'The Boundaries of Theft': Dr Findlay Stark

Good morning, everyone, I am Dr Findlay Stark, and I’m an Associate Professor here at the Faculty of Law. One of the papers that I teach is criminal law, which is a paper that everyone will do in their first year of study if they’re doing a three-year degree, and their second year of study if they’re doing the two-year affiliate programme. Criminal law is taught over 40 hours, so obviously I’m not going to be able to teach you much of criminal law in 45 minutes, but I am going to cover one precise area of it, and that is the boundaries of the crime of theft. I will ask you about other crimes as well along the way, and whenever I ask you a question, I’m not expecting you to have any knowledge of the law, so do not feel that any answers are silly or that you don’t want to offer them. There are correct and incorrect answers to some of the questions, but I don’t expect you to know them.
So, moving on, I should start by explaining how we build crimes in general because that’s important to understand if we’re looking at the boundaries of an offence. As you probably know, lawyers are pretentious, so they like to put things in Latin, and the relevant Latin here is usually actus reus and mens rea. Actus reus just means the prohibited behaviour that you have to engage in to commit the relevant offence, so if you were thinking about the crime of murder, for instance, what is the thing you have to do before you can be convicted of murder? Yes?
Participant: You kill someone.
Kill someone. So the actus reus is causing the death of a human being. The next element that you add on to most crimes, and certainly the ones you’ll tend to look at in a criminal law course is mens rea, and mens rea is usually translated as ‘guilty mind’, but we tend to call it the fault element nowadays. So, you’ve killed someone that may be a mishap, or it may be manslaughter, or it may be murder, what’s going to make the difference there is usually mens rea. So, if we’re thinking still about murder, what do you think has to be going on in your mind at the time you do the act that kills someone? Yes?
Participant: You have to have intent to do that.
Right, to do that, do what?
Participant: Kill that person.
Right, so one form of mens rea in English law is the intention to kill. What if I take a baseball bat to someone, not meaning to kill them but meaning to really hurt them and I end up killing them? How many of you think that should be murder? Hands up. The vast majority of you. In English law that would be murder because the mens rea of murder in English law is the intention to kill or do grievous bodily harm. And grievous bodily harm just means really serious injury. So, that’s one aspect of the boundaries of murder which is very controversial. Some people say, well, murder is when you’ve intentionally killed someone, so this GBH murder is illegitimate, your mind does not stretch to the full consequences of your act in the way that it ought to. Other people would say, well, if you mean to really harm someone you are taking the risk that you are going to kill them, and you’ve opened yourself up to the bad luck of them dying and that’s going to be on you as murder. So, that’s the kind of debate that one would look at in mens rea if we were talking about murder.
The final ingredient of a crime in English law is the absence of defences. So I might kill someone, I might mean to kill them, what kind of defence might defeat a charge of murder? Yes?
Participant: Insanity.
Insanity, right, so I may be suffering from insanity as it’s called in English criminal law, that would defeat my liability entirely for murder. Yes?
Participant: Self-defence.
Self-defence, so if I think that person is coming to kill me and that is why I intentionally kill them then subject to terms and conditions, there are always terms and conditions in law, I could be acquitted of murder and manslaughter. Yes?
Participant: Automatism.
Right, so it maybe that I have suffered a blow to the head and that has disassociated me from what I’m doing in a way that’s similar to insanity, gets me automatism. And there are some defences as well in English law... yes?
Participant: Negligence.
Negligence, so negligence by the person who’s been killed?
Participant: No, by the person who’s committed the murder, so let’s say they were speeding, or they were reckless, it may have been reasonably foreseeable, but they were still reckless, and the murder happened but they didn’t intend to commit it, let’s say.
Right, so that would be an absence of mens rea, so you’d be arguing in that case that you don’t even have the second ingredient. So, before we even get onto defences, which are things that usually come across after we’ve got actus reas and mens rea you’d say I didn’t intend to kill. What do you think you would be convicted of in that situation if you were negligent or reckless?
Participant: Manslaughter.
Manslaughter, right, that’s how you get the sort of ladder of homicide offences in England and Wales. There are also what we call partial defences, so that’s things like what we used to call provocation that we now call loss of control. So, if someone has really insulted me and that’s caused me to lose control and kill them it might be that I have access to loss of control defence, that doesn’t mean I’m off the hook entirely for a homicide, but it does mean that it is manslaughter rather than murder. Now, why is that difference going to make a real difference to how my life goes from that point on? What’s the penalty for murder?
