Cases & Debate Sparked Lords Opinions Problems of Theft
Gomez (1993) – D was the assistant Hinks (2001) Is theft targeting the right thing?
manager of an electrical goods Lord Hutton & The argument is whether the elements
shop. He convinced his manager to Lord Hobhouse of theft, as currently interpreted, are
allow a customer to buy items using dissenting fairly & coherently targeting their
unique cheques that D new were Hutton: Not intended mischief.
stolen & therefore worthless. The dishonest as it was What mischief is theft supposed to
manager consented to the sale and a valid gift, under target? – the most obvious answer is
D was charged with theft. a valid gift you can theft is designed to protect property
Crown Court: guilty: theft suppose they rights. This is not sufficient on its own,
Court of Appeal: appeal allowed. consented. You and mere interference with property
Following the case of Morris, the cannot rights are not sufficient justification for
consent of V undermines the understand criminalisation. Eg: where V lends D her
element of appropriation. appropriation car and D gains possession and so
House of Lords: appeal allowed, neutrally it has to interferes with V’s property rights –
reaffiriming D’s liability and be considered there is nothing wrongful here.
following Lawrence. Where D tricks alongside Interference with rights sufficient?
V, appropriation will be found dishonesty. There must be something beyond
whenever there is an assumption of Dishonest before simple interference with property
ownership rights by D, regardless of the appropriation, rights. At one time, this difference
V’s consent. but at the time of would have been non-consensual
the gift transfer interference. However following Gomez,
Debate Caused there was no an appropriation can be found even
Debate broke out: the irrelevance dishonesty under where V consents.
of V’s consent created a substantial s.2. This has resulted in the theft offence
overlap with offences obtaining being much broader in its application,
property by deception. (referred to Hobhouse: it is potentially applying to minor acts of
fraud by false representation just as likely that preparation that outwardly suggest little
today.) the civil law is wrongdoing, such as touching an item in
Gomez, for better or worse, wrong as the the supermarket with the requisite
confirms as long as D assumes a criminal law is. mens rea. (Shute, 2002)
right of ownership over V’s Criminal law
property, there will be an should be Contradiction between Civil and Criminal
appropriation and V’s consent or subservient to civil Law
non-consent is irrelevant. law because they Most controversial point relates to
are crimes about cases where theft has been found even
Hinks (2001) – property meaning though there has been no breach of civil
D befriended V who was described they need a law and no property rights have been
by the court as naïve, trusting and conception of infringed. (Example: Hinks.) – where D
of limited intelligence. Over a 6- what is property. took advantage of a vulnerable person
month period, she took V to his (which we get although the gifts from V were valid in
building society almost every day from civil law.) civil law.
and was given £300, eventually To understand if Cases like Hinks are central to our
totalling over £60,000. D was property exists, identification and understanding of the
charged with theft. we need these mischief on theft, suggesting the
Court of Appeal – conviction pre-existing offence is targeting dishonest
upheld. property rights. appropriation more generally, and not,
HOL – appeal dismissed. Although Property crime as had generally been assumed, being
the transfer of money may not have can only exist if structured by civil property rules.
amounted to a civil wrong, this does property rights Shute – suggested the decision in Hinks
, not preclude it being an exist beforehand is right because, even though in a given
appropriation and a theft. which they do (in case no property right has been
the civil law.) the infringed, greater property rights are
Why was the gift considered existence of the protected.
indefeasible? fraud law (enacted Shute states: even without breaching a
The defendant accompanying Mr in 2006) makes recognised proprietary right the
Dolphin to his building society Hobhouse’s criminalised act may nonetheless have
where he made the withdrawals argument stronger had the tendency to undermine
does raise the question of whether as we have now property rights:
some coercion was going on, conceptualised By either attacking the interests they
making the gifts voidable for actual fraud more protect, or indirectly by weakening an
undue influence. closely. established system of property rights
The prosecution contended that Mr and so threatening the public good and
Dolphin lacked the capacity to make Lord Steyn that that system represents.
the gifts, thus making them void. (supports ruling) – If this is correct….
