Essay 1 - Recklessness Essay 2 - Theft 1
“A person is reckless if (1) he does an act which in fact creates an obvious risk … and (2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk and has nonetheless gone on to do it.”
([1982] AC 341, at 354, per Lord Diplock)
What does this statement mean? Is some other definition of recklessness
to be preferred? Does the law draw
a clear and satisfactory distinction between reckless and negligent behaviour,
or between recklessness and intention?
Lord Diplock’s words are essentially an attempt to define recklessness in Criminal Law in order to settle once and for all the confusing and often misleading divisions which have existed in the common law. Certainly the statement foes not constitute a statutory proclamation and indeed Diplock’s authority may even be overruled in the not too distant future, but his contribution here has been influential and still remains a powerful precedent for future judicial decisions.
This
extract is in fact taken from Diplock’s judgment in R.v Caldwell, where
the defendant claimed self-intoxication had meant that the risk of endangering
lives had not crossed his mind when he set fire to a hotel. Lord Diplock ruled that his failure to
give thought to there being any risk, although not falling within the previously
defined meaning of recklessness, which will be discussed later, indeed amounted
to the same and that the law should be changed accordingly. What the law lord essentially did was to
expand the scope of recklessness and we must now examine exactly how and
why.
To
begin, let us dissect Lord Diplock’s statement and assess each section in turn,
to see exactly what he means.
Firstly,
a reckless person must do “an act which… creates and obvious risk”. There are three issues to be resolved
here – whether the person has actually done the act, whether that act
created a risk, and further, whether the risk created was in fact obvious. However, the first two points are
matters of fact, to be decided by the jury in the particular circumstances of
each case, This leaves the third,
somewhat trickier requirement of the risk needing to be obvious.
We must
ask, “obvious to whom?”. Before
Caldwell, the test for recklessness was subjective, i.e the risk must
have been realised by the defendant himself. This can be seen in the decision of
Stephenson [1979] QB 695, where a tramp set fire to a haystack in which
he was sleeping, but due to his schizophrenic nature and condition, he was
deemed not to have been able to foresee or appreciate the risk that the haystack
may have burned down. His appeal
against conviction was therefore allowed, and he was not reckless. This clearly shows that pre-Caldwell,
the risk had to have been obvious to the individual defendant. In practice, however, this leads to the
possibility of many defendants simply stating defences which may be perfectly
reasonable, to the effect that the risk was not obvious to them. For example, in Caldwell, the
risk was clearly not obvious t the defendant, since he was intoxicated. However, his subsequent conduct did seem
reckless and certainly punishable as such.
It was felt, therefore necessary to re-invent the test for recklessness
so that it was in fact objective.
Lord
Diplock’s answer to this problem was to refer to a risk that the reasonably
prudent person would find unjustifiable to take or would have foreseen. This major change would in fact reverse
Stephenson’s acquittal if the same rules were applied, since the risk of the
haystack burning down would certainly be obvious to the reasonably prudent
person, and so the defendant would be reckless. This objectivity hardly seems fair in
many circumstances – if the defendant is genuinely incapable of appreciating a
risk, how can he be held to be reckless in creating it? This is surely unjust and contrary to
the law’s purpose – we would not wish to convict a blind man of indecent assault
if he was unable to control his movements as an ordinary-sighted person, and yet
it is his inherent failure to appreciate what a reasonably prudent person would
which would cause the offence.
Similar injustices are to be found in case law also, such as in
Elliott v C [1963] (see also Stephen Malcolm R.[1984] 79 CrAppRep
334). Here, a backward 14 year old
girl poured white spirit into a garden shed and threw two lighted matches onto
the floor, causing the destruction of the said outhouse. A prosecution appeal against acquittal
was allowed since the Divisional Court was bound by Caldwell to conclude
that the reasonably prudent person would have appreciated the risk, and so the
defendant was reckless. This
appears to represent and appalling miscarriage, since it was confessed at the
original trial that if the defendant had thought of the possibility of risk, the
risk would not have been obvious to her.
If someone has a true inability beyond their control to foresee an event
or risk, then surely he should not be punished if the risk or event ensues. Unfortunately, the courts are now bound
by Lord Diplock’s words to be objective in their tests of recklessness, and
there appears to be no obvious escape therefrom.
