Please enable JavaScript.
Coggle requires JavaScript to display documents.
Chapter 5: Theft -Appropriation., Summary/History
can the accused be…
-
Summary/Historycan the accused be said to appropriate if he has the consent of the owner?
- 1972 Lawrence v MPC - HoL said yes
- 1981 Eddy v Niman - Div. Court QBD said no
- 1984 Morris - HoL said no (adverse interference was required)
- 1993 Gomez - HoL said yes (no adverse interference required)
- 1994 Gallasso - CoA said no (unless there was deception)
- 1996 Mazo - CoA said no (unless there was deception)
- 2000 Hinks - HoL said yes (regardless of whether or no there was deception)
appropriation can occur even if the owner consented
Criticisms of current law on appropriation
- we all appropriate now
~ if gomez is right then even an honest shopper could be said to appropriate just by simply putting something from the shelf into his basket. he has already committed the actus reus.
in practice this isn't worrying since appropriation on its own isn't enough to convict - evidence of dishonesty &7 intention to permanently deprive is also required. = difficult to establish if accused hasn't left the shop (unless he ofc confessed about his intention).
similarly, if Hinks is correct then even those accepting presents have the actus reus of theft - again, however prosecution will not follow if there is no evidence of dishonesty.
- creates and overlap between theft and deception
~ before Gomez, theft & deception were very distinct. Theft = charge when the owner didn't consent & deception = charge when the owner did consent but deceived
now that accused can appropriate even with consent, theft and deception charges can be bought against those who get consent by deception. this probably isn't what parliament intended when passing the act.
- Contradicts the civil law on the passing of ownership
~ in civil law, once property has been freely handed over, the receiver automatically becomes the new owner. in Hinks, the ruling suggests that in criminal law the property can still belong to the person who handed it over. this contradiction was the main reason that Lord Hobhouse gave a dissenting judgement in Hinks.
Additional point
~ for theft, an appropriation occurs at the moment that the rights of the owner are assumed, i.e. at the time it is first held. it is not a continuing act.
~ Atakpu and Abrahams 1994 = accused hired some cars in Belgium using fake licenses & passports. when they arrived at Dover they were arrested for theft of the cars. was held they couldn't be convicted of theft in UK courts because the appropriation occurred outside of the country. Prosecution's argument that the accused could be said to be still appropriating when driving in UK was rejected.
Appropriation was a single act not a continuing one.
this decision seems to be too generous to the accused. it also contradicts the law on robbery where appropriation can be a continuing act (see Hale 1978 & Lockley 1953)