Theft Criteria: Appropriation

Section 3 of the Theft Act 1968

• Definition: Any assumption by a person of the rights of the owner.

• Scope: This definition is broader than the old concept of "taking and carrying away.”

Key Cases and Concepts:

1. R v Lawrence 1972:

◦ A taxi driver took more money than necessary from a tourist's wallet after the tourist opened it to pay the fare.

◦ Even though the tourist consented to the driver taking money, the driver was convicted of theft.

◦ This case demonstrated that appropriation can occur even with the owner's consent.

2. Removal of Consent Requirement:

◦ Under the 1916 Act, appropriation required the absence of the owner’s consent.

◦ This requirement was removed in the 1968 Act, making certain crimes of deception identical to theft.

◦ This removal is problematic as it blurs the distinct moral foundations of different crimes.

3. R v Morris 1984:

◦ The defendant switched labels on items in a store to buy them at a cheaper price.

◦ Morris argued that there was implied consent by the store owner for customers to switch labels.

◦ The court held that appropriation involves some adverse interference with or usurpation of the owner's rights, and it must be non-consensual.

◦ This was contrary to Lawrence on the issue of consent, as Morris was affirmed in R v Skipp 1975 but later overruled in Gomez.

4. R v Gomez 1993:

◦ The defendant, an assistant shop manager, received two stolen cheques as payment for goods and persuaded his manager to accept them by lying about their validity.

◦ The defendant was charged with theft even though the manager consented to the transaction.

◦ The case shifted the focus from the act of appropriation to the question of dishonesty, introducing a subjective basis for appropriation.

◦ Gomez overruled Morris, establishing that an act can be appropriation even with the owner's consent, thereby supporting the principles stated in Lawrence.

◦ The decision indicated that adverse interference is not necessary, and appropriation occurs when a shopper handles shop property, as it deprives other customers of that property.

5. Sir John Smith’s Example:

◦ If a person touches someone else’s wallet with the intent to steal but then changes their mind, they have appropriated the wallet and committed theft.

◦ This illustrates the broad scope of appropriation, emphasising the role of dishonest intent.

6. R v Pitham:

◦ While the victim was in prison, a friend offered the victim’s goods for sale to someone else without the victim's consent.

◦ The friend was charged with theft, demonstrating that merely offering to sell someone else’s property constitutes appropriation, even without physically handling the goods.

7. Hinks 2000:

◦ The defendant worked in a care home and persuaded a resident to withdraw £300 each day and deposit it into her account, with his consent.

◦ She was charged with theft, and the appeal was dismissed, showing that accepting a gift under dishonest circumstances can be appropriation.

◦ This case highlighted the conflict between criminal and civil law regarding the validity of gifts, as in civil law, this would have been a valid gift potentially invalid under undue influence or unconscionability.

◦ The decision reduces the significance of the actus reus (AR) to a "vanishing point" as it shifts focus to the mens rea (MR) concept of dishonesty, potentially violating Article 7 of the ECHR.

Implications and Consequences:

• AR and MR Intersection:

◦ The traditional physical act of appropriation now includes subjective dishonest intent.

◦ This shift reduces the importance of the actus reus, placing greater emphasis on mens rea.

• Legal Conflicts:

◦ The broad scope of appropriation creates tension between civil and criminal interpretations of property rights.

◦ This legal complexity challenges the clarity of the law and may conflict with principles like the harm principle and Article 7 of the ECHR.

• Appropriation by Omission:

◦ The law does not specifically address appropriation by omission, but it implies that if someone becomes dishonest and fails to act appropriately, it could be considered theft.

◦ For example, in Broom v Crowther, this concept was tested but requires further clarification.

Summary: The concept of appropriation under the Theft Act 1968 has expanded to include a wide range of actions, even those with the owner’s consent. The focus has shifted from the physical act to the dishonest intent behind the act, broadening the definition of theft and creating new complexities within the legal framework. This evolution emphasises the need for clear guidelines to maintain consistency and fairness in applying the law.