In order to discuss Alan's criminal liability, it is necessary to look at the law of property offences and in particular, theft and deception. In the UK, the law of theft is to be found in the Theft Act 1968 passed by the Criminal Law Revision Committee. Despite the fact that the 1968 Act was designed to clarify the law making it more understandable and easier to access, the courts encountered a series of problems with interpretation and application. So, part of the Act was repealed and the Theft Act 1978 was passed.
In 1996, further problems with the law were found1 and lead to the passing of the Theft (Amendment) Act 1996 which amends the two earlier Theft Acts. The first point to note is that in order to find out if there is a theft in any case, we would have to examine if the defendant's action fit the definition of theft under s. 1 Theft Act 1968. Thus, it is important to note the five important elements of theft in every case. They are; dishonestly2, appropriates3, property4, belonging to another5 and with the intention to depriving the other of it6.
The actus reus of theft is appropriating property belonging to another. The offender will have the necessary mens rea if he does this in a dishonest way, intending to permanently deprive the true owner of it. In Alan's case, we are told that Alan is an employee of a company supplying cigarettes to shops. Here, it is clear that Alan is holding the cigarettes under the obligation to deal with it or the proceeds of the cigarettes in a special way7. Thus, it is not necessary to look at the element of property and belonging to another as it is clear that the property, the cigarettes, belong to the cigarette company.
Neither do we have to examine the factor of dishonestly as this is obviously shown when Alan made an unauthorised roundabout route to his house and leaves some of the boxes at his home. The issues that we need to look at are, has Alan 'appropriated' the property and was he 'intended to permanently depriving the others of it'. For an appropriation to arise there had to be an adverse interference or a usurpation of the rights of the real owner. Alan would have appropriated the cigarettes when there is an assumption of any rights of the owner, the cigarette company.
Lord Roskill stated clearly that it is enough for the prosecution to prove that just one of the rights of the owner has been assumed9. The moment Alan assumed any of the rights of the real owner of the cigarettes, which is in this case, leaving some of the boxes at his home, is sufficient to amount to appropriation10. A simple decision to keep property, unaccompanied by any physical act could amount to an appropriation. 'An act done with the authority of the company cannot in general amount to an appropriation' are no longer good law.
Following Gomez 1993, an appropriation can occur even though the owner appears to imply or express consent to the taking12. Thus, Alan holding the cigarettes for a company can be found guilty of theft when he appropriates the company property for his own benefits or own use and there is no need for the prosecution to prove that Alan's appropriation of the cigarettes was without the owner's consent. The appropriation does not occur until Alan forms the dishonest intent. It is this mental act which converts what previously would have been lawful possession into the actus reus of theft13.
Although Lawrence14 had clearly broadened the concept of appropriation by encompassing consensual taking, there followed a series of decisions which incorporated a concept of appropriation which recognised the need for some unauthorised act on the part of the defendant15. Alan's case is quite similar to the case of R v. Skipp16, where the single appropriation occurred when he diverted from an authorised route with dishonest intent. This was the defendant's first unauthorised act and could apply to Alan's case. The next issue to look at is 'intention permanently to deprive'.
There is no clear definition for this phrase17 but a person will be taken as permanently depriving the other of property if he intends to treat the property as his own to dispose and regardless of the real owner's rights18. This obviously applies to Alan's situation as he intended to take the cigarettes as his own and sell them cheaply to his friends and neighbours. From the information available to us, we are told that later that day, Alan returns home to reload the boxes because he is scared that he will be caught. This would not make any difference to the outcome.
So long as Alan intended deprivation earlier, there is no need for actual permanent removal19. It would also be difficult for Alan to use the defence in Easom 197120 where he did not make up mind to steal as his intention was clear in earlier statement of 'intends to sell … '21. Thus, Alan would be liable for theft in this case. Regarding the case where Alan overcharged the customer by three times the value of the goods and kept the profit for himself, we will have to look at the law of 'obtaining a pecuniary advantage by deception'.
In order to establish deception in any case, it is necessary to find the five common elements which are; a person must be deceived23, there must be a deception24, there must be something obtained as a result of the deception25, the deception is practised deliberately or recklessly and there must be dishonesty as a separate element to the deception. Also, deception, could, on occasion, overlap with the offence under s. 15 of the 1968 Act. In this case, the deception was through excessive overcharging the customer and obtaining the profit for himself.
This is a way of dishonesty and so, there is no need to apply the Ghosh test, which will be discussed in detail below. Also, we are being told that Alan knew the customer very well and played snooker with him at weekends. This can support the fact that there is mutual trust between them. Thus, referring to Silverman 198726, Alan may have impliedly relying on his mutual trust that the charge was proper and fair. Furthermore, it is obvious that the deception was practised deliberately27 as Alan had overcharged the customer for three years. Therefore, Alan would be liable for s. 16 offence.
As for the case where the shop assistance gave Alan too much change and Alan did not say anything and kept the money, we would have to look 'belonging to another' and 'dishonestly'. When Alan used a 10 note and the assistance, believing she has given a 20 note, gave him too much change, it is necessary to look at s. 5(4) Theft Act 1968. This section deals with circumstances where a person receives property by mistake in which this case would refer to the extra change given to Alan. In such a case, Alan is under an obligation to restore the property to its rightful owner as he is not the rightful owner.
If Alan fails to disclose the mistake and restore the property to the shop assistance, Alan will be classed as intending to deprive the other of it and may be liable for theft28. It would be a different matter if Alan genuinely believed that he was entitled to the money or was genuinely unaware of the overpayment29. However, this would not be the case as the information stated that "Alan does not say anything and keeps the money". This indicates that Alan was aware of the mistake, was being dishonest and intended to permanently deprive the other of the extra change.