Participant: Life sentence, compulsory.
A mandatory life sentence. What is the maximum penalty for manslaughter? What do we think it might be?
Participant: Ten years?
Life, but it’s discretionary, so if I get from murder to manslaughter suddenly, I’m not mandatorily having a life sentence, I am having one by the judge’s discretion, and that judge is presumably going to not give me a life sentence unless my killing is particularly bad. Okay, so if you have actus reas plus mens rea and there are no defences that is how you get to criminal liability, that is how we determine the ambit of a crime. Now, I’ve used murder as an example because it’s a very famous crime if that’s the correct term. I’m going to continue with murder whilst I talk about the sources of criminal law, and then we’re going to look at how this works in the law of theft. So, I said the sources of criminal law, if you wanted to find a definition of the law of murder where would you look? You all live under the law of murder, where would you look to find out what it actually says?
Participant: Did Lord Coke define it?
Ah-ha, so you’ve got the third one first, so I won’t click just yet. Some parts of the law of murder in England and Wales are defined by Lord Coke, it’s spelt Coke just to trip you up, it’s like Magdalen College. Coke said that it was the unlawful killing of a creature in being with malice aforethought, and that is the basis of our modern law of murder. Now, Coke was just a very influential lawyer writing hundreds of years ago, so some of the sources of contemporary English law are people writing down what they thought the law was in 1780, or something like that. And that might surprise you because most libraries presumably do not have a copy of Coke’s book. So, if you’re thinking about accessibility of the law, you might have a problem. Where else might one look? Yes, in the check shirt?
Participant: Parliament?
Parliament, right, legislation. You might think rationally that there is an act called the criminal code act, just as in most US states there will be a penal code that you can go and look at. We are an uncodified system though, so although lots of crimes are defined in statute, some of them remain at common law. Statutes might interfere with their boundaries, so in murder, for example, I mentioned the loss of control defence, that is defined in statute, but the core offence of murder is not, it continues to exist at common law. Now, you had your hand up, did you have a question?
Participant: Do you get a more working definition through judicial precedent?
Good, so the third source that you’re going to have to look at if you want to work out what the law of murder is is judicial decisions by certain courts. So, if we put all that together you’re going to have bits of statute passed by parliament, you’re going to have caselaw decided by courts, we’ve only very recently been allowed to take photos of courts, so this is like my go to picture of the Court of Appeal. But when the Court of Appeal decides a case, it will tend to set a precedent, and that means Crown Courts in future will have to do what that court has said unless and until the Court of Appeal thinks better of it or the Supreme Court comes along. And the third source is these institutional writers, so you go back and look at these very old books where they wrote down what the law was, and then it goes into Latin for half of it because everyone was expected to be able to read Latin if they were lawyers.
So, these are the kind of sources, don’t worry, we would translate this for you if you’re studying criminal law, that you would be looking at through a law course. Now of course, everyday people do not have... they’ve got access to statute, it’s on the internet, it’s not updated properly, which is a bit of a problem, but it is in theory there. Case law, unless it has happened very recently and it’s on one of the three databases, those are behind a paywall or in a law library, and institutional writers, these books are very old, some of them have been digitised, but some of them haven’t. So, you’d need to think if you were studying criminal law about the accessibility of the law as well, and about whether this mishmash of sources is the best way to conceive of criminal law or whether we should have a public document and publicly available cases that would tell you what the law is.
Those then are your introductory lectures, so to speak. That would be about four hours in real life. What I want to do now is look at a specific crime and how all of this hashes out, and the offence that I have chosen is theft. Now, you might think, look, I know what theft is, it’s an everyday term, but of course the law has to concretise that everyday wrong to turn it into a workable crime, and the law does that in the handily named Theft Act from 1968 Section 1. It says that you are guilty of theft if you dishonestly appropriate property belonging to another with the intention of permanently depriving the other of it. So, going back to what I told you a few minutes ago, which parts of this seem to be the actus reus? Yes?
Participant: Appropriating the property.
And who must that property belong to?
Participant: Another person.
