In assessing appropriation in theft the prosecution must prove (inter alia) that the accused “appropriated” property belonging to someone else. In law, appropriation essentially means:
“an assumption by a person of the rights of another”
The person who takes property belonging to someone else from their person or from their premises, clearly assumes the rights of the owner of that property as only the owner has the right to remove that property. This is the classic concept of theft. However, exercising any of the rights of an owner can be an appropriation. Such rights can include: Using, Selling,
changing price labels on goods as illustrated in the case of (Anderton -v- Burnside (1983) ) and finally damaging or destroying (this would overlap with the crime of criminal damage)
Appropriation can take place even in the following circumstances: where the accused is in possession of the property legally, where the accused is not in possession of the property at all
For example: R -v- Pitman & Hehl (1976). ‘A’ knowing that ‘B’ is out of town, takes ‘C’ to ‘B’s’ house and represents himself as the owner. He sells the furniture to ‘C’.
and also where the owner consents to the actions of the accused, Here there is often a ‘grey area’ between Theft and Obtaining by Deception.
Unfortunately, the Courts introduced a fundamental confusion in relation to appropriation under this head. Here, two House of Lords decisions contradict each other in Lawrence -v- The Metropolitan Police Commissioner (1972) the House of Lords clearly stated that an appropriation (and hence the theft) can occur even though the owner has permitted or consented to the property being taken.
and in R -v- Morris (1983), the House of Lords held that there had been an appropriation but in pinpointing exactly when that appropriation had occurred they stated that it was not when the goods were removed from the shelves as shoppers had the owners consent to do that and that appropriation required some adverse interference with the owner’s rights which could not be satisfied if the owner’s consent had been given. The latter does not acknowledge the contradiction:
The matter was further complicated because the Court of Appeal in the case of Dobson -v- General Accident Fire & Life Assurance Corporation (1989), a civil action, opted to follow Lawrence instead of Morris. It stated that it did not matter that consent to the taking of the property was given. Here Dobson sold some household goods to a 3rd party who paid by way of a stolen Building Society cheque. It was clear that Dobson consented to the 3rd party taking away the goods. He was insured against theft by the Defendants who refused to pay out on the basis of Morris - that as Lawrence had consented to the taking away by the third party, there could be no Theft. Judgment was given to Dobson.
However, the problem was resolved by the House of Lords in R -v- Gomez (1993): where the House of Lords opted for the Lawrence principle and Morris was overruled. Appropriation can, therefore, take place even if the assumption of the owners rights takes place with the owner’s consent.
Following on from this, however, is the question: “Can a person who simply accepts a gift be treated as having appropriated it”? The answer can possibly be “Yes”, depending on the circumstances. In R –v- Hinks (2000), a 53 year old man of limited intelligence had been left a substantial sum of money by his Father. The defendant, Hicks, had befriended the man and has been given by him, over a period of time, a total of £60,000. The prosecution alleged that the defendant had encouraged him to draw the money out of his Building Society account and deposit it in her own account. Her defence was that the money was a gift and as such she could not have ‘appropriated’ it. She was convicted of theft and her subsequent appeal to the Court of Appeal, Criminal Division was rejected. She appealed to the House of Lords who took the view (my a majority decision) that their decision in Gomez , treated appropriation as covering the fact that an owner consenting to the handing over of property was irrelevant and consequently appropriation could include the acceptance of a valid gift. Whereas this, at first sight, seems strange it does of course, depend upon the circumstances. A clear and genuine gift for a clear and genuine reason could never amount to theft because it would not have been accepted dishonestly. In the Hinks case the jury obviously found that that the acceptance (the appropriation) was dishonest as the gift was not a genuine one but one that had resulted from taking advantage of a person of limited intelligence.
In conclusion, appropriation means doing something with property that the true owner has a right to do, but which no one else has the right to do without the owners permission. As already mentioned, this can include, selling, keeping, damaging or destroying the property - it is not, therefore, limited to the physical taking of the property. However, where someone buys stolen property in good faith, but ownership does not pass to him because unbeknown to him the goods are stolen, that person will not be treated as appropriating the goods by later assuming the rights of an owner which he had believed himself to have acquired (s. 3(2) The Theft Act 1968).