Law Relating To Theft

C. Walsh, Edward Phillips, P. Dobson, Edward Phillips, P. Dobson

• Publisher: Routledge-Cavendish
• Year: 2001
• eBook ISBN: 9781135351342
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho civil

This series of papers was presented at a conference held in 1992 to mark the twenty-fifth anniversary of the creation of a first national Ombudsman under the Parliamentary Commissioner Act 1967.

The distinguished contributors present an intriguing picture of the Ombudsman in a number of contexts. Accessibility to the Parliamentary Commissioner is considered and there is an analysis of the arguments surrounding recent proposals for a so called Prison Ombudsman. A comparative dimension is introduced with an examination of the Polish Commissioner for Civil Rights Protection.

A significant element of the paper on the issue of competence to deal with the legality of administrative action. There is also an examination of the dynamics that continue to shape the Local Government Ombudsman remedy.

CHAPTER 1: HISTORY AND PRELIMINARY MATTERS

1 THEFT OF PROPERTY

1-01 It is crucial to locate the law on theft within the wider context of the law's protection of private property (including criminal damage). However, the concept of ‘property’ is extremely complex and encompasses fundamental issues of ownership and title and is expressed in terms of varying degrees of exclusive and shared ‘rights’. These rights to ownership and title receive protection under civil, as well as, criminal law. This creates its own set of problems (unfortunately, not unique) for the law of theft. One long enduring controversy is the extent to which definitions and concepts employed by the civil law can be appropriated for the purposes of the criminal law. This is especially important as English law has traditionally sought to draw a distinction between the protection of property rights (either through an action for damages, or through those equitable remedies developed as a means for dealing with those situations where a remedy in damages would be inappropriate or unsuitable)¹ and the assignment of criminal culpability and blameworthiness. It is submitted that the inability of the common law and, in some cases, the refusal of the common law judges, to acknowledge these incompatibilities, were responsible for the chaotic nature of the early law relating to theft. This takes on an added significance in the light of the harsh sentencing practices, including transportation and capital punishment, applicable to property offences in the centuries leading up to the passing of the Theft Act (TA) in 1968.²

1-02 By the beginning of the 19th century, it was recognised that the law was in an impossibly complicated state, as a consequence of judicial and parliamentary attempts to utilise and extend larceny and the doctrine of constructive possession, as the fundamental mechanisms for protecting property. The Criminal Law Commissioners of 1834 expressed it as follows:

The numerous subtle distinctions upon the subject of constructive possession especially as to the cases where the owner has a constructive possession against one person and not against another, and where the person in actual possession may or may not be guilty of stealing another's goods, are much too technical for convenient use or the general comprehension of the community.³

1-03 An attempt was made in the Larceny Acts (LA) 1861 and 1916 to deal with the mass of unnecessarily complicated, and often contradictory, rules that had developed. With the benefit of hindsight, however, it can be seen that this was doomed to failure, primarily because of the unfortunate categorisation of offences as larceny, embezzlement, obtaining by false pretences and fraudulent conversion and the continued use of language that was divorced from the ordinary understanding of what was to be regarded as stealing.⁴ Moreover, the single most important explanation for some of the strange pathways down which the courts chose to go was the refusal to release their adherence to the previous case law. Consequently, there continued to be perpetuated:

… an immensely and unnecessarily complicated structure, full of difficult distinctions of a purely technical character and bristling with traps for the judges, magistrates, prosecutors and police who had to administer the law.⁵

2 THE THEFT ACT 1968

1-04 The TA 1968 was an attempt to sweep away the whole crumbling edifice of the previous law, and the piecemeal statutory tinkering, to create what was intended to be a code dealing with theft and a number of associated offences. As ATH Smith puts it:

The Act sought to shift the whole conceptual basis of the law of theft, so that ownership could be protected directly rather than through the series of clumsy stratagems devised by judges over the centuries. It was intended to make an entirely fresh start, unlike the LAs of 1916 and before, which had been consolidating measures.⁶

The 1968 Act itself was based on the Eighth Report of the Criminal Law Revision Committee (CLRC), ‘Theft and related offences’.⁷

As Lacey and Wells put it:

… this project of codification was informed by rule of law values such as clarity, comprehensiveness, coherence and consistency and, in particular, by the idea that the criminal law should be accessible to the citizen and that its technicality should hence be reduced.⁸

It was the view of the Committee that it was the dishonest appropriation of another's property that was the concern of the criminal law and that this was to be reflected in a ‘new’ offence of theft:

The committee generally are strongly of opinion that larceny, embezzlement and fraudulent conversion should be replaced by a single new offence of theft. The important element of them all is undoubtedly the dishonest appropriation of another's property … and we think it not only logical, but right in principle, to make this the central element of the offence. In doing so, the law would concentrate on what the accused dishonestly achieved or attempted to achieve and not on the means - taking or otherwise - which he used in order to do so.⁹

1-05 It was the express intention of the CLRC that the Act should be both simple and understandable. Moreover, the language that was used was to be given its ordinary meaning. This can be seen in the fact that crucial terms, such as ‘dishonesty’, were not provided with an interpretation (apart from the explanation in s 2 as to what was not to be regarded as dishonest). This was welcomed by the courts (although, sometimes, in word and not in deed). In Treacy v DPP, Lord Diplock opined that the Act:

… is expressed in simple language as used and understood by ordinary literate men and women. It avoids, so far as possible, those terms of art which have acquired a special meaning understood only by lawyers in which many of the penal enactments which it supersedes were couched.¹⁰

