Essay Plan: ‘There is no need for the element of “intention permanently to deprive” in the offence of theft, just as there is no need for the element of “dishonesty” in the offence of fraud. ‘Discuss.

Essay Plan: ‘There is no need for the element of “intention permanently to deprive” in the offence of theft, just as there is no need for the element of “dishonesty” in the offence of fraud. ‘Discuss.

Introduction

• Focus: This essay evaluates the necessity of the elements of "intention permanently to deprive" in the offence of theft and "dishonesty" in the offence of fraud.

• Thesis: While the current elements serve crucial functions in distinguishing between levels of culpability, their elimination would lead to over-criminalisation and undermine principles such as proportionality and fair labelling.

Paragraph 1: Dishonest Appropriation in Theft

• Argument: Dishonest appropriation alone could suffice for theft, but the absence of the "intention to permanently deprive" would overly broaden the scope of the offence.

• Differentiation Between Borrowing and Theft:

◦ The element of "intention to permanently deprive" is critical in distinguishing between permanent theft and temporary borrowing. Without it, even a temporary borrowing with dishonest intent could be criminalised as theft.

◦ Section 6 of the Theft Act 1968:

▪ This section addresses temporary deprivation, treating it as theft only if the borrowing is equivalent to an outright taking. For example, in R v Lloyd (1985), the temporary deprivation of property was not sufficient to constitute theft unless it affected the value of the property.

▪ Mitchell (2008): This case involved a car taken and abandoned without intent to deprive permanently. The lack of permanent deprivation intention meant the act did not constitute theft.

◦ Case Examples:

▪ R v Marshall (1998): Selling returned train cards was considered theft because the defendants treated the cards as their own to dispose of, even though there was no intention to deprive the railway company permanently. This demonstrates the importance of "intention to permanently deprive" in limiting the scope of theft.

▪ Dishonesty Subsuming Intent:

▪ While dishonesty is a crucial component, it alone should not subsume the element of intent. This would blur the distinction between serious theft and minor acts of dishonesty, leading to over-criminalisation.

Paragraph 2: Impact on Robbery Offences

• Argument: Removing the element of "intention to permanently deprive" would disproportionately affect robbery offences by lowering the threshold for what constitutes a robbery.

• Example of Dawson (1976):

◦ A mere nudge was deemed sufficient for robbery, highlighting the importance of maintaining strict requirements for the offence, including the intention to permanently deprive.

◦ Implications:

▪ Without the requirement of permanent deprivation, many acts that would otherwise be minor could escalate to robbery, resulting in disproportionate penalties and undermining the principle of proportionality.

▪ Sentencing Concerns:

▪ Robbery carries severe penalties. Removing the need for intention to permanently deprive could result in excessive sentencing for minor, non-violent thefts.

Paragraph 3: Protective Layer in Fraud Offences

• Argument: The requirement of "dishonesty" in fraud offences provides a necessary protective layer, ensuring that only morally blameworthy conduct is criminalised.

• Fraud Act 2006:

◦ The Act moved away from specific deception offences, focusing on the defendant's dishonest conduct rather than their state of mind, thereby narrowing the scope to genuinely culpable behaviour.

◦ Case Examples:

▪ Lambie (1982): The use of a credit card beyond its limit was found to be dishonest because the shopkeeper, though guaranteed payment, was misled about the card's validity. Dishonesty was key to establishing fraud, not the intention to permanently deprive.

▪ Hensler (1870):

▪ Similarly, Hensler's case emphasised that dishonesty must be clearly present for a conviction, protecting individuals from being criminalised for acts lacking clear fraudulent intent.

▪ Jeevarjah highlights the importance of distinguishing between mere lies and those lies that result in criminal fraud. Dishonesty is essential to this differentiation.

▪ Omerod's Perspective:

▪ Criminalising mere lies would lead to an over-broad application of fraud law. Dishonesty serves as a crucial filter, ensuring only genuinely harmful conduct is penalised.

Conclusion

• Summary: The elements of "intention permanently to deprive" in theft and "dishonesty" in fraud are essential for maintaining the integrity and proportionality of these offences.

• Final Argument: Removing these elements would lead to over-criminalisation, undermine the principles of proportionality and fair labelling, and expand the scope of criminal liability inappropriately. These fault elements should be retained to ensure that only genuinely culpable conduct is criminalised, upholding justice and fairness in the legal system.