argued the If this is right and there is a need to
Differences between Hinks and Gomez: purposes of civil protect an established system of
Hinks involved a full and valid and criminal law property rights using the law of crime,
transfer of property in civil law. are somewhat then perhaps the way forward would be
In the case of Mazo, it was accepted different. In to say:
by the COA to be ‘common ground theory the two That any theft conviction results in the
that the receiver of a valid gift inter systems would title to the property becoming voidable
vivos could not be subject of a work in perfect because at least then there is a link
conviction of theft. harmony but in a between vitiation in the civil law and
This argument supported by the practical world theft in the criminal law.
apparent absurdity of D being this cannot always This view suggests that the civil tests of
potentially liable for theft and yet, be achieved. The vitiation need to be changed because
as a matter of civil law, remaining HOL recognised the principles underpinning it are
the owner of the property stolen. this inconsistency, inadequate in protecting property
This argument was rejected and but rejected it as a rights.
overruled in Hinks. reason to find no The court in Hinks determined there is a
In Hinks, theft is not being used to appropriation. need to protect proprietary rights with
protect ownership rights, but is Lord Steyn stating tension between civil
punishing D for gaining valid Lord Steyn: and criminal being an insufficient reason
ownership. Theft is now targeting ongoing dishonest to depart from the current law of
dishonesty or exploitation more state of mind, Gomez and Lawrence.
generally. alongside specific
appropriations. Implication of the case of Briggs
Ghosh (1982) – (eg V giving D the In Briggs – the Court of Appeal held that
D, who was working as a surgeon, money.) this appropriation within the meaning of s.3
claimed fees for carrying out certain dishonesty can be required a physical act of appropriation
operations where this was not connected to by the defendant.
appropriate. D was charge with these There would not be such an act where
obtaining property by deception (an appropriations as the defendant’s fraudulent deception
offence where D must act it is ongoing. Does merely caused the victim to transfer his
dishonestly. become theft. property to the defendant but without
Crown Court: guilty of section 15 the defendant physically taking it.
offence. Hutton – more This approach achieved support from
COA: conviction upheld. D acts general dishonesty late Professor Sir John Smith who
dishonestly where (a) D’s conduct is and various acts of argued that the victim’s voluntary act
dishonest according to the honest would break the chain of causation so
Gomez (1993) – D was the assistant Hinks (2001) Is theft targeting the right thing?
manager of an electrical goods Lord Hutton & The argument is whether the elements
shop. He convinced his manager to Lord Hobhouse of theft, as currently interpreted, are
allow a customer to buy items using dissenting fairly & coherently targeting their
unique cheques that D new were Hutton: Not intended mischief.
stolen & therefore worthless. The dishonest as it was What mischief is theft supposed to
manager consented to the sale and a valid gift, under target? – the most obvious answer is
D was charged with theft. a valid gift you can theft is designed to protect property
Crown Court: guilty: theft suppose they rights. This is not sufficient on its own,
Court of Appeal: appeal allowed. consented. You and mere interference with property
Following the case of Morris, the cannot rights are not sufficient justification for
consent of V undermines the understand criminalisation. Eg: where V lends D her
element of appropriation. appropriation car and D gains possession and so
House of Lords: appeal allowed, neutrally it has to interferes with V’s property rights –
reaffiriming D’s liability and be considered there is nothing wrongful here.
following Lawrence. Where D tricks alongside Interference with rights sufficient?
V, appropriation will be found dishonesty. There must be something beyond
whenever there is an assumption of Dishonest before simple interference with property
ownership rights by D, regardless of the appropriation, rights. At one time, this difference
V’s consent. but at the time of would have been non-consensual
the gift transfer interference. However following Gomez,
Debate Caused there was no an appropriation can be found even
Debate broke out: the irrelevance dishonesty under where V consents.
of V’s consent created a substantial s.2. This has resulted in the theft offence
overlap with offences obtaining being much broader in its application,
property by deception. (referred to Hobhouse: it is potentially applying to minor acts of
fraud by false representation just as likely that preparation that outwardly suggest little
today.) the civil law is wrongdoing, such as touching an item in
Gomez, for better or worse, wrong as the the supermarket with the requisite
confirms as long as D assumes a criminal law is. mens rea. (Shute, 2002)
right of ownership over V’s Criminal law
property, there will be an should be Contradiction between Civil and Criminal
appropriation and V’s consent or subservient to civil Law
non-consent is irrelevant. law because they Most controversial point relates to
are crimes about cases where theft has been found even
Hinks (2001) – property meaning though there has been no breach of civil
D befriended V who was described they need a law and no property rights have been
by the court as naïve, trusting and conception of infringed. (Example: Hinks.) – where D
of limited intelligence. Over a 6- what is property. took advantage of a vulnerable person
month period, she took V to his (which we get although the gifts from V were valid in
building society almost every day from civil law.) civil law.
