After R v Clowes (No 2): An Act of Theft Empowered—A Jury Impoverished?
| Author | Mitchell C Davies |
| DOI | 10.1177/002201839706100107 |
| Published date | 01 February 1997 |
| Date | 01 February 1997 |
| Subject Matter | Article |
AFTER
Rv
CLOWES
(No
2):
AN
ACT
OF
THEFT
EMPOWERED-A
lUR
Y
IMPOVERISHED?
Mitchell CDavies"
The key elements characterising the current definition of theft are a
testimony to the success of the Criminal Law Revision Committee's
8th Report «1966) Theft Related Offences, Cmnd 2977) in producing a
blueprint for a scheme
of
theft legislation capable
of
comprehension by
the lay panel entrusted thereunder with the duty
of
determining liability.
According to s I
(l)
of the resultant Theft Act 1968, the offence
of
theft is
made out if the jury is satisfied that the accused dishonestly appropriated
property belonging to another intending to make permanent deprivation
thereof. The ingredients of the offence are, therefore, both simply
expressed and avowedly for the jury's determination. Atroubling
development explored in this article is the increasing tendency of the
judiciary, illustrated most graphically by the judgment of Phillips Jin Rv
Clowes
(No
2)
[1994]
2 All ER 316 effectively to remove the essential
elements of the offence from the jury's consideration by ascribing legal
character to matters of actus reus in terms which colour the whole
of
the
offence and amount to little other than thinly veiled directions to convict.
The improvements effected by s I
(l)
of
the 1968 Act are at once
apparent when a comparison is drawn with its precursor, sI
of
the
Larceny Act 1916, the abstruse language of which had, in part, proved to
be its undoing. The former provision charged the jury with the unenviable
task
of
determining, inter alia, whether the accused had, 'without the
consent of the owner fraudulently and without claim
of
right made in
good faith, take[n] and carrie[d] away anything capable
of
being stolen
with intent, at the time
of
such taking, permanently to deprive the owner
thereof
..
.'.
Afurther principal objective of the 1968 legislation was to broaden the
law of theft which, under the Larceny Acts, had shown itself at times to
be woefully limited: Moynes v Coopper
[1956]
IAll ER 450. This (together
with the statutory reversal of Moynes v Coopper) was achieved primarily
by the introduction of the new actus reus requirements of 'appropriation'
and 'property belonging to another'. These revisions, however, had their
own price: the diverse nature of the property protected by the new
legislation, coupled with the propinquity to the civil law raised by the
legislation's inquiry as to ownership, of itself gives rise to unavoidable
technicality. The most, therefore, that can be aspired towards is that by
dint of skilled drafting the complexity of theft legislation will be limited to
•Director of Legal Studies, Cayman Islands Law School, an affiliated institution of the
University of Liverpool.
99
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