Criminal Law – Appropriation

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 the fact that there was nothing wrong with the gifts in civil law terms, receiving them still constituted appropriation and, as the defendant was dishonest, she was convicted of theft.

Moreover, Hinks draws a sharp distinction between civil and criminal law in a way that detracts from the coherence of the legal system as a whole. Finally, the broad conception of appropriation collapsed the boundaries between obtaining property by deception and theft as well as attempted theft and the completed offence. With very few exceptions, instances of deception will be instances of theft, although not necessarily the other way around. . It is argued that post- Gomez appropriation is a direct breach of the rule of law and, in particular, the principle of fair warning in at least three ways.

First, in that it differentiates civil from criminal law. The recipient of a valid and indefeasible gift will not be certain whether her receiving the gift will be a criminal act. Secondly , in effectively removing the requirement of a harmful act or, indeed, the act requirement altogether, it constrains the ability of agents to reason practically, as they can never know the legal meaning of their actions. Thirdly, the conflation of theft with offences of deception violates the principle of fair labelling.

One ought to be held responsible for exactly what one has done and nothing more than that. At the same time, though, it is not clear what the critics of Gomez and Hinks look for. An 'assertion of dominion', Clarkson and Keating tell us but what exactly may this refer to? Or is it something more closely resembling dishonesty or the intention permanently to deprive? If this is the case, if that is the kind of 'value' that we look for in appropriation then we clearly end up collapsing the actus into the mens and there is nothing left for the latter to do.

Unless we are to completely reject the TA 1968 conceptualisation of theft as an utter failure precisely because it confuses acts and intentions. So the debate has been framed as one relating to the boundaries between objectivity and subjectivity, and, subsequently, those between the actus reus and the mens rea of theft. What is implied by this way of asking the question is that the conduct element is necessarily objective, that is independent of the mind of the defendant, whereas culpability is mind-dependent. However, this is not necessarily the case. The objectivity of acts is not the same as their factuality.

The latter can very well be subjective, in the sense that it refers to mental states rather than occurrences in the physical world. What is crucial in my conceptualisation of the act of appropriation is that we are still well within the factual realm of the act. The proprietary attitude towards the thing is not part of the culpable subjectivity of the appropriator. And this is precisely where most judicial decisions and theorists are mistaken. The misleading direction was given by Lawrence and made much of the debate revolve around whether the appropriation is lawful or not.

This resulted in criminal lawyers seeking a residue of value in appropriation and in conclusions such as Lord Keith's in Gomez, namely that the jester, who switches labels as a joke, does not commit theft, because he is not being dishonest and does not intend permanently to deprive the owner of the thing. With the conception of the act of appropriation as including a factual subjective element, recourse to the mens rea is unnecessary. The jester in this example does not simply not steal, he never even appropriates. I would therefore suggest that there has never been a genuine disagreement.

The re-conceptualisation of appropriation as entailing a factual proprietary subjectivity sheds new light on the arguments exchanged. On the one hand, the thesis from the objective description of the act of appropriation is reinterpreted as requiring a description of the act without reference to culpability and not a description simply with reference to visible or otherwise sensibly identifiable facts. The factual nature of the proprietary subjectivity satisfies that requirement.

On the other hand, those who seek a subjective element appear to have in mind precisely this proprietary subjectivity rather than an element relating to the moral responsibility of the actor. Similarly, the dicta in Morris are, after all, in line with Lawrence, Gomez, and Hinks. It transpires that consent is not salient to the question of appropriation. Even when the victim provides consent, such as in Lawrence, Gomez, and Hinks, the defendant has indeed appropriated, as she possesses with proprietary subjectivity and appropriation does not have any normative entailment. One can appropriate, even when one acquires property honestly and lawfully, although these do not necessarily go hand in hand.

Although proprietary subjectivity will normally emerge with acquisition of property it is possible that there be a discrepancy. This is the case, when, for example, one does not know that he has become the owner of something But even where there is no consent, it is not necessary that there is appropriation in the absence of proprietary subjectivity. In terms of what exactly distinguishes the mens rea from the actus reus I do not believe that there is any problem in telling apart appropriation with the added requirement of proprietary subjectivity from dishonesty.

Dishonesty may have plenty of problems of its own but overlap with appropriation is not one of them. In cases such as Gomez and Hinks, it is not a question of whether the defendants appropriate. The real problem lies with one of the reasons behind the appropriation, namely the consent of the owner. If the consent is misguided and the defendant is responsible for that, as was the case in Gomez and presumably in Hinks, then their behaviour is indeed morally and legally unsound and should be dealt with by the criminal law.

But, as has been emphatically pointed out, the right way of doing so was not with the offence of theft but that of obtaining property by deception. And, despite the argument that civil and criminal law have different foci and aims, there is no apparent reason why cases like Hinks should be treated any differently by civil law than they are by the criminal law. This is probably what distinguishes Gomez from Hinks. In the latter, it does not seem that the victim had been deceived but rather that he was not entirely capable of exercising his reason and judgment. If that is the case, Gomez should never have been authority for Hinks.

Conclusion It is quite clear that the broad view of courts with regard to the concept of appropriation which arose through case law and statute has over the time rendered the offence of theft as extraordinarily one. The paucity of analysis in some of the cases has led to apparent inconsistencies. However they can be reconciled if the view presented above is adopted. The solution lies in a more objective approach to appropriation. D must not only intend to assume the owner's rights he must do something which shows that he intends, however temporarily, to exercise dominion, to treat himself as owner.

Although the suggested test may be criticised on the ground of its imprecision, it is in line with the concept of tortuous conversion where the courts have some discretion in determining whether D's acts show a sufficient exercise of dominion to be regarded as a conversion. At least the courts are given the opportunity to deny 'appropriation' in ambiguous situations where injustice is entirely possible, without doing violence to the statutory wording or, indeed the existing case law. Or omit to do something in the case specifically dealt with in the concluding words of s3(1).