University of Cambridge
Criminal Law (Paper 12, Law Tripos) 2021-22
Property and economic offences
Note that the syllabus (sadly!) only contains theft, robbery, burglary (Theft Act 1968, ss. 1, 8,
9), fraud (Fraud Act 2006, ss. 1-4) and criminal damage (Criminal Damage Act 1971, s. 1).
Nicky Padfield gives four lectures: there are four different powerpoint presentations, 4 recorded
lectures and this hand-out covers them all. NB Lectures were recorded last year, but there have been
no significant changes. Hand-out updates the weblink to the Crown Court Compendium.
Introduction
Some preliminary questions:
Why do we have criminal laws regulating ownership? Civil law v. criminal law
Should criminal law adapt to the civil framework: land law, contract, gift, succession,
intellectual property…
How much property crime is there? Perhaps 80% of crime is property crime. Cf. statistics to
be found at e.g. https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/
bulletins/crimeinenglandandwales/yearendingjune2020#long-term-trends-from-the-face-to-
face-crime-survey-for-england-and-wales
Worth thinking about:
Property crime has fallen considerably since peaking in 1995: why? E.g. cars: would you
leave a diamond ring in the street all night and expect it to be there in the morning?
Fraud: 4.3 million fraud offences in the year ending June 2020!
Corporate offenders v individual offenders. Occupational crime.
Evaluating the law: Ashworth, A, ‘Is the criminal law a lost cause?’ (2000) 116 LQR 225
Theft
History: larceny (grand and petit), the felonious taking and carrying away of personal goods.
The Carrier's Case (1473): see Hall, J Theft, Law and Society (1952). The Larceny Act
1916; Criminal Law Revision Committee, Eighth Report, Theft and Related Offences, (1966)
Cmnd 2977.
Theft is an offence triable either on indictment or summarily, subject to a maximum penalty
of seven years imprisonment (though only 6 months if tried summarily).
Theft Act 1968, s. 1(1): A person is guilty of theft if he dishonestly appropriates
property belonging to another with the intention of permanently depriving the other
of it; and ‘thief’ and ‘steal’ shall be construed accordingly.
NB you must read this subject to sections 2-6 Theft Act 1968, as interpreted by the
courts……
(i) Actus reus of theft: ‘the appropriation of property belonging to another’
Appropriation Section 3 TA 1968 provides:
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, (1) Any assumption by a person of the right of an owner amounts to an appropriation, 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.
(2) Where property or a right or interest in property is or purports to be transferred for value
to a person acting in good faith, no later assumption by him of rights which he believed
himself to be acquiring shall, by reason of any defect in the transferor’s title, amount to
theft of the property.
Lawrence [1972] AC 626 Viscount Dilhorne:
I see no ground for concluding that the omission of the words ‘without the consent of the
owner’ was inadvertent and not deliberate, and to read the subsection as if they were
included is, in my opinion, wholly unwarranted. Parliament by the omission of these words
has relieved the prosecution of the burden of establishing that the taking was without the
owner’s consent. That is no longer an ingredient of the offence.
Morris; Anderton v Burnside [1984] AC 320: see Spencer (1984) 43 CLJ 10
Gomez [1993] AC 442; [1993] 1 All ER 1): HL (4-1) Lords Jauncey, Browne-Wilkinson
and Slynn agreed with the speech of Lord Keith, who accepted that no ‘sensible distinction
can be made in this context between consent and authorisation’, and that Lawrence was
authoritative and correct. Cf. the vociferous dissent of Lord Lowry. He relied heavily on the
8th Report of the CLRC (1966), and also on the fact that s. 15 becomes redundant if s 1 is
given the meaning accepted by the majority.
Glazebrook (1991) 50 Camb LJ 389: supporting the approach taken by the majority in Gomez
points out that if one accepted the argument of Lord Lowry’s dissent in Gomez, D would not
be guilty of theft simply because he was guilty of a more serious offence.
NB Law Commission Consultation Paper No 155 (1999): ‘the law of theft exists to protect
proprietary interests recognised by the civil law' (para 8.35).
