Dishonest Appropriation after Gomez and Hinks
| Author | Simon Parsons |
| DOI | 10.1350/jcla.68.6.520.54139 |
| Published date | 01 November 2004 |
| Date | 01 November 2004 |
| Subject Matter | Article |
Dishonest Appropriation after
Gomez and Hinks
Simon Parsons*
Abstract This article examines the meaning of dishonest appropriation in
the offence of theft after the House of Lords’ decisions in Gomez and Hinks.
It maintains that whilst Gomez broke the distinction in the Theft Act 1968
between the simple thief and the deceitful rogue, it did at least maintain
the underlying rationale for theft which is the protection of property
rights. In contrast Hinks does not comply with this rationale as it allows for
the possibility of an appropriation when there was a valid gift of property
so that the actus reus of theft no longer requires that there be the composite
whole of a ‘dishonest appropriation’. Thus the emphasis in the offence of
theft is now on dishonesty and this may be in violation of Articles 5(1) and
7(1) of the European Convention on Human Rights.
The offence of theft1was enacted in response to the view of the Criminal
Law Revision Committee2that theft was the appropriate sanction for the
simple thief whilst the deceitful rogue who obtained property by a false
deception or misrepresentation should be liable for the more serious
offence of obtaining property by deception.3This distinction was finally
broken by the decision of the House of Lords in DPP vGomez4where the
majority construed s. 3(1) of Theft Act 19685so that ‘appropriation’ in
the offence of theft was extended to include any assumption of the
owner’s rights and not limited to adverse assumptions.6The result of this
decision is that even if the owner of the property consents to its taking
there is still an appropriation for purpose of the offence of theft and it is
irrelevant that the defendant’s title to the property is void or voidable.
Thus the legal effect of Gomez was to introduce a subjective basis for
appropriation because the manifest criminality required by an adverse
assumption of rights7was not required for there to be appropriation.
There was a shift of emphasis to the defendant’s state of mind when he
appropriated the property although the appropriation would have an
*Senior Lecturer, Southampton Institute.
1 Theft Act 1968, s. 1 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; and “thief” and “steal” shall be construed accordingly.’
2 Eighth Report, Theft and Related Offences, Cmnd 2977 (1966) at para. 38.
3 Theft Act 1968, s. 15(1) states: ‘A person who by any deception dishonestly obtains
property belonging to another, with the intention of permanently depriving the
other of it, shall on conviction on indictment be liable to imprisonment for a term
not exceeding ten years.’ In contrast a person guilty of theft shall on conviction on
indictment be liable to imprisonment for a term not exceeding seven years (Theft
Act 1968, s. 7).
4Sub nom. R v Gomez [1993] AC 442, [1993] 1 All ER 1, (1993) 96 Cr App R 359, HL.
5 Theft Act 1968, s. 3(1) states: ‘Any assumption by a person of the rights 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.’
6 Applying Lawrence v Metropolitan Police Commissioner [1972] AC 626, HL and
overruling R v Morris [1984] AC 320, HL.
7 As in Morris where the defendant attached a price label to goods in a supermarket
which showed a price lower than that which was properly payable for the goods.
520
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