Yes, so appropriating property belonging to another. So, depending on how broadly we interpret those terms, we set the actus reus limits on theft. The mens rea then would be intention permanently to deprive and dishonesty. Dishonesty is actually an example that we use to show that this actus reus, mens rea distinction is not always as neat as we might like. Because you might think that dishonesty actually applies just as much to what you’re doing as to the mental state with which you are doing it. So, these very basic distinctions that we like to draw to get muddied quite a lot, and that’s a large part of studying law is appreciating the basic distinctions, and then building on them. Now, there has been a lot of debate about what every one of these concepts means, for example, in dishonesty do you have to realise yourself that what you’re doing is dishonest before you have committed theft? The answer for a very long time was yes, you have to realise that most reasonable people would conceive of what you are doing as dishonest. That was changed by the Supreme Court five years ago, and they said “no, now it’s enough that the reasonable person would think what you’re doing is dishonest.” So, even though this act is from 1968 we’re seeing changes in the last five years that in theory widen liability.
Property has given rise to a number of problems, so if you think about electricity, how many of you think that electricity is property? Just on a common sense reading of that term, property, does anyone thing electricity should be property? No, and the courts reached the same decision pretty early on, because prosecutors were charging people who were bypassing their electricity meter with theft. So, now we have a specific crime called abstracting electricity to deal with the point that property does not stretch to that activity, so it can’t be theft. Belonging to another, I abandon a bag of clothes outside a charity shop, somebody picks it up before the charity shop has got to it and takes it away. How many of you think that bag belongs to another? Not many of you, but it has been held by our courts that it does, it either belongs to the person who was depositing it because although I’ve abandoned it, I didn’t just abandon it for anyone to pick up, I wanted the charity shop to pick it up. Or alternatively, it belongs to the charity shop already depending on the circumstances. So, that’s another area where your intuition might not have accorded with what the court’s actually interpreted this to mean.
Finally, the intention permanently to deprive the other. Does anyone know what TWOC is? Anyone watch Police Interceptors or any programmes like that? TWOC stands for taking without consent. What is it that people have usually taken if it’s Police Interceptors that we’re talking about? Yes?
Participant: Cars and other vehicles.
Cars, now, why do you think we needed a specific crime called TWOC? Why not just say you’ve stolen the car? Yes?
Participant: You might be intending to just dump it somewhere and not permanently keep it.
So, as a social phenomenon, I think joy riding has sort of fallen off the newspaper’s radar, but it was joy riding, it was people stealing a nice BMW, driving it around, and then leaving it with its hazard lights flashing in an industrial estate. They were very aware that the person who owned the car would get it back, and they had not intention of keeping the car. So, again it fell off the radar of theft, it was out-with the boundaries of that crime, and so we had to invent a new one, and that’s what TWOC is. So, all of these elements have given rise to debate about the boundaries of this crime, but the one that I want to focus on for the remainder of this session is appropriation. So, before I get into how the law defines appropriation, does anyone want to offer me a sort of everyday language definition of appropriation? Yes?
Participant: Declaring that something is yours, so this is my water bottle.
Right, declaring it to be yours, so whose isn’t it?
Participant: Anyone else’s.
Anyone else’s, so it seems to be asserting that you have rights over this property in a way which is exclusionary, usually, of other people having those rights, and that is broadly what the Act says. So, parliament has started us off on the road to understanding appropriation by defining it in Section 3 as any assumption by a person of the rights of an owner, and they say that includes where you come by the property innocently without stealing it, and then later assume the rights. So, if I borrow something, for example, and then decide I’m never giving that back, I’m going to keep it, that might become theft. Now, there are a range of cases dealing with the boundaries of this term, for example, do you have to assert dominion over all the rights of the owner or is it enough that you just adopt one of the rights, for example, touching the property? Answer, it only has to be one of those rights.
The area that I want to focus onto day is whether you can appropriate something under this definition where the owner of the property has consented to you doing whatever it is you have done with their property. So, this gave rise to four House of Lords decisions between 1971 and 2000, the dolphins are relevant, I promise. Now, you’ll probably think of the House of Lords as a legislative body, but until 2010 when it became the Supreme Court, the Judicial Committee of the House of Lords was the highest civil and criminal court in England and Wales. So, when it tells you what the law is that’s it until that same court decides differently in the future or parliament intervenes. So, the fact that we needed four decisions in under 30 years shows you that something went a bit wrong, that’s not how this is mean to work. It’s meant to be the case that once the House of Lords sets a precedent, we know what the law is.
