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Article Excerpt
[This article argues that the Theft Act 1968 (UK) c 60 and subsequent legislative developments" in Australia have overlooked the principle of preventing public violence that was historically a justification for the common law offence of larceny. The article outlines the English Criminal Law Revision Committee's decision to amalgamate previously separate offences into one overarching theft offence in the Theft Act 1968 (UK) c 60. It then describes' the historical development of the common law offence of larceny, and its basis in the protection of the possessory rights of victims. The author argues that the restriction of the term 'property belonging to another' to possession in the context of larceny provides a strong and principled boundary to the offence. The article then outlines four particular issues arising from the statutory expansion of the definition of theft, and concludes that retaining the distinction between offences such as' theft and fraudulent conversion would be preferable to a single statutory offence.]
CONTENTS I Introduction II From Larceny to Theft A The Common Law Approach B The Approach of the Theft Act C The CLRC's Reasons for Replacing Larceny with Theft III Manifest Criminality and Possessorial Immunity A Unnerving Acts, Manifest Criminality and Possessorial Immunity B The Metamorphosis of Larceny from Manifest Criminality to Subjective Criminality C The Introduction of Crimes Based on Breach of Trust IV Does Modern Larceny Retain Its Original Public Order Character? V Are There Problems with the Expansion of Stealing in the Theft Act? A Extending 'Belonging to' to All Property Interests B Extending 'Belonging to' to Include Non-Proprietary Relationships to Property C Relativity of Title D The Situation of Trusts and Trustees VI Conclusion
I INTRODUCTION
In the Theft Act 1968 (UK) c 60 ('Theft Act'), England and Wales replaced the common law offence of larceny (1) and a large number of separate statutory extensions of larceny with one compendious statutory offence of theft. To ensure that the new offence captured those statutory extensions, substantial changes were made to the definition of 'stealing' as used in larceny. (2) One such change was to the requirement that the stolen property be 'property belonging to another', that is, property in the possession of a person other than the accused immediately prior to the stealing.
Common law larceny protects the possessory rights of victims. Consequently, its application is limited to situations where the accused unlawfully takes property out of the possession of another. Circumstances where the accused unlawfully appropriates property of which they are already in possession fall outside the offence of larceny but are prohibited by a range of separate statutory enactments. These statutory additions either create offences in their own right or deem certain situations to fall within larceny. The Theft Act reform aimed to do away with this range of additional enactments and replace it with a general theft offence. (3) In order to achieve this economy, the Theft Act offence dispenses with possession as the basis of the offence by extending the definition of 'belonging to another' to also include any other proprietary rights of the victim. (4)
In Australia, New South Wales is the only jurisdiction that maintains a possession-only offence. (5) Queensland, (6) Western Australia (7) and Tasmania (8) have an offence of stealing, which includes fraudulent conversion, but they maintain a conceptual distinction between a taking (9) and a conversion (10) within the wording of their stealing offence. The Western Australian offence extends further than the Queensland and Tasmanian offences by including intangible property within the scope of the stealing offence. The remaining Australian jurisdictions--the Commonwealth, Victoria, the Australian Capital Territory, the Northern Territory and South Australia--have broadly framed theft offences based on the English Theft Act model that extend to all forms of non-consensual appropriation of both tangible and intangible property. (11)
This article examines the different approaches to 'property belonging to another' in larceny and theft. The article suggests that, despite the limitations of larceny, the restriction of the term 'property belonging to another' to circumstances where possession is unlawfully taken from the victim provides a strong and principled boundary to the offence. Although larceny is an offence based on property rights in their modern form, the original rationale of larceny was to protect against public violence. This rationale still underpins the requirement in larceny that there be an unlawful taking of possession. The article then suggests that there are good reasons, in principle, for maintaining the possession requirement in the modern theft offence. It is also suggested that there are benefits in maintaining separate, but simplified, offences that deal with situations where property is already in the possession of the accused. Such separation, it is argued, allows the offences to more accurately reflect the nature of the type of appropriation and the moral culpability involved in the different types of appropriation.
It is assumed in this article that theft is, in practice, restricted to tangible property. Elsewhere, I have argued that any extension of theft to include intangible property is less significant a change than it would seem, as there is doubt as to whether many forms of intangible property can be stolen and the remedial nature of some forms of intangible property rights have the effect of creating significant uncertainty about the scope of the offence. (12) Consequently, I argue that it is in fact better to restrict theft to tangible forms of property, with specialist offences for those categories of intangible property which require the protection of the criminal law.
Of course, it needs to be acknowledged that the Commonwealth, Victoria, ACT, NT and South Australia currently extend their theft offences to include intangible forms of property. However, even if arguments concerning the inaptness of the use of the theft offence to protect intangible property are unlikely to lead to reform in jurisdictions which have adopted the Theft Act model, it remains the case that four jurisdictions have, to date, declined to adopt that model, (13) and three of these jurisdictions restrict theft to tangible property. (14) Thus, it is important to determine whether there are grounds beyond historical accident that might justify retaining the requirement that stealing involve the taking of property from the possession of another.
