German Cures for English Ailments? Appropriation versus Taking Away—Significance and Consequences of Conceptual Differences between the English and the German Law of Theft
| Author | Nils Weinrich |
| DOI | 10.1350/jcla.2005.69.5.427 |
| Published date | 01 October 2005 |
| Date | 01 October 2005 |
| Subject Matter | Article |
German Cures for English
Ailments? Appropriation versus
Taking Away—Significance and
Consequences of Conceptual
Differences between the English
and the German Law of Theft
Nils Weinrich*
Abstract The current law of theft continues to rely on the concept of
‘appropriation’ under the Theft Act 1968. The broadness of this concept
has led to serious problems in its application by the courts. Amongst these
are the problems of ‘appropriation with consent’ and ‘appropriation with-
out taking possession’ which have manifested themselves in several
counter-intuitive decisions by the courts such as Gomez, Hinks and Pitham
and Hehl. As a result these decisions have given rise to strong criticism by
academics and practitioners alike. The law of theft, therefore, is without
doubt in strong need of reform. After examining these key problems this
article conceptually analyses the German approach by way of comparative
juxtaposition with the English approach. Far from suggesting any adapta-
tion of continental solutions, the author aims to provide extra material for
consideration for a future reform of the law by introducing a systematic
construction of the offences of theft and fraud from a foreign
jurisdiction.
The crime of theft is one of the most frequently committed crimes in
most jurisdictions, including England and Germany. Due to its sig-
nificance in practice, the question of how broadly this offence should be
defined has always been of particular interest. The need to protect
private property interests effectively calls for a flexible definition of
theft. Changing social circumstances and the development of new ways
of transferring property also necessitate new ways of combating inter-
ference with property interests. However, is this need for flexibility
always met by the different jurisdictions in the same way? That this is
not the case can be shown by examining and comparing the current law
of theft as defined and dealt with under English and German law. Rather
than discussing the traditional clashes that come along with a compar-
ison between a continental inquisitorial system and a common law
jurisdiction, the discussion below will focus on the substantive differ-
ences in the law of theft.
The article begins by outlining two current problems of the law of
theft in England produced by the jungle of case law since the Theft Act
1968, namely the oddities of stealing with consent and stealing without
* Postgraduate (LLM) at University of Aberdeen; e-mail nils.weinrich@gmx.de. The
author is indebted to Professor Christopher Gane, University of Aberdeen, for his
helpful advice and comments. The usual caveats apply.
427
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