The Concept of Appropriation and The Offence of Theft
| Author | Emmanuel Melissaris |
| Published date | 01 July 2007 |
| Date | 01 July 2007 |
| DOI | http://doi.org/10.1111/j.1468-2230.2007.00653.x |
The Concept of Appropriation a nd The O¡ence
of Theft
Emmanuel Melissaris
n
The English law of theft is confusing and problematic in principle. Since the introductionof the
Theft Act 1968 there has been inconsistency in the interpretation of appropriation as court and
commentators have grappled with the intuition that appropriation must entail some subjective
element and cannot be purely objective. Although subjectivity is traditionally associated with
culpability rather thanwith conduct, it is argued that some acts can be subjective and yet factual
and stand as causes to e¡ects. Appropriation is such an act, its necessary and su⁄cient condition
being a mindset, here termed proprietary subjectivity, on the part of the actor. It is argued that
clari¢cation of the concept of appropriation can help to resolve misperceived problems. Such
clari¢cation will also reveal other problems in the law of theft. Somete ntative comments delege
ferendaare made suggesting how these problems can be addressed.
INTRODUCTION
With the aim of moving from the protection of possession to the protection of
property, theTheft Act 1968 (hereafterTA1968) replacedthe LarcenyAct 1916 actus
reus requirement of ‘taking and carrying away’ in the o¡ence of theft with the
requirement of ‘appropriation’ de¢ned as ‘the assumption of the rights of the
owner’.This change, however, has caused more problemsthan it solved, as courts
have failed to interpret the concept of appropriation with any consistency. As I
shall argue in the ¢rst part of this article, the controversy is due to the intuition
that appropriation cannot be purely factual but must entail some mental element.
Both courts and commentators have located the problem in that the subjective
element of appropriation seems to belong in the realm of intentions rather than
the act requirement andyet appropriation is ¢rmlyplaced in the actusreus of theft.
I then argue that this problem will be solved, if it can be shown that subjective
states of mind can be factual and that appropriation can accordingly be reinter-
preted as an act, the only necessary and su⁄cientcondition of which is the devel-
opment of proprietarymindset on partof the actor. In order to show this, I shall
have to make two steps: First, I must argue that thoughts can amount to acts and
that appropriation is an i nstance of a thought-act, which is factual yet subjective.Sec-
ondly, I must show that thought-acts in general and appropriation in particular
can indeed have a real e¡ect inthe world.In the light of this argument, I will hint
at how the conceptual clari¢cation of appropriation can help us reconstruct the
judicial interpretation of the lawof theft as coherent and consistentby explaining
n
Law Department, London Schoolof Economics.This paper was presented at a sta¡ seminar at the
LSE LawDepartment. I would like to thank all the participants in that seminar for their helpful com-
ments. I amgrateful to the MLR’stwo anonymous reviewers,Lindy Crewe, Marie Fox, Arlie Lough-
nan, Jill Peay and Matthew Weait for their careful reading andvaluable suggestions. I am, of course,
solely responsible forany remaining errors of fact or judgment.
r2007 The Author.Journal Compilation r2007 The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2007) 70(4)MLR 581^597
away misperceived problems. At the same time, though, it will become apparent
that the TA 1968 is bad law for other reasons pertaining to the concept of appro-
priation. I shall therefore make some tentative comments de lege ferenda.
This article is informed bothby an interest in questionsof philosophyof action
and their relevancewithin the criminal law as wellthe pragmaticconcern of ratio-
nalising the lawof theft in England andWales.Therefore, I start witha brief expo-
sition of doctrinaldevelopment in the area since the enactmentof the TA 1968and
a reconstructive overview of the debate that it has generated. I then move on to
the philosophical question of action and relate it to appropriation. Finally, I turn
back to some of the doctrinal questions. In this way it is hoped the article will
speak to theorists and lawyers alike.
THE CURRENT DEBATE
According to section1 of theTA1968: ‘A person is guilty of theft if he dishonestly
appropriates property belonging to another with the i ntention of permanently
depriving the other of it’. Appropriation is de¢ned in section 3(1) of theTA1968
as ‘any assumption by a person of the right s of an owner . . . and this includ es,
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’. Straight-
forward as this may seem prima fa cie, the i nclusion of appropriation in the d escrip-
tion of theftinstead of the simpler requirementof removalof the thing has caused
great confusion and controversy in the courts and in criminal law theory. Many
questions arose very quickly. What counts as an assumption? For example, does
any handling of a thing amount to an assumption of the owner’s rights, even if it
is trivial or, indeed, lawful? And, and this proved to be one of the most contro-
versial issues, what if the owner has consented? In such cases, does appropriation
take place at all or should we be asking whether the appropriation is dishonest or
not? Which of the owner’s rights must be assumed for that assumption to consti-
tute appropriation?
1
The debate seems always to revolve around one central question, namely
whether appropriation should be regarded as a purely objective requirement and,
therefore,ascertai nedwithout any reference to the subjectivityof either the defen-
dant or the ownerof the thing, or whether some mental element is entailed in the
concept of appropriation. But both courts and theoryhave found it verydi⁄cult
to associate subjectivity with anything other than responsibility. The following
extract aptly reveals this:‘Let us explore the ambit of appropriation by returning
to the mainde¢ning words,‘‘anyassumptionof the rights of the owner’’.Does this
mean that one can appropriate property even if one obtains it with the consent of
the owner? On the faceof it, this might seem absurd: surely one cannotbe said to
steal property if the owner consentsto part with it.’
2
Whatis telling in this excerpt
is how appropriating and stealing are used interchangeably implying that there is an
1 The answerto this se ems tobe fairly uncontroversial, as the courts have(correctly,I think) accepted
that the assumption of any of the rights of the owner su⁄ces.Se e RvMorris [1984] AC 32 0.
2 A. Ashworth,Prin ciplesof Crim inal Law (Oxford: OxfordUP,200 6) 365 (emphasis added).
The Concept ofAppropriation and The O¡enceof Theft
582 r2007 The Author.Journal Compilation r2007 The Modern Law Review Limited.
(2007) 70(4)MLR 581^597
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