Part II - Theft & Theory

Question 1

Introduction to property offences - in what way do property offences harm victims?

Answer 1

> Common to distinguish property offences from offences against the person but shouldn’t forget that property offences can cause great emotional distress to V.
Further, ownership & enjoyment of property are by some as an essential aspect of the expression & realisation of human personality (Waldron, Dan-Cohen).
John Gardner and Stephen Shute discuss why it would be wrong to dismiss property offences as being trivial wrongs & why property rights matter to individuals in society:
-“Importance of property lies basically in the valuable things we can do with that property that we cannot so easily do without it.”
-“Its use-value”.
-“It times of scarcity or merely local or discriminate abundance the question is always live: could this thing be better used by someone else?”
-So up to a point, people are left free to hold property they don’t use. The sub-optimal use of a particular thing is justified.
-“In the long history of property rights the point has been located in different places by different regimes.”
-Attach symbolic importance to acquisition and holding of property.
-Sentimental value.
-“People regard themselves autonomous human beings, their own choice of property…has an ever more important place in their self-expression.”
-Result = ‘consumerism’.
-Consumerism effects the moral change and people regard property as meaning more, as carrying more significance, than just the significance imported by its use-value.
-“So on top of its basic use-value, much more of what people hold now has what we might call identification-value.”
-“I have an interest in this property which is basically derivative of the public interest in my having such an interest.”

Question 2

Introduction to property offences - society’s system of property rights

Answer 2

> Although protection of property through the criminal law may appear a natural part of any liberal democracy it raises some complex issues:

1. What kinds of property should be protected by the criminal law?
2. It’s significant that property offences are concerned with the fair & effective transfer, control, and creation of property interests, but are not concerned with the fairness of the distribution of property that results (Melissaris).
3. There’s a fine line to be drawn in the law on property offences between what is a civil wrong and what is a crime.
4. Criminal law isn’t the only way that society may tackle the problem of wrongful interference with property rights.
5. How should we structure criminal offences?

Question 3

Introduction to property offences - Although protection of property through the criminal law may appear a natural part of any liberal democracy it raises some complex issues - What kinds of property should be protected by the criminal law?

Answer 3

> Lacey, Wells & Quick: “criminal law defends not property at large, but certain kinds of - highly unevenly distributed - property. It thereby defends not only property, but the power of certain interests and the authority of the social order.”
From a different perspective others claim that the present law’s understanding of property is out of touch with modern commercial practice in inadequately protecting ‘new property’, such as commercially valuable information or pension rights.

Question 4

Introduction to property offences - Although protection of property through the criminal law may appear a natural part of any liberal democracy it raises some complex issues - It’s significant that property offences are concerned with the fair & effective transfer, control, and creation of property interests, but are not concerned with the fairness of the distribution of property that results (Melissaris).

Answer 4

> Marxist view: by ensuring ‘fair’ transfers, but not fair distribution, the law on property offences reinforces and perpetuates the inequalities within society.
J.G. Murphy: Law protecting preventing taking works harshly on the destitute who have nothing, but protects the interests of those who are well provided for.
Hence Proudhon famously declared that property was theft.
We could alter the purposes of property offences from ensuring those have can keep what they have to instead requiring those who have to give to those who have not.

Question 5

Introduction to property offences - Although protection of property through the criminal law may appear a natural part of any liberal democracy it raises some complex issues - There’s a fine line to be drawn in the law on property offences between what is a civil wrong and what is a crime.

Answer 5

> Should temporary taking be regarded as theft or a matter for civil remedies.
Should remedy be to sue for failure to return money or complete job if paid upfront?

Question 6

Introduction to property offences - Although protection of property through the criminal law may appear a natural part of any liberal democracy it raises some complex issues - Criminal law isn’t the only way that society may tackle the problem of wrongful interference with property rights.

Answer 6

> Society’s resources could be better spent trying to improve the designs of property to make them hard to steal, rather than into prosecution of thieves.

Question 7

Introduction to property offences - Although protection of property through the criminal law may appear a natural part of any liberal democracy it raises some complex issues - How should we structure criminal offences?

Answer 7

> Should we distinguish between the value of the property taken or by the means by which the property was acquired?

Question 8

Introduction to property offences - Structure of property offences

Answer 8

> Currently, OAP are broadly structured according to level of harm to V. Method used is largely immaterial.
However, property offences focus on method used by D to acquire the property.
Should we see blackmail, theft, robbery, burglary, fraud as separate offences or more/less serious forms of the same wrong.
Property offences also seek to protect particular kinds of property seen as particularly vulnerable to abuse, e.g. computers & cars.