1-06 This is not to say, however, that the Committee's work is beyond criticism. There were a number of areas where insufficient thought had gone into the recommendations put forward. These have become the subject of much subsequent difficulty. One instance of this may be mentioned here. The Committee had concluded that it was not practicable for any definition of theft to encompass the offence of obtaining by false pretences. This was finally settled by the House of Lords in Gomez, to the effect that obtaining property (with the exception of land) by deception, under s 15, would also constitute theft.¹¹

1-07 Simplification, moreover, has frequently created its own problems. The price of simplification has meant that too many issues have been left to be resolved by the courts. In some areas, this simplification has meant that matters which should, in reality, be questions of law are left as merely questions of fact to be determined by individual juries. In the intervening period since the introduction of the 1968 Act, some judges, too, have voiced dissatisfaction. The modernising process of 1968 may have been radical for the time but, judged by present day standards, it did not go far enough. As Beldam LJ, in Hallam, remarked, the present law is:

… in urgent need of simplification and modernisation, so that a jury of 12 ordinary citizens do not have to grapple with the antiquated ‘franglais’ of choses in action and scarce public resources are not devoted to hours of semantic argument divorced from the true merits of the case.¹²

As Smith points out, however, this is hardly a fair criticism.¹³ In a number of situations, covered at various points in the text below, it is the judges who must bear responsibility for endless and unnecessary semantic quibbling. It is true, however, that there are too many issues which remain unresolved. The Law Commission, among other commentators, has pointed out that ‘… the time may be approaching when a thorough review of the TAs is required’.¹⁴

3 THE THEFT ACT 1978

1-08 When the original Theft Bill was making its way through Parliament, there was, on occasion, a certain amount of meddling with the proposals put forward by the CLRC. An example of this occurred in relation to s 16 (the obtaining of pecuniary advantage by deception). Here, a provision not scrutinised by the CLRC was enacted as s 16(2)(a). This proved to be so unsatisfactory and unworkable that the Home Secretary referred it back to the Committee.¹⁵

Upon their recommendation (the Thirteenth Report), this was repealed and replaced by new offences in the TA 1978.¹⁶

4 ISSUES OF INTERPRETATION

1-09 Any evaluation of the TAs will inevitably raise a number of issues that may conveniently be covered under this general heading.

The use of pre-1968 law

1-10 The LA of 1916 had been little more than an attempt at consolidating the common law position. Accordingly, the pre-1916 cases had continued to be applied, with all of the consequent deleterious results. The 1968 Act was, however, intended to be much more in the nature of codifying legislation, enacting a radically different approach to the law on theft. So much was this the prevalent view, that an attempt was made to prohibit completely any reference to the previous cases. Lord Wilberforce proposed an amendment to the 1968 Bill in the House of Lords that would have prohibited any reference ‘… to any decisions of any courts prior to the passing of this Act, other than decisions in general terms dealing with the interpretation of statutes’. While there may be some measure of understanding for the spirit with which the amendment was proposed, it is fortunate that this amendment was eventually withdrawn. In most areas, of course, the changes introduced by the 1968 Act have meant that the old cases are now irrelevant and no longer to be considered good law.¹⁷Continued references to these cases, while interesting from an academic perspective, would serve only to confuse. On the other hand, there are also a number of limited situations where the old cases may serve to illuminate the current provisions. These have been adequately discussed elsewhere and may be summarised as follows:¹⁸

1. (a) in situations where the Act incorporates the provisions of earlier statutes, it is unnecessary to reconsider points of interpretation that had been previously well settled. An instance of this would be s 12, which replaced s 217 of the Road Traffic Act 1960. Cases such as Roberts,¹⁹ decided under the 1960 Act, would continue to be decided the same way today;²⁰
2. (b) the old law may be relevant when considering the mischief which the Act was intended to deal with. This would be particularly useful in persuading the courts that Parliament could not have intended to legalise conduct which was previously criminal under the old law. The decision of the House of Lords in Treacy v DPP is a case in point.²¹
   Here, Lord Diplock, expressing the majority view, had no hesitation in referring to the old s 29 of the LA 1916 and the cases thereunder in disposing of the defence argument that a blackmailing letter sent from the UK to an address in Germany was no longer within the jurisdiction of the English courts;²²
3. (c) there are situations where a term used in the TAs is intended to bear a technical, rather than its ordinary, meaning. In these situations, it may be useful to refer to the interpretation accorded to such a term by the previous law.

The use of the...

Table of contents

• COVER PAGE
• TITLE PAGE
• COPYRIGHT PAGE
• PREFACE
• TABLE OF CASES
• TABLE OF STATUTES
• TABLE OF ABBREVIATIONS
• CHAPTER 1: HISTORY AND PRELIMINARY MATTERS
• CHAPTER 2: THEFT
• CHAPTER 3: ROBBERY
• CHAPTER 4: BURGLARY AND AGGRAVATED BURGLARY
• CHAPTER 5: REMOVAL OF ARTICLES FROM PLACES OPEN TO THE PUBLIC
• CHAPTER 6: TAKING CONVEYANCES WITHOUT AUTHORITY AND AGGRAVATED VEHICLE-TAKING
• CHAPTER 7: ABSTRACTING OF ELECTRICITY AND THEFT FROM MAILS
• CHAPTER 8: DECEPTION OFFENCES IN THE 1968 ACT
• CHAPTER 9: THE THEFT ACT 1978
• CHAPTER 10: FALSE ACCOUNTING AND OTHER OFFENCES OF FRAUD
• CHAPTER 11: BLACKMAIL
• CHAPTER 12: HANDLING STOLEN PROPERTY
• CHAPTER 13: GOING EQUIPPED FOR BURGLARY, THEFT OR CHEAT
• CHAPTER 14: ATTEMPTS