggesting that visible wrongdoing should be required before the law intervenes.
◦ Human Rights Concerns: Potential violation of Article 7 of the ECHR (no punishment without law), as the definition of dishonesty becomes too broad and unpredictable.
Paragraph 2: Role of Dishonesty Under the Fraud Act 2006
• Creation of a General Principle for Fraud:
◦ Outline of the Act: The Fraud Act 2006 aimed to simplify fraud offences by introducing a general offence of fraud.
◦ Critique:
▪ R v Lambie (1982): Demonstrated the problems with the old law before the Fraud Act, where dishonesty was inconsistently applied.
▪ Effective Use: R v Jeevarajah (2010) showed the effectiveness of the Fraud Act in prosecuting fraud cases with a clearer principle of dishonesty.
◦ Concerns:
▪ Criminalising Lying: The broad scope of dishonesty under the Fraud Act raises concerns about potentially criminalising everyday dishonesty, blurring the lines between serious fraud and minor deceptions.
▪ Manifest Criminality: The act challenges the concept of manifest criminality by potentially punishing thoughts or intentions rather than clear, observable wrongful acts.
Paragraph 3: Application and Definition of Dishonesty
• S.2 of the Theft Act: Provides no clear definition of dishonesty, leading to varying interpretations in case law.
◦ Case Law:
▪ R v Feely (1973): Suggested that dishonesty should be judged by the standards of ordinary people.
▪ R v Ghosh (1982): Introduced a two-part test for dishonesty, considering whether the act was dishonest by ordinary standards and whether the defendant realised this.
▪ Ivey v Genting Casinos (2017): Overruled Ghosh, simplifying the test to consider only whether the act was dishonest by ordinary standards.
• Critique:
◦ Lord Hughes’ Criticism: In Ivey, Lord Hughes criticised the subjective element of Ghosh, arguing for a more objective standard.
◦ Impact on Other Offences:
▪ Robbery: The broad definition of dishonesty has made it easier to establish robbery, as the mere act of touching combined with dishonest appropriation can suffice for conviction.
◦ Overall Impact: The wide scope of dishonesty under both the Theft Act and the Fraud Act has led to concerns about the fairness and clarity of criminal law, with potential overreach and inconsistent application.
Conclusion
• Summary: The role of dishonesty is central to both the Theft Act 1968 and the Fraud Act 2006, but its broad and sometimes inconsistent application raises significant legal concerns.
• Final Argument: While dishonesty plays a crucial role in these offences, its expansive interpretation undercuts principles of legal certainty and fairness, calling for a more precise and consistent approach in defining and applying this concept in criminal law.
Sample Paragraph:
The role of dishonesty under the Theft Act has a major role and can be explained through its relationship and conflict with appropriation. Dishonesty has started to have a significant role in determining the existence of appropriation which is problematic because it has the effect of reducing the actus reus to vanishing point. This can be presented through the trail of cases from Lawrence through to Hinks. In Lawrence 1972, the defendant was a taxi driver who, with the consent of the passenger (victim), took out of his wallet a greater amount than usual which resulted in him being convicted of theft. The removal of the ‘without the consent of the owner’ requirement is problematic because it means that certain crimes of deception are identical to theft, but not necessarily the other way round. As they have different moral foundations and punishments, this highlights how the use of dishonesty has had a negative effect through its use in establishing the actus reus of theft. The Morris 1984 case disagreed with Lawrence on the issue of consent holding that there must be an ‘adverse interference’ or ‘usurpation of the owner’s right’. The court held that appropriation should not be considered in isolation and they used the term ‘dishonest appropriation’. This is dangerous because the court had introduction the element of mens rea into the actus reus of a crime. Gomez 1993 held that an adverse interference was not necessary, overruling Morris and upholding the principles in Lawrence. However, the Hinks 2000 case was significant in highlighting the very wide scope of dishonesty. The case involved the defendant who worked at a care home and used to go with the victim (a man of limited intelligence) and persuaded him to withdraw £300 every day with his consent to put into the defendant’s account. The defendant was charged with theft. Firstly, the act was a valid gift and should have been set aside under civil law for undue influence or unconscionably; this is not necessarily a matter for criminal law. Secondly, this case removed the only significant limitation that survived in Gomez. Not only does appropriation apply to property obtained by deception but also to valid gifts. The increasing role of dishonesty in theft is dangerous because it raises problems in regards to manifest criminality. This holds that the defendant must have done something visibly wrong because the law does not intervene if the offence is still in the mind. The increasing reliance on dishonesty may also violate article seven of the ECHR. This should explain how dishonesty has a significant role in the actus reus element of theft.