There are other difficulties which arise from appropriation such as whether it is an “instantaneous or a continuing act” (Ashworth, 2006, p 367) and whether there is a time factor in appropriation. Through extensive debate it would seem that is it a continuing act and therefore time is not particularly taken into account. Appropriation has such a wide definition now, especially as it is linked to the element of dishonesty, that it distorts the distinctions between the offences. For example, the decisions in Gomez and Hinks make it difficult to distinguish between the offences of section 1 theft and section 15, obtaining property by deception. Many would suggest that the Hinks could not be convicted due to civil law technicalities in property, whereby if somebody appropriates a gift, in civil law it is theirs to appropriate, yet in criminal law it is not (Ashworth, 2006). As stated earlier, this is due to the law preventing dishonest behaviour with regard to gifts, as it is the state of mind as a person which inevitably renders you guilty of theft.
Dishonesty is the “core concept” in the Theft Acts of 1968 and 1978 (Ashworth, 2006, p381). The meaning of dishonestly is not positively defined in the 1968 Act, but instead is a combination of statute and common law with the starting point as section 2 (Herring, 2006) which gives situations in which the defendant is not dishonest. The main feature of section 2 therefore is to place heavy emphasis on to what the defendant believed at the time of the act and therefore makes it very subjective. Many believe that dishonesty is an everyday word rather then a law term, and therefore it is a matter for the jury to decide whether the defendant has acted dishonestly or not, without the need for the judge to explain to them what the term dishonesty means. They should therefore apply ordinary standards to the term. However there is a common law test that the jury will use as their basis for dishonest behaviour and that is set out in the Ghosh test which asks two questions. Firstly, was the defendant act dishonest according to the standards of reasonable people, and secondly, did the defendant realise that reasonable, honest people would regard his act as dishonest (Herring, 2006) If the answer to these questions is yes, then the defendant is dishonest, however it brings up the problem, that a jury of 12 people may all have different standards of honesty, and therefore the decisions could vary from case to case and this inconsistency would not be fair within the law. Also, dishonesty may seem obvious within some situations, but what about others such as cases involving business fraud, where the jury may need some assistance identifying the dishonesty.
On the other hand, subjectivity can be problematic when it comes to theft as shown in Gilks (1972). It was suggested that if a person genuinely believes that they are not dishonest to take money given to him mistakenly by a bookmaker, then his belief makes him honest in his actions (Boone, 2006). The problem with this is that a can person can raise the ‘Robin Hood’ (Herring, 2006, p566) defence that ascertains that their theft was for a good purpose and therefore it was not dishonest. Williams and Smith (2002) believed that this approach to dishonesty was unproductive and maintained that, in the law of property, it is not for the jury to set standards of behaviour, but it is for the law, and the jury must follow these set standards. The Ghosh test is able ensure that subjectivity does not prevail as it focuses on the defendant’s state of mind and whether he believed and ordinary reasonable person would come to the same conclusion as himself. Yet Williams has stated that one can be “certain that almost any definition making the position independent of current social attitudes would be better than the rule in Ghosh” (Boone, 2006) and therefore asks that dishonesty be defined by law rather then allow the jury to decide. However if a jury is a selection of the reasonable honest members of society then why shouldn’t they be allowed to decide over what constitutes as dishonest? It is seemingly “far easier to criticise the test than to propose a replacement which overcomes all the objections” (Ashworth, 2006).
‘Borrowing’ cases such as those like Feely (1973) where he had taken money with the supposed intention of returning the equal amount are according to Glazebrook (1993) not theft because they are not serious enough to justify criminalising a person. Glazebrook states that borrowing money with the intention of giving it back is not dishonest, but does not take into account that the ‘borrower’ is in the wrong by not giving the owner the chance to decide how their property may be used and who will use it (Halpin, 1996) However the Glazebrook approach does confine the definition of appropriation as it requires proof of a civil wrong, and therefore dishonesty is no longer a central aspect. Because of this “legal certainty would be enhanced, and legalism would triumph over the variable populism of the Ghosh test” (Ashworth, 2006).
One of the simplest elements of theft is ‘belonging to another’. If there are disputes the law is normally able to provide the answer, however there have been some borderline cases as shown in the Preddy problem (1996). It was a case of obtaining property by deception rather then theft however one of the key issues was whether the defendant obtained property belonging to another. It was a case that involved mortgage fraud and it was said that these frauds do not amount to obtaining property by deception as there is no identifiable property being transferred as the transfer extinguished the original thing in action and therefore the defendant cannot be guilty of obtaining property belonging to another within the meaning of section 15(1) of the Theft Act 1968 (Fox, 2005). This loophole has since been corrected by section 1 of Theft Amendment Act 1996 where is now an offence to dishonestly obtain a money transfer by deception
Like dishonesty there is no positive definition for the intention to permanently deprive, yet it does appear to be rather straightforward. However in some cases it is uncertain if a person who borrows something, uses it, and gives it back in a reduced state has `deprived permanently'. This is normally a matter for the jury to decide and they will look at other elements such as whether the appropriation was dishonest in order to decide whether there is intention to permanently deprive. There is also a problem when it comes to the borrowing of money. In the case of Velumyl (1989) where the defendant took money and then gave back an equal amount, this was still considered to be an intention to permanently deprive as it forced the owner to make a substitution or the original notes or coins to which they do not consent (Molan, 2003). This strict rule ensures that “the wider rights and wrongs are assessed in the context of the dishonesty requirement” (Ashworth, 2006, p378.)
In section 6, there is an extension to the meaning to ‘permanently deprive’ to ensure that cases that involve issues of ransom, pawning, throwing property away and so on are taken into account and do not allow the defendant to escape the law as the defendant is said to be ‘treating the property as his own’ and is equivalent to an intention permanently deprive. Cases such as Llyod (1985) where a cinema employee took films, copied them and then returned the originals. There is no intent to permanently deprive however as Lord Lane CJ stated that “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” (1988). So if some part of the property’s value has decreased then this in itself qualifies as intention to permanently deprive.
Of all of the elements which make up the definition of theft, one can see that they all become problematic in their own right. However we can see that appropriation and dishonesty are surprisingly the most difficult aspects of theft as appropriation does not necessarily lead to theft, yet it is regarded as important when convicting a person of the offence. Secondly, part of the mens rea, the dishonesty element is hugely subjective and is a key element in theft that is not defined in statute. The Ghosh test seeks a compromise between the subject and objective elements in theft yet even then it is not a reliable feature to have in court due to the ordinary dishonest juror approach. .
Bibliography
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Glazebrook, P. (1993) Revising the Theft Acts. Cambridge Law Journal. 49 (5)
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Meisel, F., Cook, P. (2000) Property and Protection: Essays in Honour of Brian Harvey. Hart Publishing
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