The 1968 Theft Act - Assignment Example

Introduction The 1968 Theft Act was supposed to come with simplified rules and policies that were meant to eliminate the many dilemmas and confusions that criminal lawyers had faced earlier. Unfortunately, soon after its introduction into the legislation more complexities started to arise. It appeared that most of the concepts that were designed to bring out clarity in theft cases turned out to bring more confusion following the various proceedings that advanced from there henceforth. The most controversial concept being appropriation which had been introduced into the law to simplify things by replacing taking and carrying away. The term was defined in partiality by section 3 (1) of the (1968) Theft Act. Lack of further explanation on the term by the legislative is what caused more problems. Two issues arouse; one is what the relationship between consent and appropriation was and the second, the possibility of appropriating property that was acquired in a transaction impeccable at civil law. This essay tries to analyse this facts using issue raised in two important cases R v Hinks[RvH01] and DPP v Gomez[DPP93]. The essay also utilizes Shute’s (2002) views from his article Appropriation and the law of theft. Issues of concern To understand better Shute’s argument on the Hinks case an analysis of the key factors raised have to be addressed and understood. These key factors involve consent, appropriation, and unimpeachable transfer. The issue raised to support these arguments appear in various cases prior to Hinks case as outlined below. Consent and appropriation According to the defendant in DPP v Gomez he argued that there was no appropriation of property antagonistic to section 1 of The Theft Act. His argument was that since the owner had consented to giving away goods to the defendant then there could be no act of theft that was consistent with the Theft Act (1968). The prosecution in Gomez was in a position to bring charges of theft following his acquisition of goods through deception, which was consistent with section 15 of the Theft Act [Hor93]. However, the challenge came in where the prosecution was to prove that there was an act of deception and its direct link to appropriation of the property[Gar98]. There are other valid reasons where a transaction is censured at common law on a number of certain defined grounds. These can be where the transaction is a product of duress, and it may have been through deception, undue influence, fraud, or misrepresentation[Hor93]. Sometimes the transaction can be vitiated to have occurred because there was enough reason to believe one party was unconscious. In the event that any of the above occurs then the transaction should remain valid until the transferor repudiates it successfully. Unimpeachable Transfers and Appropriation This issue arises where a transfer of property is unimpeachable at both equity and at common law. This matter arose in Mazo (1997) case where a house cleaner took advantage of her employer’s mental incapability to dishonestly receive and cash cheques made payable to her by her boss. The house cleaner was sentenced to Jail after being found guilty for five counts of theft and one count of attempted theft. On her appeal, the court held it that the case was consistent with that of Lawrence v Metropolitan Police commissioner (1972) where the House of Lords decision was that in the event a valid gift was made then there could be no theft. However, it was not clear as per Viscount Dilhorne’s speech in the Lawrence case whether the House of Lords could not charge the receiver of the gift with theft, which was consistent with the ruling in Gomez case. This decision was later addressed in the case of Hinks that happened two years later after the Gomez and Lawrence cases. In Hinks case, he was convicted of five counts of theft despite his argument that the sums received were gifts and loans therefore could not be appropriated in accordance with section 1(1) of the Theft Act (1968). Evaluation of arguments Hinks case There are several arguments that arise from the Hinks case that bring an enlargement and wider understanding of criminal law. Some of the arguments against the case include, that the case rides roughshod against the will of the framers of Theft Act[Her12]. The next argument raised indicates that the decisions made in Hinks case makes way to inappropriate prosecutions. Another argument against the Hinks case is that it pares down exceedingly on the issue of actus reus of theft. It is argued that the “situation tries to diminish the actus reus of stealing to a vanishing point”[Gar98]. On the other hand, a complimentary argument in the case against Hinks derives the role of liberal “harm principle.” This is where it is believed that in a liberal society outlawing is justified only in the event it serves to stop harm. Another important argument in the Hinks case is that it creates conflict between civil law and criminal law. It is oblique that Hinks argument tries indicating the need to abandon logical principles of civil law and property offences from their normal foundation[Smi99]. Conclusion There are several arguments raised in the R v Hinks case but after a careful consideration, none of them seems to produce a valid reason. The House of Lords put a legal sting on some of the arguments that had substantial standing using the 1968 Theft Act prior to Gomez situation. These arguments revolve around over-reliance on dishonesty and chances of carrying out an inappropriate prosecution. This is why despite the appeal in Hinks case the House of Lords did not alter their decision. After analysing all the facts and issues brought out in the Hinks case with support from Gomez, Shute agrees with the House of Lords terming their decision as justifiable. On a personal point of view, Shute’s stand is reasonable following the situation in which Hinks bases his defence. Appropriation of goods through deception is the same as theft the only difference is in this situation the transferor consents to the deceit but not to a valid reason for the transfer. References RvH01: , (2001), DPP93: , (1993), Hor93: , (Horder & Shute, 1993, p. 549), Gar98: , (Gardner, 1998, p. 41), Her12: , (Herring, 2012, p. 555), Gar98: , (Gardner, 1998, p. 42), Smi99: , (Smith & Hogan, 1999, p. 505), Read More