Criminal Law - Appropriation
This essay will critically discuss the effect of the [courts’] overbroad view in reading of the element of appropriation which led to the offence of theft being interpreted as an extraordinarily wide one.
Since the introduction of the Theft Act 1968 there has been inconsistency in the interpretation of appropriation as courts and commentators have grappled with the intuition that appropriation must entail some subjective element and cannot be purely objective.
With the aim of moving from the protection of possession to the protection of property, theTheft Act 1968 replaced the LarcenyAct 1916 actus reus requirement of 'taking and carrying away' in the offence of theft with the requirement of 'appropriation' defined as 'the assumption of the rights of the owner'. This change, however, has caused more problems than it solved, as courts have failed to interpret the concept of appropriation with any consistency.
As it will be argued, the controversy is due to the intuition that appropriation cannot be purely factual but must entail some mental element.
According to section 1 of the TA 1968: A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it'. Appropriation is defined in section 3(1) of the TA 1968 as 'any assumption by a person of the rights of an owner.., 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'.
The debate seems always to revolve around one central question, namely whether appropriation should be regarded as a purely objective requirement and, therefore, ascertained without any reference to the subjectivity of either the defendant or the owner of the thing, or whether some mental element is entailed in the concept of appropriation.
But both courts and theory have found it very difficult to associate subjectivity
Since the introduction of the Theft Act 1968 there has been inconsistency in the interpretation of appropriation as courts and commentators have grappled with the intuition that appropriation must entail some subjective element and cannot be purely objective.
With the aim of moving from the protection of possession to the protection of property, theTheft Act 1968 replaced the LarcenyAct 1916 actus reus requirement of 'taking and carrying away' in the offence of theft with the requirement of 'appropriation' defined as 'the assumption of the rights of the owner'. This change, however, has caused more problems than it solved, as courts have failed to interpret the concept of appropriation with any consistency.
As it will be argued, the controversy is due to the intuition that appropriation cannot be purely factual but must entail some mental element.
According to section 1 of the TA 1968: A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it'. Appropriation is defined in section 3(1) of the TA 1968 as 'any assumption by a person of the rights of an owner.., 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'.
The debate seems always to revolve around one central question, namely whether appropriation should be regarded as a purely objective requirement and, therefore, ascertained without any reference to the subjectivity of either the defendant or the owner of the thing, or whether some mental element is entailed in the concept of appropriation.
But both courts and theory have found it very difficult to associate subjectivity