In Morris, Lord Roskill asserts that ‘…the concept of appropriation involves not an act expressly or impliedly authorised by the owner but an act by way of adverse interference with or usurpation of those rights’
The situation is not entirely clear from Lawrence and Morris, however, the clarification can be found in R v Gomez [1993] 1 All ER 1(HL) where it was held that ‘While it was correct to say appropriation included an act not expressly or impliedly authorised by the owner but an act by way of adverse interference with or usurpation of the owner’s rights, it did not necessarily follow that no other act would amount to an appropriation and in particular that no act expressly or impliedly authorised by the owner could do so. Lawrence was a clear decision to the contrary since it laid down unequivocally that an act might be an appropriation notwithstanding that it was done with the consent of the owner. The actual decision in Morris was correct but it was erroneous and unnecessary to indicate that an act expressly or impliedly authorised by the owner could never mount to an appropriation.’
Angela’s will no doubt seek to distinguish Lawrence and Gomez on the basis that the victims of the thefts were conned by the defendants and in this case Duncan chose to give her the books. This arguments may well have succeeded in the past, however, since the House of Lords decision in R v Hinks [2000] 4 ALL ER 833. In this case, reference was made to the summing up of the judge during the trial of Ms Hinks. He stated that ‘…you must be sure…she acquired it and treated it as her own to deal with. That can include…a straight forward taking or transferring of the property concerned. It can also include acquiring it by way of gift, either for herself or on behalf of her young son.’
It was held in Hinks that a person can appropriate goods from another even though the person consented to the appropriation.
Lord Hobhouse, however, states in his dissenting speech in Hinks ‘the reasoning of the court of appeal…depends on the disturbing acceptance that a criminal conviction and the imposition of custodial sanctions may be based upon conduct which involves no inherent illegality and may only be criticised on grounds of lack of mortality.’ It may be that, assuming that Duncan has no handicap in respect of intelligence (as Mr Dolphin did in he case of Hinks), the transfer of the books to the possession of Angela would be deemed valid. This issue is not clarified by Hinks.
Since the emphasis on cases such as these since Hinks is on deception, if Angela was of the honest belief that she had a right in law to deprive Duncan of the books, she would not be guilty of the theft. Angela may seek rely upon section 2(1)(b), stating that she was of the honest belief that Duncan would have consented to her taking the property (as he did, since he gave them to her). However, she will have difficulty with this argument, as Duncan clearly would not have consented had he been aware of all the circumstances. This is clear, as when he became aware that Angela thought he was stupid he chose never to give her any more books and further, took the books back.
If it is decided that Angela did appropriate the books, the second issue to examine is that of dishonesty.
According to R v Ghosh [1982] QB 1053, Angela will be dishonest if ‘…according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails. If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest '
Angela clearly had intention to permanently deprive Duncan of the books since she took them to be valued and therefore if the prosecution establish dishonesty she will be guilty of theft.
(b) Deception
The prosecution may consider the possibility of charging Angela with section 15 of the Theft Act 1968, obtaining property by deception. I would advise against this course of action, as support of such a charge of Theft can be found within case law. Difficulty way well be found in proving that Angela acted dishonestly before Duncan gave her the first book as a gift. Also, there is no evidence that she makes any positive statements that mislead Duncan. The prosecution would rely on deception by conduct, which may not have the persuasive element that a charge of theft would have.
2. Duncan's liability in respect retrieving the books
In removing the books from Angela’s car Duncan appropriates property belonging to another due to the fact that even though Angela appropriated the books, her possession of them makes Angela a valid owner of them according to civil law. The fact that she may be guilty of the theft of the books from Duncan does not remove any liability from Duncan in taking them back. It is clear that as Duncan was taking the books back from Angels, his intention was to permanently deprive her of them. The only issue to address in relation to Duncan’s liability is dishonesty. According to section 2(1)(a) of the Theft Act 1968, ‘a person’s appropriation of property belonging to another is not regarded as dishonest if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or a third person. Due to the circumstances surrounding the book, Duncan may well be acquitted by a jury on the basis of a belief that he was entitled to retrieve the books upon discovering Angela’s dishonesty. The ruling in Ghosh supports this argument.