Question 9

Introduction to property offences - the civil law-criminal interface

Answer 9

> At heart of property offences is definition of a property right and inevitably criminal lawyers look to civil law for answers.
Need for criminal law to interact with civil law causes tension.
In Hinks, HoL held transaction which constituted a gift in civil law could be regarded as theft in criminal law.
Sarah Green: just because civil & criminal law disagree doesn’t mean criminal law is wrong.
Issues reflect different aims, e.g. civil law focuses on certainty of ownership whereas for criminal lawyers the prevention of dishonest conduct is more important.
However, to ignore civil law completely would cause all sorts of problems because if property offences aren’t protecting property then what are they protecting? Hinks.
Simester & Sullivan see protection of property rights as key to theft. So strong opponents of Hinks decision.

Question 10

Introduction to property offences - Andrew Simester & Bob Sullivan describe what they regard as essence of theft

Answer 10

> ‘The Nature and Rationale of Property Offences’:

• They regard the essence of theft is to protect property interests so they are strong opponents of Hinks decision.
• Theft is concerned directly & primarily with protecting the legal structure of proprietary entitlements.
• Violations of the ownership, control, or possession of property need not always set back the interests of an agent whose rights have been contravened.
• Sometimes a loss of property may have devastating consequences for the nature and quality of an agent’s life. Yet the accretion of property may have no beneficent effect on the quality of life or moral standing of an agent.

Question 11

Introduction to property offences - Theft - the statistics

Answer 11

> Our society has effectively licensed certain forms of conduct which technically fall within the definition of property offence, but which are treated as non-criminal.
E.g. shoplifting & white-collar crime.
Sutherland defines ‘white-collar crime’ as ‘crime committed by a person of respectability and high social status in the course of his occupation.’
Some suggest the explanation for lack of prosecution for white-collar crime is the fine line in the business world that has to be drawn between criminal activity & sharp business practices.
Hadden: the line between acceptable & unacceptable business practices can be said to be in a state of flux.

Question 12

Introduction to property offences - What is property?

Answer 12

> How do we decide what is regarded as property and what isn’t?
Some cannot because of antisocial consequences, and others because it is not effectively possible to restrict or control access to the,.
Moral, practical, & legal arguments can mean for purposes of law some things aren’t property.
So can change over time.
Reich, ‘new property’, e.g. pension entitlements & environmental interests.
Bodies & body parts are undergoing a transition from not being regarded as property to being regarded as such.

Question 13

The Debate over Gomez - intro

Answer 13

> HoL: an appropriation involved an act of interference with one of the rights of an owner, and that could amount to appropriation even if it was consented to or authorised by V.
Highly controversial decision.

Question 14

The Debate over Gomez - for

Answer 14

> Simon Gardner, ‘Appropriation in Theft: The Last Word?’ 1993:

• Essentially followed Lawrence.
• Is the decision desirable from first principles?
• Quality of dishonest conduct isn’t necessarily altered by V’s consent.
• V could consent to taking, but does so in a state of low-level, non-specific confusion.
• If theft were negatived by consent then cases where there’s deception that’s not clear and so unable to convicted under s. 15 or s. 5(4) for want of true mistake, then wouldn’t constitute an offence.
• By their Lordship’s decision in Gomez, however, theft does occur in such cases.
• Consent is a problematic concept as even if it simply meant saying ‘yes’, difficulties would remain.
• So requisite of non-consent would make administration of theft difficult.

Question 15

The Debate over Gomez - against

Answer 15

1. Decision means that virtually every offence of obtaining property by deception contrary to s. 15 of TA 1968 is theft.
   - FA 2006 has abolished s. 15 offence so argument less relevant but now there’s significant overlap between fraud & theft.
2. Following Gomez an act can amount to an appropriation which isn’t ‘manifestly theftuous’ to use a phrase of George Fletcher’s.
   - Giles & Uglow: An act which appears objectively innocent can become theft if accompanied by necessary MR.
   - Theft could become ‘mind crime’. Melissaris accepts that appropriation is essentially a mental attitude which is harmful, but not harmful enough to warrant being criminal until it is manifested in an act.
3. Lord Lowry in his dissenting judgment in Gomez placed much weight on view that the decision of the majority isn’t in line with the view of the Criminal Law Revision Committee, whose report formed the basis of TA 1968.

Question 16

The Hinks Debate: The Arguments Against Hinks

Answer 16

1. Sets up conflict between criminal & civil law.
   - Hypocritical: receive valid gift and stole it?
   - Lord Steyn (majority) said conflict acceptable as civil & criminal laws have different aims.
   - Or could say it is the civil law which has it wrong: Jouman: elderly & vulnerable people need protection from being exploited.
2. Created uncertainty.
   - Whether transfer amounts to theft now depends on whether action is thought by the jury to be dishonest.
   - Phillips, Walsh & Dobson: too uncertain for purposes of Art. 6 of ECHR.
   - Notably, Law Commission Consultation Paper on Fraud and Deception 1999 decided that a general offence of dishonesty was too vague to be compatible with Convention rights.
3. Difficult to explain how Hinks could be said to have appropriation property belonging to another as at the moment of appropriation, ownership changed hands.