So, let’s explore the facts here and see why it gave rise to so many cases. The first case is called Lawrence. Lawrence was a taxi driver, and he was outside Waterloo Station. An Italian student who was visiting London got into the back of Lawrence’s taxi and gave him an address. Lawrence said, “oh, that’s a very long journey, that’s going to be very expensive”, and the Italian student gave him some money, and he said, “no, no, no, that’s not enough.” So, the Italian student passed his wallet to Lawrence, and Lawrence helped himself to more than the fare was possibly worth. And his argument was I didn’t appropriate that money because the student consented to me taking the money. How many of you find that convincing? Yes, why don’t you find it convincing, this consent-based argument? Yes?
Participant: It was dishonest, he didn’t tell him the truth, he lied.
Yes, so if his argument is this person consented, what are we going to say in response?
Participant: He didn’t really know.
Yes, not really, because consent assumes that you know what you are consenting to, what he consented to was the taking of the legal fare, it wasn’t the taking of whatever Lawrence wanted to help himself to. So, on that basis, would you be happy with him being convicted of theft? Right, is everyone else happy? Hands up if you think that sounds like theft. Right, so there are two ways of writing down the relevant rule here to get to the conclusion that this is a theft. One is consent is irrelevant to the question of whether someone has appropriated property, that’s the wide rule. The more narrow rule is where consent is vitiated by deception or fraud you can still have an appropriation in those circumstances. Notice that that narrower rule means that you’ve still got the open question of what if there’s no fraud? That is the question that gave rise to future decisions.
The next one is Morris, so one thing with teaching law particularly as you do it over time is that your references and the case references go out of date very quickly. Morris involved items in a shop that had all been labelled individually, so this is from before barcodes being on everything, so the price on the item is the only insight that the cashier has into how much the item should cost. And what happened in Morris is you had defendants going into shops and switching the labels for a low value item and putting them on a high value item. They would then go to the cashier and hope to pay the lower price. So, again, the idea was this has to be an appropriation of the property, and again these defendants said, well, you consent to everyone who’s in the shop touching the property, and I’ve not done anything with it other than touch it, so you consented to the relevant thing, unlike in Lawrence, I shouldn’t be liable for theft. So, who feels sympathy for that argument? No, so what’s the problem this time? Why does this consent seem worthless in terms of the actus reas? Yes, at the back?
Participant: I think because the store is consenting for the customers to buy it at the already established price, they’re not consenting for it be any price the customer chose.
Right, so one reading of what the House of Lords says in Morris is if I go into a shop, not intending to steal, I can pick up the property, and I won’t be appropriating it. But if I go in for dishonest purpose, you haven’t consented to me touching it, so that’s why it’s still an appropriation. Now, one of the difficulties with this argument, of course, is that the theft is committed as soon as anyone who wants to be a shoplifter touches anything, and we might think well, that looks like an attempted theft rather than a full theft, but the courts have led us down this road. Yes?
Participant: You know in Morris, don’t they act like the owner? So, isn’t he appropriating the rights of the owner because he’s acting like the owner, but then actually not...
Yes, and the acting like the right of the owner with consent is what they said they were doing, and the House of Lords said, no, well, one reading of the decision is there is not consent, so we have just appropriated this property. As soon as you touch it that is taking one of the rights of the owner, I’ve got the right to touch my laptop, if you touch my laptop, you’ve appropriated it under the law of theft. If you have all the other elements of theft, you’ve stolen my laptop as soon as you touch it, even if I then grab it off you and say go away. So, you can see that this offence is beginning to expand.
Next you have Gomez, so Gomez is a more complicated one. Gomez works in a Hi-Fi shop, so the parents will know what I’m talking about, I’m not sure how many of you will know what Hi-Fi’s are, but basically just a stereo system shop. And one of his friends comes in and offers a cheque for payment for one of these, now a cheque is a piece of paper that you used to sign, blah, blah, blah. Anyway, the manager of the shop is suspicious, and he says to Gomez, can I actually trust that this cheque won’t bounce, that we’ll actually get the money in the end? And Gomez said, “don’t worry, it’s as good as cash.” On that basis the manager says okay, complete the transaction, and the Hi-Fi equipment is sold. Of course, the cheque bounces and the company does not get the money. So, again Gomez said, well, there was consent here, the manager knew that he had suspicions, but he still decided I’ll take that risk, okay. Does anyone have sympathy for that argument? No, what were you going to say?
Participant: I was going to say doesn’t the manager detrimentally rely on a promise to his downfall?