We can
now progress to the second limb of Diplock’s propositions. Here, the noble judge bisects the notion
of recklessness into advertent and inadvertent recklessness, with the former
being the new inclusion of failure to give thought to whether the risk
exists.
It is
interesting to note at this point however, that the risk need not necessarily be
obvious at all in the second case but must be obvious in the first
instance. In his speeches, Lord
Diplock referred to the risk being “obvious” only in relation to inadvertent
recklessness, and talked of “any such risk” as opposed to “some risk” with
advertent recklessness. This is
sensible, since, as already shown, the failure to give thought to a risk relies
on the fact that the risk is obvious to the reasonably prudent person, and so
inadvertent recklessness necessitates the risk being “obvious”. However, if the defendant has already
realised the existence of “some” risk, then its being obvious or not is
irrelevant – he knows there is a risk, and yet he continues with the act
regardless, and is therefore reckless.
The fact that the risk is obvious may represent evidence that the
defendant knew of it, but nothing more.
Lord
Diplock’s inadvertent recklessness indeed effects a far wider-reaching scope to
the law of recklessness, and his intention is clearly to punish those whom the
public would deem reckless and would wish to be retributed therefore. By condemning the lack of thought of the
possibility of risk, Diplock is suggesting that the defendant should have
thought, since the reasonably prudent person would have. Whilst seeming moralistically and
legally correct, this seems to me to be an affront to our humanity. It is not the business of the law and
certainly not of judges, to attempt to dictate what people should or should not
think – simply wishing to kill a man does not constitute murder or even an
attempt at such – there is no actus reus. In this respect, Diplock is
fundamentally wrong in attempting to impose the views of the reasonably prudent
person on everyone in society. We
are not all reasonably prudent persons, and the fact that we are judged on our
values against such a ‘model citizen’ is repulsive and insulting. However, it was Lord Diplock’s intention
to encompass these incidents within the definition of recklessness, and to that
end, he has done so.
His
second proviso of recklessness deals with the more traditional and acceptable
notion of advertent recklessness.
The defendant is blamed for realising that a risk exists and acting to
effect it nevertheless. This is
clearly a ‘bad’ act, entitled to be dubbed reckless and duly punishable. In this instance the prosecution must
prove that the defendant was aware of the risk and that he went on to
take it. Such and act is more
readily associated with and recognised as conventional recklessness, and seems a
more appropriate description thereof.
However,
difficulties occur here, too. At
times it is not easy to prove that a defendant subsequently went on to do an act
which caused a risk. In Merrick
(1996), for example, the defendant realised that there was a risk of endangering
life in leaving live wires exposed, and took some precautions. Despite this, the cable was exposed for
six minutes, thus rendering the defendant reckless. His conviction was upheld, since it was
thought that the precautions taken occurred after the risk had been created, and
so remedying a risk of his own making was no defence to being reckless as
to its creation.
In its
attempt to include all cases of recklessness, Diplock’s submission was found to
be slightly lacking, and was subsequently amended. In Lawrence (1983) which was in
fact concluded on the same day as Caldwell and by Lord Diplock, the word
“serious” was added to “obvious risk”.
It is clear that Lord Diplock is simply spelling out here what was
implicit in Caldwell, that the risk is usually serious for it to be
obvious. Further, in Reid
(1992), Lord Goff decided that the reference to “some” and “such” risk
should be reversed, since, it was held, the requisite degree of risk did not
differ in cases of advertent and inadvertent recklessness. Following these modifications to
Diplock’s theory, perhaps an appropriate drafting of the current position would
be that:
‘A
person is reckless if he does an act which creates a serious risk and either a)
he recognised that there was some risk of that kind involved, but nevertheless
went on to take it, or b) despite the fact that he was acting in such a manner,
he did not even address his mind to the possibility of there being any such
risk, and the risk was in fact obvious.’
Overall,
Diplock’s words attempt to encompass all possible acts which could be considered
punishable for their recklessness and includes both the confessing risk-taker
and the one who fails to realise an obvious and serious risk.
However,
in including these two cases, Diplock’s judgment also fails to differentiate
between the two, which is surely wrong.
