In each case the belief does not have to be reasonable. Simply an honest belief will suffice. For example a belief that you could not trace the owner by taking reasonable steps is a sufficient defence, you do not actually have to take reasonable steps to find the owner. Thus it is a subjective question, it is your belief that is important, but you have to get a jury to believe it was an honestly held belief and so the less reasonable it is the harder it will be to convince them you honestly believed it.
As well as these the courts apply what is known as the Ghosh test to both the above and to situations which fall outside the section. It comes from the case of R v Ghosh 1982, and has two questions for the jury to answer: Firstly was the defendant dishonest by standards of ordinary reasonable people? And secondly did the defendant realise his actions would be regarded as dishonest by ordinary reasonable people? If the jury can answer yes to both questions then the defendant is found to be dishonest.
In cases where dishonesty is part of the mens rea, the authorities have tended to support either a very subjective, or a very objective view. A demonstration of the subjective approach is seen in R v Landy 1981, where the judgement of the Court of Appeal was that the jury should be directed to `look into the mind of the defendant' to determine whether he was acting honestly or not. There was little discussion here about objective standards of honesty. In effect, so long as the accused believed himself to be acting honestly, whatever other people would think, that was enough to defeat a charge of dishonesty. On the other hand, in R v Greenstein 1975, it was specifically stated that the jury should not attempt to use the accused's own standards of honesty to judge him, or else ``everybody accused of dishonesty, if he were to be tested by his own standards, would be acquitted automatically''. Clearly cases like this are in some conflict with cases like Landy.
The actus reus of theft has three elements: ‘property’, ‘appropriation’ and belonging to another. The question asks to analyse the meaning of the word appropriation within the Theft Act 1968. Appropriation is stated under section 3 of the Theft act 1968, as being:
‘Any assumption by a person of the rights of an owner amounts to an appropriation, 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’
So therefore appropriation means doing something with the property that the owner has a right to do, but which no one else has the right to do without the owners permission. This is not limited to physically taking the property, it could include selling, keeping, damaging, destroying or extinguishing the property. In R v Morris (1983) it was stated that assuming any one of the owners rights is sufficient to amount to appropriation. Although this case has been overruled on another point of law, it is still good law on this issue.
A situation, which caused some problems for the courts, was where a defendant assumed some right of the owner, but with the owners permission. This posed a question of whether this was an appropriation. If the person has the owners permission then the common sense answer would be that it is not appropriation. However the case of R v Lawrence 1971, shows that it is a lot more complicated. In this case An Italian student took a taxi ride for which the proper fare was about 50p. He offered the defendant a £1 note, but the defendant said more money was needed and proceeded to take a further £1 note and a £5 note from the student's open wallet. The defendant was convicted of theft and appealed unsuccessfully to the House of Lords. The defendant argued that he had not stolen the money because the victim had consented to its being taken by him. Viscount Dilhorne rejected this argument because the student only consented to the legal amount being taken and also the defendant's contention that he should have been charged under section 15 (obtaining property by deception) and not section 1.
However, when the question arose again, in R v Morris 1983, the House of Lords said that there could only be an appropriation where the acts of the defendant were ‘unauthorized’, in other words where the owner had consented to the defendants acts. In this case Morris took two items from supermarket shelves and replaced the correct labels with ones showing lower prices. He took the items to the checkout, paid the lower price and was then arrested. Morris argued that there had been know that there had been no appropriation on the basis that he had not assumed all the rights of the owner. However the House of Lords held that it was not necessary to assume all the rights of the owner, so long as at least one was assumed, and they agreed that appropriation had taken place. This decision appeared to be a direct conflict with the House of Lords judgement in Lawrence, as it was stated that: ‘Appropriation requires some ‘adverse interference’ with the owners rights which could not be satisfied if the owners consent had been given.
This conflict was eventually resolved in the case of R v Gomez 1993. In this case the defendant, an assistant manager of an electrical goods shop, lied to the manager of the store that two cheques presented by a friend were valid, with the result that £16,000 worth of goods were supplied to a rogue. The defendant and the rogue were convicted of theft. The defendant's appeal was allowed by the Court of Appeal but rejected by the House of Lords. In this case if Morris was followed no appropriation would be treated as having occurred, and therefore no liability for theft imposed. The House of Lords decided to opt for the principle established in Lawrence instead, Morris was thereby overruled on this issue and an appropriation can take place even if the assumption of the owner’s rights takes place with the owners consent.
