Lord Hobhouse dissenting on this judgement favours the case of R v Mazo (1996) where the gift was valid and appropriation did not take place. Professor Smith regarding Hinks stated, “The decision leaves the law failing to perform a basic function of identifying with precision what constitutes to be the actus reus of theft.” This is reflected in the case of Gomez (1993) where the consent of the owner is immaterial which is bound to cause a chorus of disapproval. Firstly this expansive definition does not match the aims set out by the Criminal Law Revision Committee who proposed only unauthorized acts are taken into account in terms of appropriation; this is clearly evident in the dissenting speech of Lord Lowry in Gomez. However now, due to this broad definition, a person can be found guilty under the Theft Act 1968 even if consent was provided. This is illustrated in the case of Kaur v Chief Constable of Hampshire (1981). This suggests that the law provided in Gomez is unsustainable and is used in the above case of Hinks where even receiving valid gifts can be appropriation.
Under appropriation there also seems to be an overlap between civil and criminal law. Civil law deals with ownership, possession and passing of property. The civil framework is based on land law, gifts, succession and intellectual property issues. As a result of the wider interpretation of s3 appropriation, there is obvious tension between civil legal rules and the meaning of appropriation in criminal law. A civil law court will say that a gift is a valid gift of property. However this will not prevent a criminal court from stating that the defendant had still dishonestly appropriated property belonging to another and therefore, could be guilty of stealing it - (Hinks). This reflects the broad definition in Gomez which makes a conduct criminal even when it would not amount to a civil wrong. This relates back to the fact mentioned in the very beginning of this essay; the idea of this offence was for it to be simple and easy to understand so that ordinary people could have access; however it clearly fails in doing so. This creates a huge impact as for example, theft is a property offence and ownership of a property is a civil concept. However due to the wide-interpretation in Gomez, it seems that the defendant appropriated property even though the victim is giving it willingly – here obvious problems rise in consensual appropriation. It also suggests that the criminal law is dependent on civil concepts of ownership, possession and passing of property.
Another problem with the property offence is the mens rea for the Theft Act 1968 which is formed under section 2 and 6. Dishonesty under section 2 has not been given a clear definition; it merely states what is not deemed as dishonest, for instance under section 2 (1) (a) it states that a person is not dishonest if the defendant believed they had a right in law. Section 2 (1) (b) states a person is not dishonest if he believes he would have the other consent and section 2 (1) (c) states that a person is not dishonest if the owner can not be discovered by taking reasonable steps. Clearly this leaves the courts to develop an approach to the wide-interpretation of dishonesty as it only eliminates three factors from the possible range of section 2. This is because the Criminal Law Revision Committee believes that ‘dishonesty’ is easily recognized and should therefore be treated as an ordinary word. This leaves gaps in the law as judges and magistrates may have to deal with cases such as alleged business fraud, in which instance they may be unfamiliar with – therefore it would be hard to treat the word ‘dishonesty’ as ordinary which may leave them perplexed as to how to apply it to the situation.
Consequently not defining the mens rea of an act leaves visible holes in the law, where the judge and jury are left to decide what is dishonest based on the subjective and objective test, known as the Ghosh test. This strongly suggests that change is much needed, for instance; providing a definition for the section 2 act which would undoubtedly resolve ambiguity. The Ghosh test is much criticised as responsibility rests upon the jury and as a result provides inconsistent results, which occurs depending on the setup of jurors. Therefore a proposal could be taking authority away from the jury into the hands of law and bring back consistency whist also getting rid of discrimination.
Section 6 has said to be needless as a part of theft by its sternest critics. It makes it harder for the defendant to be liable as intention is needed to ‘permanently deprive’. In the case of Lloyd (1985) this proved a problem as the defendant was dishonest and satisfied the actus reus as he took the film reel to make copies. However he was not liable for section 6 as he temporarily deprived the owner of the property. As stated by Lord Lane CJ “a mere borrowing is never enough to constitute the necessary guilty mind unless the intention is to return the “thing” in such a changed state that it can truly be said that all its goodness or virtue has gone.” Conditional intent proves to be the same as all the other elements of theft can be proven, however if there is nothing valuable to take then there is no theft as stated by the Court of Appeal in R v Easom (1971) that, “a conditional appropriation will not do’.
In conclusion the law on theft has proven to be unsatisfactory. This is partly due to broad interpretations of Appropriation under s3 of the Theft Act 1968 where consent is irrelevant, and the definition of Dishonesty under s2 where it is unclear as to what can be judged as dishonest. This makes it hard for courts to use the law and leaves an element of improbability. Moreover it is evident that s6 is ambiguous and sometimes harsh as seen in the case of Lavender (1994). The law in its existing state has caused vagueness and at times injustice in which reform of the law is very much needed.