Pre-Caldwell, it was considered to be negligent behaviour when a
defendant failed to give thought to whether there is a risk or not, whereas now
that man is reckless. Surely there
exists a distinction between these two people which should be reflected in the
law, since, as discussed, the defendant may have a very good reason for failing
to give thought to the existence of risk, but needs a convincing argument to
disprove the other scenario. Also,
as outlined in Smith and Hogan, Lord Diplock’s statement draws a distinction
between two morally wrong acts. The
defendant who, “with gross negligence”, fails to give thought is liable, but he
who considers a risk, and, “with gross negligence”, decides there is none, is
not. This also seems an absurd
anomaly in the system, and it can be said that both defendants should be equally
blameworthy, but this is certainly a loophole which can and will be exploited in
the future.
So there
are clearly problems with Caldwell/Lawrence recklessness. As well as the “obvious to whom”
question argued above, and the last scenario, there are other clouds on
Diplock’s horizon.
In order
to prove the necessary mens rea for recklessness, proof of the
defendant’s state of mind must be obtained. Therefore in the case of inadvertence,
“not giving thought” must be equated with a state of mind. This appears to be at least
curious. If the thought does not
enter the defendant’s head at any stage, then how can a “non-thought” contribute
to his actual state of mind? Again,
this incongruity reveals further difficulties in accepting Diplock’s words as
being an appropriate universal rule.
As
mentioned above, the defendant who considers there to be none or a negligible
risk and then continues to act, cannot be held reckless. This “lacuna” in the principle is once
gain a serious inconsistency within the law. The defendant in this case has given
thought, so a state of mind must no longer be proved. Such an occurrence arises in Lamb
(1967). The defendant shot his
friend, but both of them thought that the gun would not fire a bullet since
there was none opposite the barrel.
However, it did, but since Lamb had considered the risk and decided that
there was none, he cannot come under Caldwell/Lawrence recklessness. In Reid (1989), the House of
Lords realised this lacuna but thought it of little importance. The theory only holds, however, if the
risk was thought to be negligible, or preferably, non-existent. In Chief Constable of Avon and
Somerset Constabulary v Shimmern (1986), for example, a martial arts expert
attempted to narrowly miss a shop window with a kick. He did not, and the window smashed, but
the argument that the lacuna applied failed. The defendant had certainly minimised
the risk, but knew there was some risk, and so the case is covered by Lord
Diplock’s definition. Even if
negligible, the risk must be one that the reasonably prudent person might have
taken. In order to overcome this
peculiarity within the rule, then, could not an extra section be added to the
definition? If a proviso was
included to the effect that if the defendant perceived no risk or a negligible
risk, then he should be liable if the reasonably prudent person would
have perceived it to be an obvious and serious risk.
The
Caldwell/Lawrence test also does not apply to all cases. Lord Roskill once directed that it apply
to all “reckless” crimes, “unless Parliament had otherwise ordained” –
Seymour (1983). However,
since then, the definition has been more restricted. Savage and Parmenter (1992)
concluded that Caldwell recklessness cannot apply to crimes requiring
“malice”. Section 20 of the
Offences Against the Person Act 1861 indicates that the foresight of the risk
harm is required and so, the House of Lords ruled, Caldwell-style recklessness
could not apply. This is clear,
since a malicious act means one must have known of a risk and then
continued to take it, rendering Lord Diplock’s inadvertence useless in this
case. Similarly, Adomako
(1995) established that it does not apply to manslaughter, and it does now apply
to rape or offences against the person at common law. In fact, Caldwell recklessness only
applies to reckless driving and death by reckless driving, criminal damage, and
other statutory offences where “reckless” is used.
It is
clear, then, that if Caldwell recklessness cannot be applied to all crimes,
another definition must be used.
This ‘version’ is that of Cunningham recklessness. In Cunningham (1957), the
defendant tore a gas meter from the wall and was charged with maliciously
administering a noxious thing so as to endanger life when the gas seeped into
the neighbouring house. The Court
of Appeal ruled here that the defendant was reckless if he:
“foresaw
that… harm might be done, and yet goes on to take the risk of it”
This essentially is Lord Diplock’s
first provision in his Caldwell ruling, and, as discussed, the more traditional
view of recklessness. That also
encompasses subjectivity, i.e. that the defendant himself must have realised the
risk. This, it is submitted, is a
fairer and better test than the Caldwell/Lawrence provision, for reasons given
above.