II FROM LARCENY TO THEFT
A The Common Law Approach
The common law offence of larceny requires a number of highly articulated elements to be satisfied in order to obtain a conviction. First, the offence only applies to tangible forms of moveable property. (15) Secondly, that property must belong to another--that is, be in the possession of another person, (16) although this possession need not be lawful. (17) Thirdly, the accused must, at least temporarily, take the property out of the other person's possession. (18) Fourthly, this taking must occur without the consent of the other person. (19) Fifthly, the thief must intend to permanently deprive the victim of the possession of the property. (20) Sixthly, the thief must act in a way that is fraudulent. (21)
For many years, larceny was the only general property offence, and legislative extension of the criminal law in this area drew on the conceptualisation of property rights and the classifications of their breach that the common law courts had developed in case law on larceny. From the 1700s onwards, a collection of statutory offences extended liability to areas which otherwise fell outside the requirement that the property taken must be property belonging to another. These statutory offences may be classified into three groups. The first set of offences ('fraudulent conversion offences') deal with situations where property is misappropriated by persons who initially gain possession of the property with the consent of the victim, pursuant to undertakings to return the property or deal with it in accordance with the victim's wishes--for example, misappropriations by bailees and agents. (22) A second set of offences ('embezzlement offences') deal with situations where an employee or other trusted agent received property, ostensibly on behalf of the victim, but appropriates the property for themselves. (23) The third major set of legislative extensions to larceny are the fraud offences. (24) These offences deal with situations where consent to the passing of possession is induced by false representations by the accused. (25) In addition to general fraud offences, specific offences were also created to cover fraudulent trustees, factors and agents. (26)
B The Approach of the Theft Act
When the English Criminal Law Revision Committee ('CLRC') recommended wholesale reform of larceny (and its statutory extensions and additions) in the form that became the Theft Act, it attempted as much as possible to reduce the number of offences to two--a theft offence and a fraud offence--with both being based on the protection of property interests. In so doing, they drafted an offence of theft which was broad enough to include the statutory extensions to larcenable property as well as fraudulent conversion, embezzlement and fraudulent trustee offences. The resulting offence in s 1(1) of the Theft Act is worded in a very general manner:
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.
Subsequent sections further define many of these terms, with the effect of often broadening them beyond their common law meanings. For example, 'property' is expanded beyond tangible and moveable property to cover most forms of property, including choses in action, other than land. (27) The concept of 'belonging to another' is extended to include exercising any form of control over a property interest. (28) Much of the litigation on the Theft Act has centred on attempts to limit the offence by finding restrictive boundaries in the meaning of 'appropriates', 'intention to permanently deprive' and 'dishonestly'. Nevertheless, English courts have consistently interpreted these elements broadly.
Attempts to restrict appropriation to an appropriation without consent, (29) an appropriation of all or substantially all of the property rights of the victim, (30) or an act that 'usurps' the rights of the victim (31) have all been rejected by the House of Lords. (32) Following the decision in R v Hinks, (33) appropriation--for the purposes of theft--is 'a neutral word comprehending "any assumption by a person of the rights of an owner"'. (34) Specifically, appropriation includes transfers of property given with full consent. The actus reus of theft may therefore be satisfied even where a person voluntarily passes property rights to another.
The requirement that there be an 'intention to permanently deprive' has also proven to be less restrictive than it might appear. The purpose of this element in larceny is to exclude from the offence circumstances that merely constitute a wrongful borrowing of property, which at most leads to tortious liability. This is achieved in larceny by interpreting the element to require that the perpetrator 'take the entire dominion over the property', (35) with limited exceptions to cover situations where property is returned with all of its value exhausted, (36) the nature of the property returned has changed, (37) or where the taker imposes conditions that must be satisfied before the property will be returned. (38) Despite the restatement of the common law element in the theft offence and the lack of any indication from the CLRC that a change to the definition of permanent deprivation in larceny was intended, a partial definition of what the term meant was inserted by Parliament in s 6 of the Theft Act. (39)
The wording of the section has been criticised as unclear, and there have been differing judicial approaches to its meaning. For some time, attempts were made to read the section as if it did nothing more than restate the three common law exceptions to the 'taking of dominion' requirement. (40) However, the wording of the section appears to be broader, and this narrow reading has been rejected. The current English interpretation appears to be that an intention to permanently deprive may exist if it is proven that there is an intention of the accused to treat the thing as their own to dispose of, regardless of another person's rights in the property. (41) Exactly how minimal this requirement might be is unexplored to date, but this interpretation does suggest that all that may be required is a degree of interference with property rights irrespective of another's rights, rather than a wholesale rejection of the victim's rights. (42)
The extension of theft to include the appropriation of forms of intangible property also undermines the requirement that an appropriation be intended to be permanent, as intangible forms of property may not be capable of being borrowed. In R v Preddy, the House of Lords held that choses in action represented by credit in bank accounts never pass from one person to another. (43) Instead, in any such transfer of intangible property, the chose in action held by the transferor is destroyed. An identical but separate and new chose in action is then created in favour of the transferee. Even if an accused intends in a general sense merely to 'borrow' the money (for example, through a temporary transfer of funds from one bank account to another with the intention to return it the next day), the intention to transfer the debt results in its destruction, and that intention can thus be construed as an intention to permanently deprive through destruction of the victim's property. It may be possible that the reasoning of the House of Lords applies generally to all choses in action (44) which, for theft, may have the effect of treating all forms of intangible property as fungible. (45) At the very least, the decision means that any misuse of electronic funds amounts to a permanent destruction of property rights.
