'the current definition of appropriation does not give effect to parliament's original intention in the theft act 1968.' discuss the extent to which this statement is true.

Appropriation occurs when a person assumes the rights of the true owner.

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The offence of theft is defined in Section 1 of  The Theft Act 1968 . It is extremely useful to examine the definition as it is possible to identify from it the various elements of the offence that need to be proved in order to secure a conviction. It is feasible to look at both the actus reus and mens rea of theft in turn – they are defined in Sections 2-6 of the 1968 Act.


Before we do so, let's remind ourselves about what Section 1 says about theft. Theft is stated as follows 'A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving that other of it …....'


We should also remember that theft is not a new offence that came into being for the first time under the Theft Act 1968. The Act was passed as a result of the work of the Criminal Law Revision Committee on this area of the law. Amongst other things the old law was based on the concept of larceny and needed to be brought up to date. The 1968 Act was an attempt to bring together the law of theft in one modern statute. It could be argued that it has been a success, making the law more accessible both to criminal practitioners and the judiciary as well as the public and jurors.


The new law was deliberately drafted in such a way as to be much wider and broader in its application than just dealing with situations covering stealing by taking and, as a result, one of the elements consists of the principle of appropriation (Section 3). The meaning of appropriation has been tested in the courts on a number of occasions since, and attention needs to paid to such cases as Lawrence (1972), Gomez (1993), Hinks (2000) and Briggs (2003) and others.


Appropriation occurs when a person assumes the rights of the true owner. Section 3 of the Theft Act (1968) describes appropriates in the following words '(1)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.

(2)Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor’s title, amount to theft of the property.'


The courts have also determined, through case law, that any assumption of any of the rights of the owner will suffice and that this can arise irrespective of consent. As is often the case, consideration of examples of situations which have been held to amount to an appropriation will probably help.


In R v Pitham and Hehl (1977) the defendant sold items of furniture which belonged to someone else. By offering to sell the furniture there had been an assumption of the rights of an owner and it was held to be an appropriation. It made no difference whether or not the items were removed from the house the defendant had still appropriated it by acting as the owner and offering it for sale.


In Skipp (1975) a lorry was loaded with fruit and driven away, the driver intended to steal the items in the lorry and as soon as he deviated away from his correct route on to the route where he planned to offload the fruit it was held that he had appropriated the load.


In Eddy v Niman (1981) the defendant loaded up a shopping trolley with items which he intended to steal from the supermarket but, unlike the case of Skipp, he never left the supermarket with the trolley, he abandoned the trolley with the items in it. He had the intention but never did anything which interfered with the rights of the owners,



In R v Morris (1983) the defendant entered a supermarket and changed the prices on some bottles of drink, his intention was to pay the lower price he had put on the bottles, it was held that he had appropriated the items as soon as he had changed the prices on the bottles.

R v Morris (BAILII: [1984] UKHL 1 ) [1983]



In Lawrence (1972) an Italian student arrived in London for the first time. The victim spoke little English and showed a piece of paper to a taxi driver. Written on the piece of paper was the address to which he wished to be taken. The taxi driver, sensing perhaps an opportunity to take advantage of the student, falsely represented the journey to be longer than it actually was. When offered a £1 note, the driver took an additional £6 from the student's open wallet. The taxi driver was subsequently convicted of theft but appealed on the grounds that the victim had consented to the taking of the money. The matter eventually reached the former House of Lords who agreed that there was an appropriation even though the victim had consented.

Lawrence v Commissioner of Police of the Metropolis (BAILII: [1971] UKHL 2 ) [1972]


The House of Lords took the opportunity to reaffirm their view of the law in Gomez (1993) which involved an assistant store manager of an electrical store who agreed to take and sell some goods belonging to the store in return for some stolen cheques. It was to be alleged later that the manager of the shop had consented to the transaction on being presented with a shopping list and had been led to believe that the order was genuine. The manager was also led to believe that the cheque was as 'good as cash'. The House ruled that their previous ruling in Lawrence concerning their construction of 'appropriation' was correct and that it should be regraded as authoritative and correct. The assistant store manager's conviction for theft was reinstated.

