Reform of Dishonesty Offences
Until 2001, theft fraud and related offences were governed principally by the Larceny Act, 1916. The act focused on stealing in the sense of taking a physical object. The legislation was comprehensively revised in England 1968 and in Northern Ireland in 1978 with modern theft legislation.
The Theft Act takes a broader view of how economic benefits might be unlawfully taken and appropriated. The legislation follows certain key features of the UK legislation and accordingly the cases under the UK legislation may be relevant in many cases. The definition of theft is now so broad that it may overlap with other offences under the broad category of dishonesty.
A significant change to the legislation was the introduction of the concept of dishonesty. This is designed to reflect society’s standards of dishonesty. It is not however that the matter is simply left to a jury where the trial is by indictment. The judge will have an influential role in determining whether the evidence is capable of meeting this element of the offence.
Nature of Theft
Theft covers a number of previous offences. Larceny involved taking objects. Embezzlement and fraudulent conversion involved misappropriation of that which had been received lawfully. They are each now covered under theft/appropriation.
A person is guilty of theft if he or she dishonestly appropriates property without the consent of the owner and with the intention of depriving its owner of it. The asset or property need not have any particular value.
There are several elements to the offence of theft;
- intention to deprive the owner
- absence of consent
The maximum penalty is 10 years imprisonment and/or an unlimited fine. In imposing sentence, the court may order the return of the stolen property or payment of a sum representing its value.
Theft is a crime against the ownership of property. It is not necessarily limited to taking possession. It includes dishonest retention or disposal after a lawful or an innocent acquisition.
Theft need not involve the appropriation of all of a person’s rights of ownership in goods. It involves an adverse interruption or usurpation of the rights of the owner. Therefore where persons change price labels in a retail outlet, facilitating their sale for a lower price this is probably sufficient usurpation of the rights of the owner, to constitute theft.
Dishonesty means acting without a bona fide/ good faith claim of right. A person may establish the defence of a claim of right provided that he honestly believed he was entitled to take the property concerned. This may occur even if there is no reasonable basis for that belief.
The presence or absence of reasonable grounds is evidence of the honesty and good faith of that belief. However, if the belief is objectively unreasonable or implausible, then it would be difficult to convince the judge or jury that the claim was made in good faith.
The requirement for appropriation modernised the equivalent provision in the Larceny Act which focused on taking away physical “things.” Appropriation is wider than taking.
Appropriation means usurpation of or adverse interference with the proprietary rights of the owner. This may include physically taking away goods, using them, consuming them and selling them.
Appropriation may be a continuing state of affairs. It typically involves dominion or possession of goods. A theft may involve multiple appropriations of different goods or different rights in the same goods. There may be appropriation when there is an abstraction of rights in goods. Therefore, it was held that the use of a District Council’s hot water system was an appropriation of its rights, sufficient to constitute appropriation for the purposes of theft.
It may depend on the context as to what constitutes an appropriation of another’s property. A person may be in possession of an article with another’s consent. This is lawful in so far as it goes. However, if that person sells the article without consent, this would be an interference with the property rights and a usurpation of the other’s property rights. It is enough that the person interferes with property rights to the detriment of the true owner.
Where a person who holds assets as a trustee in the course of a business appropriates some or all of the property held for his own use or benefit without the consent of the owner, the person shall be deemed to have appropriated the property or the sum representing it.
In proceedings where there is a deficiency in the property or the sum representing it, and a trustee or equivalent fails to provide a satisfactory explanation for the whole or the part as a deficiency, it is presumed until the contrary is proved that the person appropriated it without the consent of the owner, the whole of the part of that deficiency concerned.
Dishonesty implies a state of mind. However, the matter is determined by objective evidence. In deciding whether the accused has acted dishonestly, the jury must decide whether what was done accords to standards of reasonable and honest persons. If it is not dishonest by those standards, then the accused will be acquitted. If it was dishonest by those standards, the jury must consider whether the defendant himself must have realised what he was doing was dishonest.
In many cases actions would be obviously dishonest and there would be no doubt s the accused’s state of mind. A person may not subjectively assert that he believes such and such thing if he knows that it is dishonest by ordinary standards. A person may not decide stealing is justified for some alleged political or greater purpose. This will be nonetheless dishonest.
As with private mental elements generally, this must be inferred from circumstances. The mere assertion of a private subjective thought with no apparent outside indication or basis would be unlikely to succeed.
What appears to be a gift, may in fact constitute a dishonest appropriation. The acquisition by a person of a gift deliberately engineered from manipulation of a person with limited capacity would constitute misappropriation. The appropriation is flawed at law as it is given without proper consent, where this is done knowingly and dishonestly.
Intent to Deprive
Theft requires that the defendant appropriated the property with the intention of depriving the owner of it. The deprivation may be permanent or temporary. It may even be theft if there is an intention to return the property.
Under the prior legislation, there had to be a permanent deprivation, so that unlawful borrowing such as joyriding was not contrary to the Larceny Act. (It is subject to a special road traffic Act offence). Under the new legislation, temporary deprivation of ownership is sufficient to constitute theft.
The owner need not be aware of the deprivation. He may not be aware that it has been appropriated at all.
An appropriation of property may take place at any time. A person may acquire property without the intention of appropriating it. He may, however, at a future point appropriate the property by intending to deprive the owner at that point.
Where a person receives property by mistake and is under an obligation to restore it, whether in whole or in part or its proceeds, then the person entitled to restoration is deemed owner and to the extent that the first person (under the obligation) relative to had an intention not to make restoration, it is deemed an intention to deprive the owner of the property or the proceeds of such amount.
It is a defence (the offence is not made out) to show that the owner consented to the use or appropriation of the property. The consent must be free and fair. It must not be caused by deception, coercion or intimidation. There is deemed to be deception where a person has created or reinforced a false impression on the part of the owner, including a false impression as to lower value, as to intention or the other’s state of mind.
If the owner gives conditional or limited consent to appropriate property, an action in excess of the terms of that consent may constitute theft.
It is a defence that the accused honestly believes on reasonable grounds that he had the owner’s consent to appropriate the property or that the owner would have consented had he known of the appropriation and the circumstances.
It is a defence that the accused appropriates the property in the belief that the identity of the owner cannot be discovered by taking reasonable steps. This would cover finding monies that are believed to be lost, where the owner cannot be found with reasonable diligence..
Provided the belief is honestly held then the fact that consent does not exist is not critical. This does not apply where the property came to the accused as a trustee or a personal representative.
If a person acquires property in good faith without knowledge or notice, it will not be theft if the property is, in fact, stolen so that the true owner cannot give consent. The person who acquires the property must act in good faith. However, if there are reasons to suggest that the property may be stolen, he may be guilty of theft.