W2 C1 – s4
1. THEFT ACT 1968 SS 1-7
a. S1(1): “A person is guilty of theft if he dishonestly appropriates property belonging
to another with the intention of permanently depriving the other of it…”.
b. S.2(1)(a) of the Theft Act 1968 says that D is not to be found dishonest if s/he
believed that s/he had in law the right to deprive the other of the property.
c. S.2(2) says that a willingness to pay will not necessarily prevent D from being found
dishonest.
d. S3(1): “Any assumption by a person for the rights of an owner amounts to
appropriation”.
e. S.5: “Property is to be regarded as belonging to any person having possession or
control of it, or having in it any proprietary right or interest...” i.e. possible to steal
your own property by taking it from someone in possession.
f. S.6(1): “D...is to be regarded as having the intention to deprive the other of it if his
intention is to treat the thing as his own to dispose of regardless of the other’s rights
...borrowing or lending of it may amount to so treating it if...the borrowing or
lending is for a period and in circumstances making it equivalent to an outright
taking.”
g.
2. Hinks [2001] 2 AC 241:
a. D befriended V who had limited intelligence. D took V to withdraw 300 quid a day
from V’s bank account. D gained 60k through this process. D was convicted but
appealed that the sum may be have been gifts. The Lords was asked a q by the CofA;
if D received a gift outright, can D APPROPRIATE it? THE LORDS SAID YES. Private law
regards X as having acquired absolute ownership (gift or otherwise) do not
determine the scope of the criminal law; there may be public policy reasons for
taking a different approach,
b. “While in some contexts of the law of theft a judge cannot avoid explaining civil law
concepts to a jury (eg in respect to S.2(1)(a)) the decisions of the Lords eliminate the
need for such explanations in respect to appropriation. That is a great advantage in
an overly complex corner of the law”. (Lord Steyn).
c. Lord Steyn: “In practice, the mental requirements of theft are an adequate
protection against injustice”.
d. However, the requirement for proof that D intended to deprive V permanently is no
such protection: someone who accepts a gift always intends the giver to be
permanently deprived!
e. So, the only real protection against injustice, when D is charged with stealing a gift
from V is the requirement to prove dishonesty.
f. It is likely that Hinks herself was dishonest: look at the way she made the
transactions take place.
g. A troubling example is given in Hinks itself:
h. P sees D’s painting and, thinking he is getting a bargain, offers £100,000 for it.
i. D realises that P thinks the painting is by a famous painter, but D knows that the
painting is in fact by his sister and is worth only £100. He accepts P’s offer.
j. There is a contract, and D would be entitled to claim the £100,000 from P. Does D
steal P’s money?
1. THEFT ACT 1968 SS 1-7
a. S1(1): “A person is guilty of theft if he dishonestly appropriates property belonging
to another with the intention of permanently depriving the other of it…”.
b. S.2(1)(a) of the Theft Act 1968 says that D is not to be found dishonest if s/he
believed that s/he had in law the right to deprive the other of the property.
c. S.2(2) says that a willingness to pay will not necessarily prevent D from being found
dishonest.
d. S3(1): “Any assumption by a person for the rights of an owner amounts to
appropriation”.
e. S.5: “Property is to be regarded as belonging to any person having possession or
control of it, or having in it any proprietary right or interest...” i.e. possible to steal
your own property by taking it from someone in possession.
f. S.6(1): “D...is to be regarded as having the intention to deprive the other of it if his
intention is to treat the thing as his own to dispose of regardless of the other’s rights
...borrowing or lending of it may amount to so treating it if...the borrowing or
lending is for a period and in circumstances making it equivalent to an outright
taking.”
g.
2. Hinks [2001] 2 AC 241:
a. D befriended V who had limited intelligence. D took V to withdraw 300 quid a day
from V’s bank account. D gained 60k through this process. D was convicted but
appealed that the sum may be have been gifts. The Lords was asked a q by the CofA;
if D received a gift outright, can D APPROPRIATE it? THE LORDS SAID YES. Private law
regards X as having acquired absolute ownership (gift or otherwise) do not
determine the scope of the criminal law; there may be public policy reasons for
taking a different approach,
b. “While in some contexts of the law of theft a judge cannot avoid explaining civil law
concepts to a jury (eg in respect to S.2(1)(a)) the decisions of the Lords eliminate the
need for such explanations in respect to appropriation. That is a great advantage in
an overly complex corner of the law”. (Lord Steyn).
c. Lord Steyn: “In practice, the mental requirements of theft are an adequate
protection against injustice”.
d. However, the requirement for proof that D intended to deprive V permanently is no
such protection: someone who accepts a gift always intends the giver to be
permanently deprived!
e. So, the only real protection against injustice, when D is charged with stealing a gift
from V is the requirement to prove dishonesty.
f. It is likely that Hinks herself was dishonest: look at the way she made the
transactions take place.
g. A troubling example is given in Hinks itself:
h. P sees D’s painting and, thinking he is getting a bargain, offers £100,000 for it.
i. D realises that P thinks the painting is by a famous painter, but D knows that the
painting is in fact by his sister and is worth only £100. He accepts P’s offer.
j. There is a contract, and D would be entitled to claim the £100,000 from P. Does D
steal P’s money?
