Critically analyse whether the House of Lords in Hinks (2000) were right to find that the acquisition of the indefeasible title to property is an appropriation of property belonging to another for the purposes of s1(1) Theft Act 1968.

Criminal Law Coursework

The law of theft expresses society’s view of the extend to which property rights ought to be protected. It is extremely difficult to draw the line between what is acceptable and what should be subject to criminal sanctions. Therefore, in some cases the judge’s decision can be questionable and it can be argued that the courts have drawn the line in the wrong place. Hinks falls into this category.

Can a person “appropriate” property belonging to another where the other person makes him an indefeasible gift of property, retaining no proprietary interest or any right to resume or recover any proprietary interest in the property? Incredibly, following the decision of the House of Lords in Hinks, it appears that the person may even steal the property which indefeasibly belongs to him, it being sufficient that before it became his property or belonged to another and the person is considered to be dishonest in accepting the property.

The decision of the House of Lords was based on 2 cases DPP v Gomez [1993] A.C.442 and Lawrence v M.P.C.[1972] A.C.626 In both of those cases the consent of the owner has been obtained by deception. In Gomez, the title the defendant obtained to the property by means of a false representation he took from the shop was voidable to the deception, the same applied in Lawrence. In Hinks, the majority of judges took the view that judgments in Lawrence and Gomez “did not differentiate between cases of consent induced by fraud and consent given in any other circumstances”(Lord Steyn) and that it is irrelevant whether the act was done with the owner’s authority or consent.

As a result, there are several conclusions that can be drawn from Hinks as to the present meaning of appropriation.

First of all, there need not to be an assumption of all rights of the owner to amount to appropriation

Secondly, there is an appropriation when he/she obtains property by deception even if the owner of the property consents to the transfer.

Thirdly, it is irrelevant that the person receiving the property acquires an indefeasible right to the property.

The main objection to the reasoning of the House of Lords is that it confuses the boundary between the criminal conduct and merely immoral conduct which involves no inherent illegality, it contradicts section 2(1) 3 and 6 of the Theft Act 1968

This is a preview of the whole essay

A donor making a valid gift diverts himself of all title to the property gifted in favor of the donee S.2 1) a. A person's appropriation of property belonging to another is not to be regarded as dishonest if he appropriates the property in the belief that he has in law the right to deprive the other of it The donee in accepting the gift receives her own property to which she has indefeasible title-she is the owner so there is no assumption.S.3 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. She is not supplanting the owner or arrogating herself to any rights, which the owner has not transferred to her. S. 6A person appropriating property belonging to another … is to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other's rights; The concept of appropriation has become “wholly colorless” Lord Hobhouse. Any dealing with property or any exercise of a right of the owner (even the exercise of that right of the owner’s authorization in a situation where the owner has full knowledge and there being no circumstances which might render the transaction void able) amounts to appropriation.

An appropriation has become neutral, value-free act with the mental element of the defendant being irrelevant. This description ignores the definition of appropriation in section 3(1) that it must involve an assumption by a person of the rights of the owner.

For example picking up a dropped purse to hand it back to the owner is assuming the rights of the owner and therefore amounts to appropriation.

Similarly, following Hinks persons who have done nothing wrong yet but have secret dishonest intensions should be liable for theft. For example, the defendant in Eddy v Niman took goods from the shelf in a store and placed them in the trolley, intending not to pay for them. This would now be an appropriation and because of the mens rea -theft.

What is more, the decision created a conflict between the criminal law and the civil law. It now means that what the civil law permits can constitute to a crime under the Theft Act therefore, it is possible to convict a person of theft of valid gifts on the basis solely of the jury’s view of dishonesty.

“It is surely intolerable that the performance of a perfectly valid contract should be a crime”-Smith (2001) Crim.L.R.163 at 165.

However, it has been argued that correspondence between civil law and criminal law is simply not possible because civil courts are not well placed to establish dishonesty and as a result determine liability for theft and, similarly, criminal courts are unable to determine whether a valid title has been acquired.

The problem with this argument is first of all that the law of theft is to protect person’s interests in property, which can only exist at civil law. Also, civil courts do have to decide questions of dishonesty (Twinsectra Ltd v Yardley (2002) 2 All E.R. 376) and criminal courts- questions of civil law (e.g. In relation to “belonging to another’ under s 5 of theft act 1968).

Another argument in favor of Hinks decision is that when a conduct has a ‘tendency to undermine property rights, either directly by attacking the interests that they protect, or indirectly by weakening an established system of property rights and so threatening the public good that that system represents’-Shute “Appropriation and the Law of theft” {2002} Crim.L.R/445 at445 it is perfectly legitimate to criminalize that conduct. However, law of theft should be aimed to protect existing property rights, which can only be established by reference to the civil law.