Question 17

The Hinks Debate: Stephen Shute

Answer 17

> Doesn’t find objections as powerful as may first appear.
S. Shute, ‘Appropriation and the Law of Theft’ 2002:
-For many, this enlargement of the scope of the criminal law to include cases where title passes as a result of an unimpeachable transaction is unjustified:
1. Contrary to framers of TA 1968.
2. Opens door to inappropriate prosecutions. Lord Steyn wasn’t convinced and said such cases would hardly be prosecuted and if they were then they would be ‘likely to founder’ as jury wouldn’t be persuaded there was a dishonesty in the required (Ghosh) sense.
3. Pares down excessively the AR of theft and combined with Gomez, some suggest AR reduced to ‘vanishing point.’ Simultaneously role of MR increases. In turn generates 2 interconnecting objections to the Gomes/Hinks position: one based on rule of law; the other on the harm principle.
-Citizens ought to be able to predict in advance whether or not their actions/omissions will be criminally prohibited, which in turn enhances a number of rule of law principles. So relying on dishonesty to take most of the definition strain of theft is said to work against those values as it’s not easy to predict in advance whether one’s actions will be adjudged dishonest.
‘Harm principle’: in a liberal society criminalisation is justified only if it serves to prevent harm. Hinks breaches harm principle as it expands the scope of the offence of theft to cases where no civil wrong has been committed.
However, the harm principle doesn’t say that only harmful wrongs may be criminalised. Rather it states that even harmless wrongs can be criminalised if criminalisation diminishes their occurrence and if their wider occurrence would detract from other people’s prospects.
Civil-Criminal law conflict. Lord Steyn agreed that “in theory the two systems should be in perfect harmony” but said in “a practical world” there will sometimes be some disharmony between them, especially as their purposes are “somewhat different”.
However, Professors Beatson and Simester view any extension of the law of theft to include unimpeachable transfers ‘risks seriously distorting the law of property’.
-Property offences are designed to protect property rights and if we were to allow the law governing property offences to trump civil law rules, that dependence would be broken and property crimes would be left with no ‘rationale.’
-However, if we leave civil law unchanged than “the principle that no-one may benefit by his wrong would [in these circumstances] have immediately to be abandoned.”
-They argue that Hinks forces us to choose between abandoning a well-founded principle of civil law & divorcing property offences from their underlying rationale.
-However, this is mistaken as just because the law allows a property offence to be committed it is false to assume the link between property offences & rights will have been broken. Fails to recognise that even without breaching a proprietary right the criminalised act may nonetheless have a tendency to undermine property rights.
No threat to that rationale if a crime is committed in these circumstances if able to ‘trump’ the normal civil law rules thus rendering an otherwise valid transfer voidable. In fact, the law of property has long since acknowledged such a possibility. It does so by giving legal effect to the principle that ‘no-one may benefit from his own wrong.’

Question 18

The Hinks Debate: Alan Bogg and John Stanton-Ife

Answer 18

> A.L. Boog and J. Stanton-Ife, ‘Theft as Exploitation’ (2003):

• Counter the argument that as the transfer was valid in civil law there was no harm to V by suggesting that even if a transfer were valid, it can be seen as harmful to V if it involves exploitation.
• D had taken unfair advantage of V’s vulnerability, and abused his trust, in order to procure the transfer of property. This exploited V.
• Exploitation is wrong.
• Most wrongful if the manner of use involves coercion, deception or manipulation; if the characteristics used are moral virtues or particular vulnerabilities; and if the exploiter makes extensive gains & losses. All of these features were present in Hinks.

> Simester & Sullivan and other critics may respond to Bogg & Stanton-Ife’s argument by claiming that Hinks might have engaged in exploitation and that this should be criminal, but not the crime of theft.

Question 19

Temporary Appropriation

Answer 19

> Intention to permanently deprive.
Many justification for law’s approach is that borrowings are best dealt with under the civil law and aren’t sufficiently serious to justify the interventions of the criminal law.
W. Wilson: although V of temporary appropriation may have lost ability to use the item for a period of time that is not as serious as an outright taking.
Glanville Williams sets out case for stating that temporary appropriations should amount to theft.