Right, again, you could say this is like Lawrence, you’ve lied in a way, in a more express way than happened in Lawrence, and that deception is what vitiates consent. So, again, we could say there’s actually no consent here at all, and that seems to again leave open the possibility that if there’s valid consent, which is not vitiated by fraud or coercion that will not amount to an appropriation. It’s only where you’ve got these ingredients of deception, or some sort of secret and nefarious purpose like in Morris that this can become part of the actus reas of a crime.
Participant: Can I just ask a question?
Yes, of course.
Participant: In the UK legal system, is it for the prosecuting party to prove that it doesn’t have consent or the defender to prove that he does have, which one is it?
It would be the prosecution would have to prove there’s an appropriation, and the defendant in all cases is saying you can’t do that because of consent, and the court is consistently saying the defendant is wrong, so you have proved the relevant elements.
So, now we lead onto Hinks, so Hinks was a woman who befriended what the court refers to as a vulnerable man. Now, his name is the best name in criminal law, his name was Mr Dolphin, and Mr Dolphin was marched, that’s one pejorative way of explaining it, to a cashpoint every day by Hinks and withdrew £350, which at that time was the most that you could withdraw, and he would give this to Hinks. Now that happened to the tune of about £65,000, so this is a long-term escapade so to speak. He also gave her his television and various other things like that. Now, when Hinks was charged with theft of the money and the television, she said he gave it as a gift, he was merely showing his generosity to me by giving this money, it was fully consensual and therefore, this is not appropriation and not theft. Now, how many of you want to convict Hinks of theft and how would you try to get there answering this consent argument? Yes?
Participant: When you mentioned Mr Dolphin was a vulnerable person, it depends whether he had the relevant capacity to give consent in that situation.
Right, so what kind of capacities do you think are relevant?
Participant: So, I guess whether he understood the actions that he was taking, so whether he had the mental capacity to understand how that action would impact him in the future.
Right, so if he had that capacity, would you say that his consent is valid and there is no appropriation?
Participant: I think it depends because it doesn’t imply that she’s taking it by force or forcing him to give that consent, so if he’s got competence and he’s got the mental capacity to give the consent I think that should stand.
Right, so, the House of Lords when it was hearing Hinks had to address the question of whether Mr Dolphin had the basic civil law capacity to consensually give gifts, and they concluded, using the same kind of reasoning that you’ve just outlined that yes, this was a perfectly valid civil law gift. So, on that basis, are you happy to acquit Hinks of theft? You have your reservations. So, what were you going to say?
Participant: Wouldn’t it be an appropriation anyway, it doesn’t really matter because she’s appropriating the rights to use the property, to own the property, it doesn’t matter whether he consented or not because dishonesty is a later element to consider.
Right, so you might say all of the relevant discussion here should occur under dishonesty, but then that seems to make the actus reas of theft, doing anything with anyone’s property even if they fully, validly consent to it. So, what might be the worry then?
Participant: It’s really broad.
It’s a really broad actus reas, and remember, the mens rea is dishonesty, and that’s established by what reasonable people think, not what you think, an intention to permanently deprive, which on most cases is going to be very easy to prove because courts and juries are not going to believe you when you say, oh, I was always going to give the money back at some unspecified future date. The court will just say we don’t believe you; you are guilty. So, if we take seriously the need to limit this crime then it seems we have to at least take this consent argument seriously. Furthermore, what’s the problem if the civil law says this is fine, but the criminal law says this is theft? Yes?
Participant: You’ve got an ambiguous legal system where no one knows whether they’re committing an offence or not.
Right, so it seems that it’s going to lead to a lack of clarity in the law because you might be engaging in perfectly valid civil law conduct and then later find out you’ve committed a crime. Furthermore, why do we have a crime called theft? What are some reasons why we even have this crime? Yes?
Participant: Is it in order to make sure that society is fairer because of the fact that it’s commonly known that we exchange money for goods and services, obviously there are going to be some people that are going to break the rules or game the rules, so we need something that can sufficiently cover that.
Right, so one explanation for why we have the crime of theft is it is reinforcing and protecting the civil law of property, and if you take that understanding of theft very seriously then there is a problem in saying civilly this was perfectly valid, it was a gift, criminally it is theft. So, can anyone think of an answer to that argument which might think of another reason why we might want to say Hinks engaged in theft? One of my colleagues likes to emphasise that Hinks was significantly younger than Mr Dolphin, and that might give you a hint. What might we worry about if we’ve got this woman who’s significantly younger that this man, befriending him and he is vulnerable. Yes?