Cunningham recklessness, then, is still used today for
crimes not covered by Lord Denning’s ruling, i.e. those were the word
“maliciously” is used. Take W. v
Dalbey (1983). The defendant
was charged with malicious wounding, but his conviction was quashed because the
Magistrates had based their decision on the Caldwell definition of recklessness,
whereas the Cunningham test should have been applied. This test must also be used for assault,
Section 47 offences, as in Savage and Parmeneter (1991), above, and rape
cases.
It
appears that the definition of reckless behaviour in Cunningham is sufficient to
apply to all cases, and the fact that the defendant must know of a risk to take
it seems logical. This is not to
deny that Caldwell recklessness is not morally right – one who should have known
of a risk but failed to think thereof has also erred somewhat. But, I believe that this constitutes
negligence as opposed to recklessness, as was the case before Caldwell,
and so Smith and Hogan’s submission that the correct solution is to revert to
the Cunningham test, which was “trouble free” is, I believe, right.
This
point raises some important and difficult issues. I have touched upon the fact that there
is a fine border between negligence and recklessness, as now defined by
Caldwell. Indeed, the distinctions
between all degrees of blameworthiness, from direct intent, through indirect or
oblique intent, advertent or Cunningham recklessness, inadvertent or Caldwell
recklessness to negligence, are somewhat blurred.
Negligence can be defined as a falling below the standard
of the reasonably prudent person, either by doing something he would not do, or
not doing something he would do. It
is, therefore, another objective test.
Before Caldwell, negligence would be proved by the inadvertent taking of
an unjustifiable risk. Of course,
this now constitutes inadvertent recklessness. We must ask, therefore, what is left to
be truly defined as negligence?
Indeed, very few cases of gross negligence now occur which do not amount
to Caldwell recklessness.
Lamb (1967) is one such example, however where the defendant had
considered a risk and believed there was none. This classic lacuna case highlights
perhaps the situation which must arise for negligence to now occur.
The
decision of Lord Diplock to move inadvertence ‘up the scale’ of blameworthiness,
thus rendering it more punishable, has created a substantial overlap between
negligence and recklessness. In
Adomako (1995) an anaesthetist failed to realise that a tube supplying
his patient’s oxygen had become disconnected. He was tried for manslaughter by gross
negligence, which requires proof of:
(i)
a duty owed by the accused to the deceased
(ii)
breach of that duty causing death
(iii)
gross negligence (to be decided by the jury)
However, could it not be said that
the defendant’s failure to think of the risk of the tube being disconnected
rendered him not merely negligent, but reckless? On the other hand, the risk may not have
been thought of by the reasonably prudent person, and so his mere failure to
ensure the tube was sound would then prove his negligence.
It is difficulties such as these which provide confusion and conflict
within the law, and the distinction between negligence and recklessness, once
fairly clear, has now become obscured by Lord Diplock’s ruling. If any division exists between the two,
then the line is certainly a fine one, the dissimilarity very subtle.
At the other end of the recklessness scale, i.e. with regard to
Cunningham recklessness, there is a similarly vague border between intention and
recklessness, and this also can be examined. Firstly, we must ascertain what the law
means by intent. This clearly
relates to the mens rea of a crime, with the accused having to intend to
do something before he can be blamed for doing it. It is clear that, if the defendant
desires a result of his own act and believes that his act will bring about that
result, then he intends directly to effect it. This is known as direct intent. If, as in Steane (1947), the
accused did not desire the result, then he cannot be liable for it.
However, such apparent clarity does not extend to indirect or oblique
intent. Here, a defendant can be
held to act intentionally if he foresaw or anticipated the consequences of his
act, but continued regardless. The
courts have had some difficulty in defining this notion, beginning with
Moloney (1985). Here, Lord
Bridge said that a jury may infer intention from the defendant’s foresight of
consequences, and further that if the consequences were a “natural” extension of
his act, then he acted with intent.