The breadth of the elements of theft means that it is very easy for a prosecution to establish appropriation and an intention to permanently deprive. Thus, in practical terms, a determination of whether a person's actions constitute an act of theft depends largely on whether the person is seen as dishonest. (46) Dishonesty has thus become the key inculpating element of theft. Indeed, the situation is so extreme that the Law Commission of England and Wales has noted: 'When a person selects a newspaper to buy at a newsagent's, he or she has committed all the elements of theft save for dishonesty.' (47) In this sense, the Commission commented, dishonesty 'does all the work'. (48)
C The CLRC's Reasons for Replacing Larceny with Theft
In hindsight, much of the difficulty in providing clear boundaries for the scope of theft appears to have been caused by the eagerness of the CLRC to collapse a range of offences into a single, overarching theft offence. This compression of offences--particularly the collapse of embezzlement and fraudulent conversion into theft--resulted in the need to expand the meaning of 'belonging to another', and consequently required the use of the broad notion of appropriation rather than a taking. Embezzlement and fraudulent conversion offences involve situations where the tangible property is already in the possession of the accused and thus a taking of possession cannot be an element of the offence. Fraudulent conversion offences are further extended to include money and other valuable securities. The CLRC declined to consider the adequacy of maintaining an embezzlement offence because they felt that 'the distinction between embezzlement and larceny ... is clearly one of the technicalities which ought to be abolished.' (49) They also noted that fraudulent conversion was wide enough to cover the offences of larceny by a bailee or part owner and embezzlement. (50) On the basis of the CLRC's reasons, it would have been possible to restate the law as an offence of larceny and an expanded offence of fraudulent conversion. However, the CLRC declined to do this because they considered that:
The important element of them all is undoubtedly the dishonest appropriation of another person's property--the treating of 'tuum' as 'meum'; and we think it not only logical, but right in principle, to make this the central element of the offence. In doing so the law would concentrate on what the accused dishonestly achieved or attempted to achieve and not on the means--taking or otherwise--which he used in order to do so. (51)
The CLRC's approach was to expand fraudulent conversion to such an extent that it incorporated larceny, thereby creating a single offence of theft. As noted above, this required a very broad definition of 'property belonging to another'.
In this article, an attempt is made to highlight the uncertainty of the current definition of 'belonging to another' in the Theft Act, and to consider whether the restriction of 'taking of possession' in larceny has any underlying practical or theoretical benefits. In this context, the article argues that a return to a form of theft that is restricted to a 'taking of possession', with separate offences for fraudulent conversion, embezzlement and fraud, could provide a far greater degree of certainty in this area of law without any practical drawbacks.
III MANIFEST CRIMINALITY AND POSSESSORIAL IMMUNITY
In order to understand the reasons for the 'taking of possession' requirement in larceny, and the impetus for the change towards the broader notion of 'appropriation' in the Theft Act, a historical perspective is needed. In their earliest forms, the offences of larceny, robbery (52) and burglary (53) were primarily aimed at protecting public safety. (54) This focus has long been lost as an aspect of the legal definition of these offences, but it clearly remains part of the public's understanding of the wrongfulness of robbery and burglary. The history of larceny also reveals that notions of public safety are fundamental to the definition of the offence, yet were overlooked in the drafting of the Theft Act.
A Unnerving Acts, Manifest Criminality and Possessorial Immunity
In an influential study of the history of larceny, George Fletcher has argued that larceny in its original English form prohibited two forms of socially 'unnerving' acts: the taking of property by stealth and the taking of property out of the physical possession of another. (55) In both instances, the aim was not to protect an individual owner's property rights, but instead to avoid the possibility of violence that could arise from such activities.
As Michael Tigar has pointed out, ownership in pre-mercantilist societies was not a concept that was of significant concern to the majority of the population. Instead,...
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