Participant: Is it in a sense of exploiting vulnerability?
Right, so we might say that yes, there is a dissonance between what the civil law is saying is right and wrong and what the criminal law is saying is right and wrong with regard to consented gifts, but here we have someone getting property by exploiting someone’s vulnerability, and that is why this must be recognised as appropriation, and it must be theft. So, what do we think of that argument that we should take the idea of exploiting vulnerability to be the basis of theft? Does that make sense to anyone? I think there’s a hand up here earlier.
Participant: Yes, I was going to say I think that’s fair.
Yes.
Participant: I think it really captures the spirit of the law because even though it’s very clear cut and rigid in a sense, obviously judges have different ways of interpreting the law, whether it’s either doing it literally or going through say, a propulsive approach in a sense, and I think it really captures the essence of it.
A counter argument to that is going to be, but it doesn’t look like theft because what we think of in terms of theft is clandestinely taking someone’s stuff and running away, we don’t think of it as being exploiting someone in a relationship such that they then fully, validly give you gifts. So, what do you make of that argument?
Participant: I’d say in this instance this item has still been taking from them, they’ve still been personally deprived of it, it’s still been dishonestly taken, and I’d say that exploiting a vulnerable person in order to assume their rights, obviously you could argue that that vulnerable person doesn’t have the same amount of capacity, and I’d say in that sense you’re assuming the rights of owner. If they don’t have the capacity to do so you’re going in and you’re acting in their capacity, so I’d say that in itself is theft.
But the House of Lords says he does have the capacity because that’s the problem, the House of Lords is saying this person fully, validly consented, he is not vulnerable to the extent where we’d say, look, he couldn’t even give consent here, he’s managed. And that’s why people find this very difficult to take seriously sometimes as an idea of theft. So, there’s a hand up there and then a hand up there, so at the back.
Participant: It’s more of a question. On what grounds was the guy labelled as vulnerable then?
They don’t tell us in any detail, so this is one of the things about law reports, which is the main thing that we rely on to work out what the law is. They don’t go into details that we are immediately going to think are relevant, all they say is look, experts were consulted, and they said, yes, he had the capacity validly to consent to the gift. Yes?
Participant: One follow up question. What type of experts was it, like psychological ones?
It would be a medical expert in a relevant field, again, it won’t tell you in the law report, but basically you get an expert in when the jury or the court cannot reach its own view on the relevant matter. So, if you wanted to get an expert into say that you have a particularly bad temper and that meant that it took less provocation to rile you up, et cetera, it’s very likely the court will say, well, juries know broadly people’s temperaments, and they know that different things annoy different people to different levels, so we’re not going to allow an expert in there. But when you get to this person has limited mental capacity, which is presumably what we’re talking about, you can get medical experts in to speak to him and say, yes, we think that he does actually understand enough of what happened to consent to the gift. So, there’s a question here as well.
Participant: This is kind of leading on to the previous question, but if the court has determined that they’ve got the relevant capacity, surely that poses a bit of a risk, is the law regulating our private lives too much? Because I guess any of us in a new relationship would be potentially vulnerable to... like you’d have to question everything, whether any gift you’re giving is potentially exploitation, so is that a risk of the state having too much control over our interactions?
Which is precisely the point about criminalisation is, the wider the criminal law gets, the less dedicated the realms of freedom you have. So, you can be pretty assured if consent is a valid defence to theft, and it means that there’s no appropriation that you’re not going to be committing the criminal law. Whereas, as you say, people in Hinks’ situation who may well be trying to exploit him so you don’t feel sorry for them, are going to be uncertain about their criminal liability, but even people in more ambiguous situations are now going to think, well, I’d better not get into a relationship in that way with that person, and that does seem to interfere to a great an extent with their private lives. Yes?
Participant: It’s quite a similar point to what was just asked, but would you say about people who enter romantic relationships in which their intention, especially if they’re a lot younger than the person they’re pursuing, where their intention is to use them for financial benefit, but they have a romantic relationship in which the person is more vulnerable that believes that they have a connection or whatever. Would that still fall under theft and exploitation if their intent is to use them for their money? Or would you just think of it as a relationship?