This led to controversy over the ambiguity of “natural consequences”, and
so in Hancock (1986), the Lords ruled that the guidelines in
Moloney be refined to include probability of consequences occurring. It was decided that the greater the
probability of the consequence, the more likely that it was foreseen, and
therefore intended. Finally, in
Woollin (1998), the law was again refined so that a jury must now
find that a defendant intended an act if he foresaw the consequences as
being virtually certain and then continued to act regardless.
This, it is submitted by Smith and Hogan, draws “a clear line between
intention and recklessness”.
However, is it not the case that if a result is virtually certain
to occur, then there is only a risk of it occurring? This state of affairs is surely
analogous to Cunningham recklessness – the defendant recognised a risk of
something occurring and yet acted anyway.
It is admitted, however, that there is a difference between knowing an
event is virtually certain and knowing that an obvious and serious risk may
ensue, and this distinction is the only one, it seems, which separates intention
and recklessness.
The law does not, however, distinguish two types of intention as
separately punishable notions – intent is intent, whether direct or otherwise,
and so the division between recklessness and direct intent is the same as that
between it and oblique intent – a situation which seems seriously flawed,
considering the subtlety with which the latter two are distinguished. Therefore a man who intentionally throws
a stone though a window causing criminal damage is only marginally more
blameworthy than the small boy who misses a target on a wall with his stone and
smashes the window. This is clearly
flawed in some way and perhaps needs more consideration.
Lord Diplock’s statement, then, has been the source of widespread praise
and gratitude, in its easing of recklessness laws, but also, clearly, great
controversy and confusion. He has
apparently complicated the idea of recklessness by trying to define and simplify
it. It is not disputed that
Caldwell should have been punished, but the apparent inability to equate his
behaviour with a current crime (i.e. negligence) is beyond belief. In practically eliminating the crime of
negligence, Diplock has caused repercussion throughout the law which were
frankly unwarranted.
Perhaps, in conclusion, the law itself can be said to have been reckless,
in failing to give thought to whether there was a risk of confusion and
problems. Whether this recklessness
is best described by Caldwell or Cunningham is, of course, a matter for the
jury.
© Phillip John Morris
Criminal Law – Week 7 – Theft 1 Problem
Alan, who is Barbara's secretary, was given £20 by Barbara in order to buy her a rail ticket. Alan used the £20 to back a horse, and the horse lost. The next day he took £10 out of the petty cash tin in the office and used it to back another horse. This time the horse won and he received £100. He then restored the £10 to the petty cash tin, and used a further £20 to buy Barbara's ticket. He kept the remaining £70.
Discuss.
In this scenario we are presented with two “events” which need to be examined with regard to their legality – A is given £20 by B for her rail ticket and spends it on a bet and subsequently his second act involves the taking of £10 for the same reason from a petty cash tin. A’s acts can fall under the law of theft, and so we must ascertain whether they amount to two separate offences under it. The offence of theft is dealt with in the Theft Acts 1968 and 1978, and its composite actus reus and mens rea elements need to be examined individually, and in context of the statutes.
Section 1 (1) of the Theft Act 1968 (hereinafter referred to as “the Act”), states:
“A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it […]”
This statement introduces many complex elements to an essentially simple offence and ss. 2 to 6 of the Act explain and define such aspects. The actus reus is set out as being i) the appropriation of ii) property iii) belonging to another – and all three aspects here must be proved to constitute the actus reus of theft. The definition also embraces the mens rea – to i) dishonestly appropriate, ii) with the intention to permanently deprive, and likewise both must be present to convict of theft. It is essential therefore that, in considering the present case, one uses this approach to determine whether A has committed a theft in each incident.
Firstly the actions in relation to B’s £20 shall be considered. With regard to the actus reus, we should first examine appropriation. Section 3 (1) of the Act states:
“Any assumption by a person of the rights of an owner amounts to an appropriation.”
This subsection has, however, led to some debate over which rights, and to what degree, were necessarily assumed in order to amount to an appropriation. In Morris (1984), the House of Lords decided that it is only necessary to prove that at least one right of an owner is assumed, where D switched labels on products in a supermarket. This greatly expanded the boundaries of theft, incorporating many cases which may not have previously been theft, and was confirmed in Gomez (1993), the resent leading case. These so-called rights of an owner include possession of, and control over, property, and so it seems clear that A assumes such rights. He is in possession o B’s money and controls it. This appears to be an obvious assumption of an owner’s rights, and so it can be said that A appropriates B’s £20.
