Consider Vera’s criminal liability

  The concept that the term ‘rights of an owner’ need not be applied in whole, so therefore can be appropriated in part, is further reinforced by Morris, who with an accomplice, switched the price labels on two items, with the intention of purchasing the more expensive item at the cheaper price.  In doing so Morris, as discussed in Lord Roskill’s judgement, usurped one of the ‘rights of an owner’ and took it for his own. This was followed in Gomez by Lord Keith, who stated, “Any assumption of any of the rights of an owner can amount to an appropriation.” 

 Thus it can be seen that in being given the keys to Jack’s house and car, Vera had consentually acquired some of the ‘rights of an owner’, this then leads to the questions concerning Vera’s conduct, and the intention behind it. For an offence contrary to the Theft Act 1968 to be satisfied, there has to be as already discussed, conduct that amounts to  (1) an appropriation, (2) of property (3) which belongs to another, in addition it is necessary to prove the required mens rae; Ashworth, defines these as: (1) An intention of permanent deprivation; and (2) dishonestly. Though Vera’s acquisition of some of ‘the rights of an owner’ was with Jack’s consent, the courts have on occasion viewed the circumstances of acquisition and appropriation in a dishonest light. The cases of Mazo and Hinks both go to show how the courts belief in honestly and dishonestly formed intention can make the difference between acquittal and conviction.

 Therefore, when considering Vera’s actions, they must be examined in both terms of conduct and intention; with reference to Vera entering Jack’s house and finding the already opened letter from the Lottery Operator, in reading it, her intentions may be seen to be somewhat dubious; if Smith and Jones were to be considered, she would have certainly exceeded the ‘general permission’ given to her by Jack and potentially liable as a trespasser. In Gomez, House of Lords, their Lordships inferred that interference with the property of another would amount to appropriation, regardless of whether the owner consented or not (in Gomez, it was consent that had been obtained by deception, rather than actual property). However the Court of Appeal in Easom, stated, “a conditional appropriation will not do”. Thus as no material appropriation of Jack’s property took place, at its worst, Vera’s conduct could, had perhaps she had the expectation of finding a cheque and taking it for her own use give a potential liability for an Inchoate Offence contrary to s1(2) of the Criminal Attempts Act 1981; but it would be difficult, in light of Easom, for the prosecution to substantiate the necessary mens rea and actus reus for liability to be fixed. Vera’s position regarding her reading of Jack’s letter is further mitigated by Oxford v Moss, where the courts held that confidential information acquired, does not constitute property under s4(1). Under these circumstances, Vera’s reading of Jack’s letter should be viewed as nothing more sinister than misguided curiosity.

    With reference to Vera’s ‘borrowing’ of Jack’s Man City season ticket, the courts have struggled with s.6, especially the problems posed by the wording in s.6(1), which depending on application, would at times appear to conflict with s.2 (1)(b). It would seem that the line drawn between honest intentions as provided by s.2(1)(b), and the dishonest appropriation as described in s.6(1) is a very thin one, when does a ‘borrowing’ or temporary appropriation become a permanent deprivation. The difficulties are further compounded by cases such as Morris. Ashworth, voices the following opinion, “Morris holds that D does not have to intend permanent deprivation by the act of appropriation; he may intend to deprive by some act in the future.” This coupled with ‘the assumption of any of the rights of an owner’ gives cause for concern that the criminalization of conduct can occur even when ‘borrowing in good faith’ or in circumstances as described in s.2(b). Obversely, in R v Lloyd,, AC, Lord Lane stated the effect of s6.(1)  that: “A mere borrowing is not 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”. When Lord Lane used the word ‘all’, he implied the unlikelihood of ‘borrowing’ amounting to theft. Thus it can be seen that Vera’s use of Jack’s season ticket to watch Saturdays match is problematic. In Lloyd, the court held that there was failure to establish an intention to deprive, that amounted to an outright taking, as s6(1) requires, as from the outset there had always been the intention to return the property to its owner. Therefore following the Lloyd test, it would be difficult to pursue a prosecution under s1. In addition, as Jack and Vera are old friends, it could be reasonable to conclude that Vera honestly believed that Jack would have no objection to her using the season ticket while he was on holiday. However, in the event of such a prosecution, Vera could seek to rely on the defence provided by s2(1)b, it would then be for the court to apply the two stage ‘Ghosh Test’ to determine the issue of her honesty.

   The issue of intention to permanently deprive has, by necessity, been more stringently addressed in regard to ‘car theft’. A large percentage of stolen cars are abandoned, then recovered and ultimately returned to their owners. Therefore s12 of the Theft Act1968 allows for the offence of taking a motor vehicle or other conveyance without authority, and does not require an intention to permanently deprive. This is further qualified in s12(1), by the wording “he takes any conveyance for his own or another’s use”.

   As previously discussed, Vera may have consensually appropriated some of Jack’s ‘rights of an owner’, however when she drove to London in Jack’s car she exceeded the ‘general permission’ implied within those rights. That she took the car for her own use, contrary to her duty of care as bailee, and without jack’s authority, could potentially lead to prosecution under s12(1). The case of McKnight v Davies amply illustrates the courts interpretation of what amounts to ‘without authority’ and what constitutes ‘ a taking for her own use’. In Vera’s defence, s12ss6, as in s2(b), does provide a defence of honestly held belief. However once again, the courts would consider this in the light of evidence and how such evidence relates to the subjective two-stage approach laid out in Ghosh.

   The issue of Vera selling Jack’s car to Roy, amounts to an outright disposal and permanent deprivation of Jack’s property. She may honestly have held the belief that she was acting in Jack’s best interest, but her intention to keep £200 from the proceeds somewhat negates this assumption. The case of Fagan illustrates the concept of the possibility of the necessary mens rea being superimposed following an exiting act. Her decision to keep the £200 could place her in jeopardy of prosecution.

    In conclusion, Theft is an act of dishonesty, this when viewed in context with the rights of an owner give a perspective on the difficulties inherent in interpreting the Act. Vera’s conduct though at times would appear to be somewhat naive, can generally be plausibly excused by the defences provided in s2(b) and s12ss(6), when the Ghosh approach is applied. However, in choosing to keep the £200 she has clearly performed the necessary conduct and fault elements for the complete offence contrary to s1, of The Theft Act 1968. She could under the circumstances attempt to reimburse Jack, for the £200, but she would still be potentially liable contrary to the qualification set out in s2(2) of the act.      

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Bibliography:

Ashworth, A. Principles of Criminal Law. 3rd Ed, (1999), Oxford University Press, New York.

Hogan, P. & Smith, J. Criminal Law, 9th Ed, (1999), Butterworths, London.

Hogan, P. & Smith, J. Criminal Law, Cases and Materials 7th Ed, (1999), Butterworths, London.

Glazebrook, P. Statutes on Criminal Law, (2001-2) 11th Ed, Blackstone Press, London.