In conclusion it can be said that when the Criminal Law Revision Committee in its 8th report ‘Theft and related offences’ framed the concept of dishonest appropriation it was believed that the concept can be easily understood and does not need further definition. However, it is very difficult to believe that the ruling of the House of Lords in Hinks bears any resemblance to the legislature’s understanding of this concept

Question 2 –case study.

Criminal Law’s general regulation of fraud and deception is catered for by sections 15 and 16 of the 1968 Act, which constitute offences of dishonestly obtaining property belonging to another or a pecuniary advantage by deception. In 1978 s 16 was replaced by the offences of dishonesty obtaining services by deception and evading liability by deception (Theft Act 1978, S.1 and S.2). The 1978 Act further created on offence of dishonestly making off without payment. There are certain situations where the person obtains services or property, or seeks to evade his liability to pay, which do not fall within the offence of theft or the deception offences. S 3 of the Theft act 1978 was enacted to cover situations such as these where a debtor, seeking to avoid paying his debt, removes himself from the scene where the liability was occurred.

There are several offences in this case study that need to be discussed. These offences vary in seriousness and therefore in punishment.

To begin with, Adam obtained Bobs labour by deception as to payment. He agreed on the cost of Bob’s service and when the work was completed Adam paid by cheque backed with a guarantee card even though his bank account had been closed one month earlier. He is, therefore, liable under S.1 of the Theft Act 1978 of obtaining services by deception.

A person who by any deception dishonestly obtains services from another shall be guilty of an offence. It is an obtaining of services where the other is induced to confer a benefit by doing some act, or causing or permitting some act to be done, on the understanding that the benefit has been or will be paid for. The elements of the Actus Reus are that Adam 1) by deception 2) obtained 3) services. The Mens Rea of the committed offence is that the deception was deliberate and Adam’s obtaining of the property was dishonest.

This offence is punishable with up to 5 years’ imprisonment following conviction on indictment and, following summary conviction, with up to 6 months’ imprisonment and/or fine of up to 2000 pounds

The bank may be legally bound to honour the cheque even though Adam’s authority to use the card may have been withdrawn. If the cheque is not honoured, Bob may sue Adam on the cheque.

However, it needs to be taken into account that Bob used a false advertisement in order to attract clients. The advertisement clearly stated that the company was established in 1882 by royal warrant when in fact the company was started 6 months ago. Therefore, it can be argued that Bob deceived Adam by making a false statement. If Adam knew the truth he might have not entered into the contract. It is debatable though, whether Bob committed an offence of obtaining property by deception (money for his services) as he claims that he genuinely believed that he could do the work as well as any fully qualified decorator and had done so.

Secondly, Bob is legally responsible of committing a less serious offence, which does not require proof of deception. When Bob makes off from the place where he obtained a property and where payment was due by simply driving away from a self-service petrol station he commits an offence under the S.3 of the Theft Act 1978.

A person who, knowing that payment on the spot for any goods supplied or service done is required or expected from him, dishonestly makes off without having paid as required or expected and with intent to avoid payment of the amount due shall be guilty of an offence. For purposes of this section "payment on the spot" includes payment at the time of collecting goods on which work has been done or in respect of which service has been provided.

If the same situation occurred in 1976 (e.g. Edward v Ddin 1 W.L.R. 942) he would have been convicted of theft under S.1 of the Theft Act 1968.

The elements of the Actus Reus under section 3 are:

Goods supplied-bob was permitted to fill his petrol tank at a self-service` petrol station

Without having paid as required-Bob shouted that the attendant should charge the cost to the company account with which he has no connections- a deliberate deception, bob is aware of the falsity of the statement and knows that the victim may believe in its truth

Makes off the spot-it is irrelevant that bob might have obtained the attendant’s consent to him leaving criminal liability would depend on other factors such as dishonesty

The mens rea required under section 3 is that knowing that the payment was expected from him the Bob makes off dishonestly with intends to avoid payment.

This offence is punishable on conviction on indictment with up to 2 years imprisonment S.4) b, and on the summary conviction with up to 6 month’s imprisonment and/or a fine not exceeding 2000 pounds S.4 3).

If the same situation occurred in 1976 (e.g. Edward v Ddin 1 W.L.R. 942) he would have been convicted of theft under S.1 of the Theft Act 1968.

The critical element that sets deception offences apart from theft is that the owner of the property voluntarily parts with it, even if as a result of the deceit of the defendant. However, after DPP v Gomez [1993] and R v Hinks [2000], the overlap between theft and deception has significantly increased. Now most cases involving deception can be prosecuted as theft.

Bibliography.