But does the law does currently reflect this? Note the convictions of those who have ‘stolen’
what in civil law is their own property:
Hinks [2001] 2 AC 241; [2001] Crim LR 162; [2001] Camb LJ 21 (ATH Smith) : always
look at the question they are asked: here: ‘whether the acquisition of an indefeasible title to
property is capable of amounting to an appropriation of property belonging to another for the
purposes of s 1(1) of the TA 1968’
Did Ms Hinks ‘appropriate’ the old man’s money when it was a lawful gift? Majority say
YES, or rather they answer this questions with a yes. Lord Hutton dissents because of what’s
not said on ‘dishonesty’ – but agrees with Lord Steyn on appropriation: but NB Lord
Hobhouse’s dissent, reading s. 1-6 as a whole: “to treat otherwise lawful conduct as criminal
merely because it is open to disapprobation would be contrary to principle and open to the
objection that it fails to achieve the objective and transparent certainty required of the
criminal law by the principles basic to human rights".
The Law Commission had argued that there is no pressing need to criminalise breaches of
contract and the non-payment of debts, even if they are characterised as ‘dishonest’. Is this
what the law currently does? (See Gardner, S [1998] Crim LR 35, and also J.C. Smith’s
comments at [2001] Crim LR 162 that the decision is “contrary to common sense. It is
absurd that a person should be guilty of stealing property which is his and in which no one
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, else has any legal interest whatever”. (JCS died in 2003, aged 81). Shute [2002] Crim LR
445 defends the HL: “With Gomez as their starting point, their Lordships had no choice but to
accept that the concept of "appropriation" must include unimpeachable transfers as well as
transfers that are void or voidable. The fault with this approach, if fault there be, lies
with Gomez not Hinks” (p. 458).
G. Williams, "Theft, Consent and Illegality" [1977] Crim.L.R. 127-138 and 205-213 (and he
died in 1997, aged 86). Williams (a member of the Criminal Law Revision Committee argued
(see p.127): "First, theft cannot be committed by a person who has an indefeasible title to the
property when he commits the act charged as an appropriation, notwithstanding that he may
be morally dishonest … Secondly, theft cannot be committed by an act that is not wrongful
(under the general law) against the person to whom the property belongs."
But now it seems that consent is altogether irrelevant to the concept of appropriation!
The decision in Hinks is both bizarre and amazing: should we rely on mens rea to determine
guilt? John Spencer (at [2018] 8 Archbold Review 4): it “seemed to have deprived the
offence of any intelligible limits”! Perhaps it’s time to think about PH Robinson ‘Should
criminal law abandon the actus reus-mens rea distinction?’ in S Shute, J Gardner and J
Horder Action and Value in Criminal Law (Oxford: Clarendon Press, 1993)?
There are still occasional problems with (limits to) ‘appropriation’: Briggs [2004] 1 Cr. App.
R. 34, [2004] Crim LR 495: D wins appeal against conviction for theft. CA: "where a V
causes a payment to be made in reliance on deceptive conduct on the part of D there is no
‘appropriation’ by D".
Darroux [2018] EWCA Crim 1009; [2018] Crim LR 1006: and Spencer’s comments on both
these cases at [2018] 8 Archbold Review 4. CA (with no enthusiasm!) quashed her conviction
for theft because there had been no ‘appropriation’ of property belonging to another. Care
home manager submitted falsely inflated claims for overtime and payment in lieu of holiday
entitlement, thus reducing her employer's bank balance, she had no control over the bank
account and had not assumed the owner's rights with regard to the bank balance. If she had
been charged with fraud, there would have been no problem! Is there a useful distinction
between (a) D’s direct acts towards V’s property, with V’s fraudulently obtained consent
(=appropriation); and (b) D’s acts causing V to transfer his property with V’s fraudulently
obtained consent (= no appropriation until D acquires it)?
Meaning of Property Partially defined in s. 4 TA 1968:
(1) ‘Property’ includes money and all other property, real or personal, including things in
action and other intangible property.
What can be stolen? Money (coins and bank notes). Even the piece of paper on which a
cheque or exam paper is written. A thing in action (or ‘chose in action’) is a property right
which can only be claimed by action and not physically taken e.g. a debt for a fixed sum. An
account held at a bank or building society is a thing in action: but once the account is
overdrawn there is no thing in action which is capable of being stolen. Intangible property
which can be stolen includes patents, copyrights, and electronic transfers
Oxford v Moss (1979) 68 Cr App R 183
Bitcoin and other cryptoassets probably are property and can be stolen? see Taylor and
O’Floinn ‘Bitcoin burglaries and the Theft Act 1968’ [2021] Crim LR 159. NB The
Computer Misuse Act 1990 created specific offences applicable to those who dishonestly
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