How satisfactory is the current law on theft

The main purpose of the law of theft is to make members of the public feel secure in possession of their property. The Theft Act 1968, although does this quite well, has many flaws in it.

Regarding the element of appropriation there are mixed weaknesses and strengths. Firstly you can appropriate your own property if it is in control or possession of another. This is generally a good thing. For example in the case of Turner he took his car to be repaired and later drove it off the forecourt without paying for the services. Because it was in control and possession of the mechanic he had stolen his own car.

A confusing element of this element is the mixed definitions of appropriation. Section 3 (1) of the Theft act 1968 defines appropriation as assuming the rights of the owner. Morris says that appropriation must be unauthorised to fall within the meaning of theft and in Gomez the Law Lords came to a very wide, perhaps too wide definition, saying that it was help to mean an assumption of any of the rights of the owner, even if the owner consents. There for if D takes an item from a shop shelf with the intention to avoid payment but before doing so his conscience kicks in and he puts it back he puts it back. In this case he will still be found guilt although technically they have not stolen anything.

However according to Hinks consent of the owner is irrelevant, causing a conflict between civil and criminal law. Because of this even a person who accepts a gift can be treated as appropriating property belonging to another. Possible reform for this may be to follow the civil case of Mazo where the courts held that no theft could take place if a valid gift had been made.

The second element of the actus reus is property and this seems more satisfactory that other elements. Firstly the Theft Act 1968 defines property in a suitable broad way, including both real and personal property, intangible and tangible property, as a result gives the public as much protection as possible.

On the other hand it does not include confidential information as in the case of Oxford v Moss. The victim may lose out financially due to a secret being stolen, for example if somebody had a draft for a very good novel and somebody took the paper it was on with the intention to return it undamaged after making there own copy and sold it as there own making millions, they would not be liable for theft.

Belonging to another is also defined quite widely as meaning anybody with ownership, possession or control of the property. One advantage of this has already been looked at in the case of Turner. A further strength is that there is a distinction between lost property and abandoned property as in the case of Small where D found a car which had been left at the road side for two weeks, had no petrol in it and the keys had been left in the ignition. He assumed it too be abandoned and had taken reasonable steps to locate the own and there for was acquitted.

This element is also useful when protecting businesses when it comes to money. It protects people who are in partnerships as the law sees both people to own and have control of the money therefore it can not be spent of taken with out both people consenting to this. Attorney General’s reference (number 3 of 1983) (1985) states that if someone is paid too mush, in this case �286,000 rather that �286.000, an realises this but dint return the money they will be guilty. Furthermore, if a legal transaction takes place but you are obliged to deal with it in a certain way and do not this will also be theft (Davidge and Bennett).

The two elements of the mens rea of theft, Intention to permanently deprive and dishonesty, are not actually defined in the 1968 Theft Act, consequently not allowing judges to relate to the statute on these maters.

Regarding the intention to permanently deprive is it about the passage of time i.e. how long you keep the property, or about taking the goodness i.e. the value, out of the property. Three cases may actually help to some extent but all have actually come up with a different conclusion. Lloyd, who took films from the cinema and returned them unchanged, said that all the value must be rendered to be theft. Bagshaw, who borrowed gas cylinders and returned them after using some gas, said that most of the value must be rendered. Lavender, who took council door from one flat and put them on his girlfriends council flat, too one step further to say only some value must be rendered. A simple reform, suggested in the case Gianville Williams, would be to remove the word permanently to save confusion and then the defendant would simply have to deprive the victim of something.

Dishonest has no definition but we do have the Ghosh Test to help juries if needed. This test is very confusing. It is a two stage test with an objective part and a subjective part to it, both need to be confirmed for the defendant to be found dishonest. However the objective part is not really needed as the subjective part can override it.

From this you can conclude that the law on theft may need some reform to improve it. It is clear that is does work, maybe not as well as it should though. The actus reus has mixed weaknesses and strengths with the element of belonging to another being very positive. However the mens rea needs a great deal of reform.

(b) In your view, how satisfactory is the current law on the deception offences? (25 marks)

The deception offences are obviously there to stop people being dishonest. There are many offences in this section; each one can be looked at critically.

They main key to these offences is the element of deception, which at first glance looks quite positive. The law covers situations where a deception may result in no other charge arising. It is widely drawn and can involve words, conduct and even omissions e.g. in the case of DPP v Ray. However it has been made clear that you can not deceive machines (which can be covered by theft or going equipped for theft). This may involve using a credit card which is not your own at a cash point as in the cases of MPC v Charles and Lambie. Suggested reform to solve this problem may be to take the issue of credit cards out of the criminal law and allow it to be solved in the civil law, e.g. a civil mater for the banks in these two cases.

Another point that needs addressing is whether the deception needs to be relevant to the crime or whether there just needs to be a related deception. It appears that Laverty did not lead to a conviction as the buyer of the car did not rely on the deception in order to purchase. In the other two cases there appears to be no concern about the deception, only that there was one to hold a conviction. This has led to inconsistent rulings.

Dishonest has no definition but we do have the Ghosh Test to help juries if needed. This test is very confusing. It is a two stage test with an objective part and a subjective part to it, both need to be confirmed for the defendant to be found dishonest. However the objective part is not really needed as the subjective part can override it.

With the offence of obtaining property by deception there is an unsatisfactory overlap of the offence with theft since the decision in Gomez i.e. that each section 15 offence will also amount to theft. The straightforward way to solve this problem would be to re-draw the distinction between the two offences.

This applies even where consent is present. In Preddy it was held by the House of Loads that giving false information to obtain a mortgage was not a section 15 offence as the property i.e. the mortgage, has not been passed to the defendant. The law commission have suggested introducing the offences of obtaining a money transaction by deception which would cover this issue. This became an amendment to the Theft Act (1996).

The problem with the offence of obtaining services by deception is that it needs to cover situations where there is no obvious property involved, e.g. a haircut. Services are provided on the basis they will be paid for and for a conviction the deception takes place before the services are provided. But ‘gratuitous’ services are not included in this definition, which is where misrepresentation tends to lead to a free service being given, usually a mortgage.

It is also difficult to understand the ways in which tree offences would apply to evading liability by deception. There is an overlap between section 1 (a) and section 2 (b) as both are based on existing liability to make payment. Only section 2 1(b) involves the idea of an intention to not make payment a. Maybe they should consider abolishing section 2 and use the civil to pursue liability.

When it comes to making off payment there must be an intention to avoid payment permanently as in the case of Allen (1985). In this case it was obvious that the defendant intended to pay at some point as he left his belongings, including his passport, at the hotel and phoned explaining that he would pay his bill as soon as the money from his business came through. However in other situations it may be difficult to establish and it requires a view about future intentions.