However, a further area of contention has developed over this subsection. It does not, it appears, account for a situation where the owner’s consent is given to the alleged assumption of right or rights. The House of Lords ruled in Lawrence (1972) that consent was not a defence to an assumption of owners’ rights. D was a taxi driver who was shown a destination on paper by an Italian student P, who spoke little English. D stated that P’s offer of £1 for the fare would not be enough, and then proceeded to extract a further £6 from P’s wallet, seemingly with P’s permission (since he knew no better). Although the court held that consent was not in fact given, it would be irrelevant in any case – D still appropriated P’s money. This was, however, contradicted in Morris, where Lord Roskill said, albeit obiter, that some “adverse interference with or usurpation of” an owner’s rights was needed – suggesting that a consented act does not amount to either. This inconsistency in the law is resolved in Gomez, which decided that Roskill’s dictum was wrong, and that the earlier decision of Lawrence represented the law and so consent as to acts is irrelevant.
The point is of particular importance in the present case, since B clearly consents to A’s possession of the money, albeit not to his eventual use of it. B’s consent to his control or possession of her £20 is, however, irrelevant. As an aside it is probably better to consider consent when deciding on dishonesty rather than appropriation, since it may affect the jury’s interpretation of D’s act being dishonest or otherwise.
We can now confront the issue of property – the second requirement of the actus reus – can B’s £20 be regarded as property to be stolen? Section 4 (1) of the Act declares:
“ ‘Property’ includes money and all other property, real or personal, including things in action and other intangible property.”
It is clear, then, that B’s money falls quite squarely under the definition, and so it is capable of being stolen. This applies equally, of course, to the £10 petty cash in the second offence (see below), and as such, nothing further need be said on the point.
There remains, then, the requirement that the property belong to another. Section 5 (1) of the Act outlines:
“Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest).”
As far as B’s money is concerned, it is submitted that before she handed it over the £20 was her own money, and that we assume B owns it outright (she may have stolen it herself, however possession and control would exist, and A would still be able to steal it from her). When B hands over the money, however, A assumes ownership, albeit temporarily, since he has been, essentially, gifted the money conditionally. Section 5 (1) does not, then, apply at this point. However, a further subsection exists which adds weight to the argument of the money belonging to B. Section 5 (3) provides that:
“When a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to that other.”
This appears to appertain to the current case, since A receives the money for a particular purpose, but we must establish whether there is an obligation on A to act as B has intended. The obligation must be a legal one. This effectively means that a written transaction has its legality decided upon by the judge (as in Clowes (1994)), and where at least a part of the exchange is made orally, the jury must decide on the facts as to whether an obligation exists (Dubar (1995)). Since we can assume that B told A to buy her a rail ticket, it follows that the jury shall decide whether an obligation exists. Smith and Hogan (Criminal Law, 9th ed.) contend that, based on very similar facts to the present, “the normal inference would be that (A) is under an obligation”. This is the most likely outcome, since A is clearly given the money conditionally, with a task of utilising it for B’s gain. Case law would support this argument, as in Davidge v Bunnett (1984), where D spent his money given to him by his flatmates to pay off household bills on Christmas gifts. It was held that D was under an obligation to use the money in a particular way, and this situation is mirrored presently.
In so finding that A was under an obligation to B, and so, under s. 5(3), that B is in fact the owner in any event, A’s assumption of owner’s rights is strengthened. Having established B’s continued ownership of the £20, A’s actions appear convincingly to be those of such assumption, and so appropriation is again underlined. We have thus far established, then, that with regard to A’s first offence all elements of the actus reus are satisfied.
As to mens rea, it must be said that A’s motive is irrelevant (s.1(2) of the Act) – personal gain or otherwise is immaterial – it is no defence to claim to steal for no personal advancement. Having said that, the mens rea of theft does consist of two elements namely i) dishonesty and ii) an intention to permanently deprive.