DPP v Gomez (BAILII: [1992] UKHL 4 ) [1993] AC 442, [1993]

In R v Hinks (2000) appropriation was ruled to extend to include circumstances where the defendant acquired a title to property as a result of a gift. Miss Hinks had acquired large sums of money from the person she cared for and took advantage of in some way as he was not very good at managing his property due to his low intelligence. The decision is not without its' critics including the late Sir John Smith. They disagreed on the basis that it flew in the face of common sense and went too far in terms of creativity on the part of the House of Lords. Another critic was Professor Glanville Williams but there are some academics who who do not find the decision quite so objectionable.

Hinks (BAILII: [2000] UKHL 53 ) [2000]


In Hopkins and Kendrick (1997) the defendants ran a care home and received gifts from one of the frail residents who was unable to manage her affairs properly. It was held that the defendants were guilty of theft as the old lady was unable to give unconfused and proper consent to them receiving the gifts. Because there was some question regarding the validity of the consent it made the receipt of the gift dishonest and it was the dishonesty which made the defendants guilty of theft.


In R v Briggs (2003) the Court of Appeal ruled that appropriation did not include circumstances when the act complained of did not involve a physical one which was considered too remote. The case concerned the defendant's handling of a property transaction on behalf on her elderly relatives. It is important to remember however that the appeal only concerned one charge of theft arising out of the handling of funds and that other convictions, including forgery and obtaining property by deception, were not appealed against. The case supports the view that there are limits to the construction that can be placed upon 'appropriation.'

Briggs (BAILII: [2003] EWCA Crim 3662 ) [2004]


The matter of consent was to arise again in R v Gallasso (1993) which involved the conduct of a nurse responsible for the care of a number of vulnerable patients. The case turned on whether the opening of a third and new trust account,( there were already two trusts of which J, the alleged victim, was the beneficiary,) was an appropriation due to D's act amounting to an assumption of any of the rights of J as the owner. The Court of Appeal concluded that the paying in of the cheque into the new account did not amount to appropriation.


This case and others such as R v Mazo and R v Briggs (2003), referred to earlier, illustrate the difference in approach and outcomes between the former House of Lords and their rulings in Gomez and Hinks to those of the Court of Appeal in Gallasso, Mazo and Briggs. The latter decisions of the Court of Appeal seem to be more restricted in its interpretation of appropriation than the House of Lords.


The subject matter of cases involving gifts and the vulnerability of the victims does seem to be the cause for concern. In the case of R v Mazo (1997) LJ Pill, on appeal, gave a very careful account of why it was important that juries were not convicting defendants on the basis of their moral judgements about the morality of what the defendant had done, but on a correction approach to the word of the Act concerning appropriation. The defendant's appeal was allowed.


It can be seen that the matter of appropriation is not always straight forward, but it is an issue that is likely to arise. We are, after all, dealing with individuals who are not necessarily about to acknowledge their true role in what might amount to criminal activity. Is it more to do with the Theft Act itself and its approach to appropriation?


Some difficulties can arise, for example, in identifying exactly when appropriation starts and finishes – such a point arose in the case of R v Fritschy (1985) where a defendant who dealt in coins (Krugerrands) for a Dutch company, acting on instructions from a third party, collected some coins in England and took them to Switzerland and deposited them there but not into the Bank account that he was supposed to do. The Court of Appeal decided that there had not been an appropriation because the defendant had acted with authority. The effect being that if there had been any appropriation it arose outside England and they therefore overturned his conviction.


Difficulties of knowing when an appropriation starts and ends arose again in Hale (1978) when the defendants broke into a house and and stole some jewellery from an upstairs bedroom. They then tied up the woman whose house it was. They were convicted of robbery and appealed on the grounds that the force came after they had appropriated the jewellery the convictions were upheld as the appropriation of the jewellery was a continuing act.


In R v Atakpu and Abrahams (1994) the defendants hired cars in Germany with false paperwork. They were arrested at Dover when they brought the cars back to the UK to sell them. They couldn’t be charged as appropriation had taken place outside of the jurisdiction of the English courts. Whether or not the theft took place in England or overseas it was held that the same items could not be stolen again by the same thief. In this case the cars were stolen abroad and the appropriation took place abroad.