Question 20

Temporary Appropriation - Glanville Williams

Answer 20

> G. Williams, ‘Temporary Appropriation Should Be Theft’ (1981):

• “The taker of the article may use it in such a way as to put it at risk, or he may make a profit from it, or he may return it in an impaired condition; and if he is a person of no substance the owner’s civil remedy against him will be an insufficient penalty.”
• “The intent required by the present law of theft puts the jury or magistrates in a difficult situation. The taker may himself have no clear idea when he takes the things whether he is going to return it or not.”
• “If a person has gone off with the property of another, and upon being apprehended and charged with theft swears that he meant to return it, is his statement to be accepted or not?”
• “Why should not the dishonest taking be sufficient to constitute the offence of theft, thus relieving the prosecution of a very difficult burden of proof?”
• In Warner (1970), D hid tools and lied to police that he didn’t know where they were. They were found and he said he was only going to keep them for an hour then give them back. Jury convicted him but conviction quashed on appeal as no intent to deprive owner permanently.
• Illustrates that a person may take another’s property by way of revenge without committing an offence; and he will not commit an offence even if he causes great loss and keeps the property a considerable time, if he intended to give it back in the end.

Question 21

Dishonesty - overview

Answer 21

> After Hinks, some feel that appropriation has become almost a token requirement, and that dishonesty has become the key notion in theft.
Concerning to some because of the rather loose definition of dishonesty used by the law.
New Ivey test places much weight on what is regarded as honest by the ordinary honest person.
Difficulty with that approach is that it assumes there are generally agreed standards about honesty.
Stuart Macdonald refers to an online study by Stefan Fafinski & Emily Finch which asked the public whether they thought behaviour was dishonest and they found a divergence on a range of issues.
However, they may not have asked right question as to stimulate a jury situation it should be asked beyond all reasonable doubt, there was dishonesty. That might generate far more consensus.
Stuart Green article.

Question 22

Dishonesty - Stuart Green

Answer 22

> S. Green, ‘Property Offenses’ 2014:

• What about societies in which property is distributed in a radically unjust manner?
• Some scholars have suggests that people who have suffered from severe societal injustice should be exempt from liability for a whole range of offenses - property crimes as well as violent crimes like murder & rape.
• One view is that the injustice of a given society should be viewed as more relevant with respect to judging the blameworthiness of offenses against property than it is with respect to offenses against the person, which don’t depend on background considerations of social justice.
• Jim Harris: “The background right [to property] is historically situated. It does not have the same ahistorical status as do rights not to be subjected to unprovoked violence to the person. There are no natural rights to full-blooded ownership of the world’s resources.”
• If try and achieve a threshold of justice through implementing moral background then whilst murder, assault, rape are always wrong, theft is only morally wrong when this justice threshold is attained.
• When does a given property institution achieve a threshold of justice?
• Emmanuel Melissaris has suggested that we need to distinguish between societies in which injustice is ‘extreme’ and those in which it is ‘partial’.
• The former involve “cases of basic structural injustice, in which groups are denied the resources of liberties to which they are entitled by virtue of their status as participants in the political community and which are necessary for them to make the best of that status”.
• The latter involve cases where “a fair scheme of distribution of resources & liberties is largely in place but there are imperfections, which means that some citizens are distributively short-changed.”
• Where injustice is extreme, he says, the state can “make no demands of its citizens” and therefore is “not justified in criminalising interferences with property.”
• Cases of partial injustice present a more complex issue.
• According to Melissaris, injustice of this sort sometimes causes excusing conditions, such as cognitive impairments and provocations, but it does not by itself justify D’s acts.
• In some cases… property lawbreaking serves a vital role in challenging moribund & unjust property regimes and creating a more just social order.
• “Expressive property outlaws”: seek to use lawbreaking to send a message about the perceived injustice of existing property arrangements… By defying such laws, protesters sent a tangible message that such laws were unjust and harmful and that the interests they protected were illegitimate.

Question 23

Robberies

Answer 23

> Andrew Ashworth outlines some of the difficulties with the legal definition of robbery.
A. Ashworth, ‘Robbery Re-assessed’ (2002):
1. 3 ways to commit robbery = using force, putting someone in fear, seeking to put someone in fear. The various ways of committing the offence aren’t ranked in order of relative seriousness.
2. Blurred boundary between theft & robbery. Term ‘uses force’ has been interpreted to include relatively slight force so the effect is to label such offences as robbery rather than theft, and to put them in a category which has life imprisonment as the max penalty.
3. Robbery is a single offence and extraordinarily broad. The single max penalty, life imprisonment, covers the whole range.

Question 24

Handling Stolen Goods

Answer 24

> Justified as people handling stolen goods are encouraging others to steal?
Handler is adding to deprivation of the owner’s property by making it harder to locate and so less easy to recover?
Conceive the handler as complicit with the thief: they have joined together with the thief in the enterprise of removing the owner’s property.

Question 25

Concluding thoughts

Answer 25

> Criminal courts have sought to avoid the complexities that would arise from fully integrating property law into criminal law.
However, in doing so, they have opened themselves up to objections that theft is punishing dishonesty, rather than an interference with property interests.
Some commentators happy as this shift emphasis the morally significant issue (dishonesty) rather than more technical matters of property law.
Others argue that it leaves the offence vague and lacking clear justification.