Section 2(1) of the Act provides:
“A person’s appropriation… is not to be regarded as dishonest –
a) if he appropriated… in the belief that he has in law the right to deprive the other of it… or
b) if he appropriates… in the belief that he would have the other’s consent… or
c) … if he appropriates… in the belief that the person to whom the property belongs cannot be discovered…”
This subsection does not provide a state of mind which must be regarded as dishonest. In fact, if D’s act does not fall under any of the categories, the jury decided on whether it is dishonest. In Feely (1973), where D, a shop manager, took £30 from the shop till (in similar circumstances, therefore, to A’s second act), the Court of Appeal ruled that it was wrong for the judge to decide as to dishonesty, and that the standards of the ordinary decent person should be applied by the jury. This idea was further developed in Ghosh (1982) where the same court set out a two-stage test for dishonesty:
1) The jury must decide if D’s behaviour was dishonest by the standards of the ordinary reasonable person. If not, D is not guilty.
2) If so, D is only guilty of dishonesty if he realised that people would regard his behaviour as such.
It is a subjective test, but also prevents D from claiming he is honest if the ordinary person would not, if he knew so. It is by this test, then, that we must assess A’s behaviour. It is probable that most juries would regard such actions as being dishonest – he deliberately misused money vested in him in good faith – and A is also very likely to know that most people would find such behaviour dishonest. He would therefore be likely to be held to be dishonest.
However, A’s later fulfilment of the money’s purpose, i.e. to buy a rail ticket, presents moral problems. Clearly, at the moment, the above test will apply, regardless of subsequent restorative acts. Smith and Hogan, however, argue that a fourth category of ‘honest’ behaviour could be added to the effect where D “intends to replace the property with an equivalent and believes that no detriment whatever will be caused to the owner by the appropriation.” This may include A, although his belief that the money will be replaced is far from certain. Of course, this is all speculative in any case, since Smith’s words do not, as of yet, represent the law.
Having established A’s dishonesty, or having left the same to the jury, we may now approach the requirement of intention to permanently deprive. Section 6(1) of the Act states:
“A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights.”
It is arguable whether A intended permanently to deprive B of the money. In fact, his placing money on a horse suggests the opposite. A certainly treats the money as his own, and indeed disposes of it, and so he could feasibly fall under s.6(1). Such a case exists in Marshall (1998) where Ds were re-selling London Underground tickets, which tickets remained the property of the Underground. Their claims that they did not intend permanently to deprive the company were rejected, holding in the Court of Appeal that s.6(1) applied. As in Fernandez (1996) D is also liable under this head if he knows he is risking the property’s loss, as is clearly the case with A. A can therefore be said to fall under s.6(1). As a further point, in Velumyl (1989), D was convicted of theft from a safe after he intended to repay the sum in question. The Court of Appeal dismissed his appeal on the grounds that intention to permanently derive of the actual currency taken existed – in other words the exact banknotes or coins must be returned, and an equivalent sum will not do.
A’s second act is very similar to his first, and almost all aspects discussed above apply likewise. A’s appropriation is clear – he takes £10 from the tin, and assumes full ownership of it. It is clearly property, and belongs to someone under s.5(1), the owner being the company. No handing over of money occurred, and no conditions were imposed upon its use, and so the actus reus is proved. A’s mens rea is even easier to explain – it is identical to A’s intentions in the first act. The Velumyl arguments also apply, since A is unlikely to return the exact same banknote, and so it is no defence to return different ones.
We have thoroughly examined the concepts of the law of theft in this analysis, and they have been shown to be sophisticated and, at times, complicated and difficult structures. However, this scenario is a fairly straightforward one, in which the facts collate neatly with the provisions of the statute. There exist many cases where a technicality or three places a large barrier before the judiciary in carrying out its task. As happens all too often, case law has over-complicated what could essentially be a simple statute. Erroneous decisions, doubtful dicta and inaccurate indictments have largely blurred the draftsman’s hitherto clear words, and all in an attempt not to let the thief get away with murder. A in our story has made a profit, essentially, by stealing his wager, and, luckily for him, picking the winner. He was a thief, however, and his somewhat petty sum stolen nevertheless illustrates the law accurately, and we would accordingly wish to see him punished, if only because we backed a faller at the last.
©
Phillip John Morris