We’re not absolutely certain because that’s exactly the ambiguity that this creates. So, it’s really going to turn if it is an appropriation on your mens rea, and particularly the question of do we think as 12 random individuals on the jury that what you did by the reasonable persons standard was dishonest? So, there involves a lot of guesswork in that question, and as I said earlier on, that’s got worse in the last five years because previously you had to know subjectively that the reasonable person would regard your conduct as dishonest. So, even if you thought it was fine, if you knew most people disagreed that was enough for mens rea, so that seems to lead to the conclusion that if you had absolutely no idea that anyone would think this was dishonest then you were off the hook. And that might help the person in your kind of situation, they might say, look, I genuinely didn’t think a reasonable person would think this is a problem, but they cannot make that precise argument any longer.
So, with all that in mind, how many of you want to convict Hinks of theft here? Not many of you, a few of you. So, the conclusion is she was ultimately liable for conviction for theft, or so the House of Lords decided, so they expanded theft to cover fully consensual, unproblematic civil law consent. Now, if I had some of my civil law colleagues here, they would begin shouting at me at this stage and say, well, actually undue influence is a ground that might vitiate consent, et cetera, but that’s not how they grounded the decision in Hinks. They said consent is utterly irrelevant to the question of appropriation, the view that you outlined earlier. So, that means that everything turns now on intention permanently to deprive, and dishonesty. Now, how many of you think that Hinks was dishonest? Okay, so how would you respond to the argument that Hinks was not dishonest because she believed that this was fine in civil law, and indeed, it was fine in civil law? Yes?
Participant: I was going to say that if the dishonesty, is she hinging the dishonesty only based on the law? Or is she hinging it based on her actions? Because if she’s only hinging it based on the law then I wouldn’t say that it’s fair. In essence, I’d still call that dishonest if she’s deliberately phrasing it or acting in a manner that is intentionally dishonest but stays clear of the law, I’d say that is inherently dishonest and you’re intending to commit something that you know is unlawful, you know that other people are going to look down upon you for doing it and you still do it anyway.
You say unlawful, but the only thing that’s making it unlawful is your conclusion that it’s dishonest. So, she’s saying most people would think this is dodgy, but it’s perfectly lawful, should that not be a good argument?
Participant: I don’t think so.
So, the House of Lords agree, they don’t actually spend much time on this aspect of dishonesty and decision, and the main problem for them is just as Section 3 defines what it means to appropriate property, Section 2 of the Act tells you some things that aren’t dishonest, so this is a really helpful way of defining things, you lay out some things that aren’t the thing, and then the rest is left up to a jury. But one of those things is that you believe you have the right to take the property, and of course, the problem that no one noticed in the House of Lords in Hinks or the majority anyway, is that she believed that she had the right to take the property because she did in civil law have the right to take the property. That gets lost because the House of Lords is very clearly trying to convict her, they’re very clearly trying to get the law to work in a way that will convict her, and one reason for that is if Hinks had been acquitted of theft, she wouldn’t have been convicted of anything.
In 2006 though we invented a crime and it’s called fraud by abuse of position, and the basic point of fraud by abuse of position is you’re in a situation whether formally, legally, or just informally where you can reasonably be expected to look out for other people’s finances, and you abuse that position dishonestly. So, how many of you think that fits what Hinks did? Right, so nowadays the House of Lords would probably feel less pressure to expand the actus reas and ignore parts of the mens rea that were inconvenient for them because another crime existed or exists now, but because that crime did not exist until 2006 and Hinks is from 2000 that motivated them. And you might think that’s terrible, but a lot of criminal law judgments are explained on exactly that basis, that the judges are worried about the consequences of reaching a certain conclusion in terms of people getting away with things look morally wrong, and that’s another thing that you need to think about when you’re considering the legitimate boundaries of crime.
One final point and then I must shut up. Yes?
Participant: I wanted to say that why do they always have to expand what the Act encompasses instead of potentially making a more purposive approach or looking at the spirit of the law? Because if they go in and they constantly expand the Act that could have unintended consequences on encroach on people’s freedoms. Why don’t they go in and look at what parliament intended in, I don’t know, the preamble or something?
Yes, so as you’ll see if you study law, there are various approaches to statutory interpretation, and I think the frankest answer to your question is because it would have been inconvenient for them. They’ve got an outcome in mind, they want to reach it, they’re not going to look at parliament’s intent. They’ve got an outcome in mind, parliament seems to have intended that, great, parliamentary intention is important, and let’s add it to the mix. So, the way that judges formulate the judgments is very purposive in a different sense, which may worry you a bit more than the parliamentary. Okay, thanks very much that is my time up, but thank you.