Turning back to the question and whether Parliament has achieved a modern up to date and workable piece of legislation, it is arguable that in the main it has. Especially when it was the intention of Parliament in adopting the work of the Criminal Law Revision Committee to bring about a much wider approach and construction to dishonesty offences such as theft and to cover different situations which extend beyond a simple taking or stealing of property in the physical sense. There are some cases which point to particular difficulties such as in the case of gifts and where theft ends and other offences of deception begin, but on the face of it such cases are limited. It could be said that the jury is still out on the question of whether a reform of the law is now required. We are constantly being reminded about our ageing population and recent events have raised concerns about the care of the vulnerable in our communities.


The present legislation and construction placed upon appropriation 'catch' a wide range of different circumstances in which appropriation can be said to arise but this seems to be consistent with the whole or broad approach of the other interwoven definitions within Sections 1-6. As a result the Theft Act 1968 is usually seen as an example of the success of law reform. It can be seen however that difficulties can arise with the overlap between theft and fraud due to the wide construction placed upon appropriation.


The Act may throw up difficulties for juries in terms of how they should approach dishonesty but, having said that, there are numerous academics and professional practitioners alike who strenuously defend the jury system. Yes it could be said that such circumstance as those surrounding cases such as Lawrence may justify the need for technical guidance for the jury, but in the vast majority of cases members of the jury would be able to recognise an appropriation and a dishonest act when they see one – in other words common sense will often prevail and a need for guidance will not arise.


Juries are often referred to the Ghosh test [1982] when looking for the test of dishonesty. "Were the person's actions honest according to the standards of reasonable and honest people?" then "Did the person concerned believe that what he did was dishonest at the time?"

R v Ghosh (BAILII: [1982] EWCA Crim 2 ) [1982]

Some may point to the apparent conflict between the civil law and the criminal law in this area, but the rulings of such cases as Ghosh (1982), Gomez (1993) and others provide some measure of assistance. At the end of the day it should be remembered that it is for a very good reason that the burden of proof in civil and criminal cases is different and that is to do with the seriousness of the consequences for the defendant in criminal cases. In the event of a conviction the defendant will have the stigma of the conviction of being declared a 'thief' and may face a custodial sentence.


There have been occasions when there has been a call for reform of the law. When questions have been asked about whether it is appropriate for the judges to 'put the law right' by using the discretion afforded by the 1966 Practice Statement thus saving parliament's time, or whether it would be better for the matter to be referred to Parliament. In C (a minor) (1996) Lord Lowry, in the House of Lords, was of the firm opinion that the matter of punishment of child offenders raised social and political issues as well as legal ones and indicated that if a change in the law were to be mooted then it would be best left to Parliament. The matter did subsequently come before Parliament and as a result of this the Crime and Disorder Act 1998 was passed.


Maybe there is a strong case for arguing that similar considerations apply to any reform of the law on appropriation, bearing in mind the likelihood of the need for the views of academics, practitioners, including the police and Crown Prosecution Service, as well as other political groups all anxious to be able to have their say. Judges, after all, are required to preside over trial proceedings and are not always best equipped to engage in consultations and debate about law reform.



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House of Lords - Hinks (On Appeal From The Court of Appeal …

Criminal law revision committee 

Theft Case Law – SlideShare

The Theft Acts by Edward Griew (25 May 1995)



This essay gives a detailed analysis of theft and appropriation and of the aims of the Theft Act 1968.

It looks at some examples of situations which have been held to amount to an appropriation;

Lawrence (1972);

Gomez (1993);

Hinks (2000) and

Briggs (2003):

The matter of consent is examined as in R v Gallasso (1993) and the case of R v Mazo (1997) is discussed in relation to the matter of cases involving gifts and the vulnerablity of victims.

As the title suggests the essay considers whether Parliament has achieved an up to date and workable piece of legislation.

The cases of  Ghosh (1982) and Gomez (1993) are discussed as is the case of C (a minor)(1996) and the results of this particular case coming before Parliament and resulting in the Crime and Disorder Act 1998.

Again this essay lends itself to discussion and elaboration using the links provided.

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