and was given £300, eventually To understand if Cases like Hinks are central to our
totalling over £60,000. D was property exists, identification and understanding of the
charged with theft. we need these mischief on theft, suggesting the
Court of Appeal – conviction pre-existing offence is targeting dishonest
upheld. property rights. appropriation more generally, and not,
HOL – appeal dismissed. Although Property crime as had generally been assumed, being
the transfer of money may not have can only exist if structured by civil property rules.
amounted to a civil wrong, this does property rights Shute – suggested the decision in Hinks
, not preclude it being an exist beforehand is right because, even though in a given
appropriation and a theft. which they do (in case no property right has been
the civil law.) the infringed, greater property rights are
Why was the gift considered existence of the protected.
indefeasible? fraud law (enacted Shute states: even without breaching a
The defendant accompanying Mr in 2006) makes recognised proprietary right the
Dolphin to his building society Hobhouse’s criminalised act may nonetheless have
where he made the withdrawals argument stronger had the tendency to undermine
does raise the question of whether as we have now property rights:
some coercion was going on, conceptualised By either attacking the interests they
making the gifts voidable for actual fraud more protect, or indirectly by weakening an
undue influence. closely. established system of property rights
The prosecution contended that Mr and so threatening the public good and
Dolphin lacked the capacity to make Lord Steyn that that system represents.
the gifts, thus making them void. (supports ruling) – If this is correct….
argued the If this is right and there is a need to
Differences between Hinks and Gomez: purposes of civil protect an established system of
Hinks involved a full and valid and criminal law property rights using the law of crime,
transfer of property in civil law. are somewhat then perhaps the way forward would be
In the case of Mazo, it was accepted different. In to say:
by the COA to be ‘common ground theory the two That any theft conviction results in the
that the receiver of a valid gift inter systems would title to the property becoming voidable
vivos could not be subject of a work in perfect because at least then there is a link
conviction of theft. harmony but in a between vitiation in the civil law and
This argument supported by the practical world theft in the criminal law.
apparent absurdity of D being this cannot always This view suggests that the civil tests of
potentially liable for theft and yet, be achieved. The vitiation need to be changed because
as a matter of civil law, remaining HOL recognised the principles underpinning it are
the owner of the property stolen. this inconsistency, inadequate in protecting property
This argument was rejected and but rejected it as a rights.
overruled in Hinks. reason to find no The court in Hinks determined there is a
In Hinks, theft is not being used to appropriation. need to protect proprietary rights with
protect ownership rights, but is Lord Steyn stating tension between civil
punishing D for gaining valid Lord Steyn: and criminal being an insufficient reason
ownership. Theft is now targeting ongoing dishonest to depart from the current law of
dishonesty or exploitation more state of mind, Gomez and Lawrence.
generally. alongside specific
appropriations. Implication of the case of Briggs
Ghosh (1982) – (eg V giving D the In Briggs – the Court of Appeal held that
D, who was working as a surgeon, money.) this appropriation within the meaning of s.3
claimed fees for carrying out certain dishonesty can be required a physical act of appropriation
operations where this was not connected to by the defendant.
appropriate. D was charge with these There would not be such an act where
obtaining property by deception (an appropriations as the defendant’s fraudulent deception
offence where D must act it is ongoing. Does merely caused the victim to transfer his
dishonestly. become theft. property to the defendant but without
Crown Court: guilty of section 15 the defendant physically taking it.
offence. Hutton – more This approach achieved support from
COA: conviction upheld. D acts general dishonesty late Professor Sir John Smith who
dishonestly where (a) D’s conduct is and various acts of argued that the victim’s voluntary act
dishonest according to the honest would break the chain of causation so
