This essay will critically discuss the effect of the [courts’] overbroad view in reading of the element of appropriation which led to the offence of theft being interpreted as an extraordinarily wide one.
Since the introduction of the Theft Act 1968 there has been inconsistency in the interpretation of appropriation as courts and commentators have grappled with the intuition that appropriation must entail some subjective element and cannot be purely objective.
With the aim of moving from the protection of possession to the protection of property, theTheft Act 1968 replaced the LarcenyAct 1916 actus reus requirement of 'taking and carrying away' in the offence of theft with the requirement of 'appropriation' defined as 'the assumption of the rights of the owner'. This change, however, has caused more problems than it solved, as courts have failed to interpret the concept of appropriation with any consistency.
As it will be argued, the controversy is due to the intuition that appropriation cannot be purely factual but must entail some mental element. According to section 1 of the TA 1968: A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it'. Appropriation is defined in section 3(1) of the TA 1968 as 'any assumption by a person of the rights of an owner.., and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner'.
The debate seems always to revolve around one central question, namely whether appropriation should be regarded as a purely objective requirement and, therefore, ascertained without any reference to the subjectivity of either the defendant or the owner of the thing, or whether some mental element is entailed in the concept of appropriation.
But both courts and theory have found it very difficult to associate subjectivity with anything other than responsibility.
A look at some central criminal law cases ,will show how courts’ overbroad reading of the element of appropriation has led to the offence of theft being viewed as extraordinarily wide .
In Rv Lawrence ,the defendant was charged and convicted of theft and appealed on the grounds that the victim had consented to being parted from his money, albeit he did so after having been deceived by the defendant. Therefore, he ought to be charged with obtaining property by deception rather than with theft.
The appeal was dismissed and the House of Lords held that theTA 1968 cannot be reconstructed as if to include the Larceny Act 1916 requirement of absence of consent. Consent was deemed not to be salient to the question of appropriation.
Soon after Lawrence, it was felt that accepting that appropriation takes place despite the owner's consent amounted to dissociating appropriation from some adverse interference with the owner's property. This, however, seemed rather counterintuitive.
In MorrisAlthough the convictions were upheld, because the combination of the defendants' acts amounted to appropriation, Lord Roskill commented that , contrary to Lawrence, appropriation entailed some adverse interference with or usurpation of the owner's rights. What is striking about Morris is that the court felt it was not departing from Lawrence, which nevertheless seemed to be directly contradicted by the new interpretation of appropriation rendering the latter even more ambiguous.
In R v Gomez the House of Lords was required to choose between Lawrence and Morris.
The court held that, although Morris was correctly decided, Lord Roskill's dicta were rather unnecessary and unfortunate, for an adverse interference with or usurpation of the rights of the owner were not necessary for appropriation to take place. Rv Hinks was decided along similar lines and has caused even more controversy. In Hinks The court held that, despite...
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