SOME REMARKS ON APPROPRIATION IN THE LAW OF THEFT AFTER MORRIS
| DOI | http://doi.org/10.1111/j.1468-2230.1985.tb00832.x |
| Date | 01 March 1985 |
| Published date | 01 March 1985 |
| Author | L. H. Leigh |
SOME REMARKS
ON
APPROPRIATION
IN
THE
LAW
OF
THEFT
AFI’ER
MORRIS
1.
INTRODUCTORY
ENGLISH
law is, unhappily, permeated with words and phrases
allegedly
so
simple as not to require definition,’ or at least not to
require in the criminal law construction in the light of subtleties of
the civil law. One such is ap ropriation, the central element of
actus
reus
in the law of theft. Intended to afford a statement at
once more comprehensible and more comprehensive than the old
“takes and carries away” in the law of larceny, it has proven to be
disappointing in the former respect and nebulous in the latter
despite successive judicial attempts to resolve problems of
interpretation, not by the casuistry of professors but, most recently
in
Morris,
by the application of robust judicial common sense.3 In
my submission, a failure to elaborate concepts has led to avoidable
confusion; the case law surrounding appropriation is confusing
largely because courts have proceeded from case to case without
any consistent elaboration of principle. In this essay I seek to chart
the effect of the decision of the House of Lords in
Morris,
allegedly a simplifying decision, on the notion of appropriation.
That notion, even as it appears on the face of sections
1
and
3
of
the Theft Act
1968,
is unclear.
To
speak of any assumption of the
rights of an owner and of any later assumption of a right, as the
section does, is not helpful, though dictated by the need to bring
both possessors and non-possessors within the same offence. Nor,
in retrospect, was it necessarily a good legislative tactic to leave
entirely to the civil law statements of what the rights of an owner
are. Of course the civil law affords a notion of what the rights of
an owner (including in this context a possessor and a person in
control) are. It does not, however, always distinguish clearly
between an assumption of rights and an invasion of rights or a
right. Such a demarcation must have been intended to operate;
one would assert as much even had the Criminal Law Revision
Committee not indicated at least a proximity of meaning between
appropriation and the civil law doctrine of conversion. But it is,
I
think, evident that the line between assumption and invasion is not
always clearly distinguishable, nor is the line between conversion
and other interferences with goods as clear as one might have
wished. It would have been better had the Theft Act
1968
contained at least a partial statement of the cases which were
P
e.g.
“dishonesty”
as
to which see the line
of
cases
culminating in
Ghosh
(19821
Q.B.
Theft Act 1968, ss.1
and
3.
[1983] 3
All
E.R. 288;
for
an early statement
to
the like effect, see
Eater
(1972)
55
1053; “insults”
as
to
which see
Brurus
v.
Cozens
[1973] A.C.
584.
Cr.App.R. 214 at p.220.
167
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