Theft is the intentional taking of someone else’s property dishonestly without the owner’s consent. Theft requires the physical elements to be supported by fault, whereby the accused either intends to deprive the property’s owner permanently, or seriously impinge on the owner’s proprietary rights.
Deception is the intentional use of false representations by an individual through words or conduct; in order to dishonestly obtain an unfair advantage for self or another by inducing the victim to transfer a benefit or inflict a detriment upon the victim. The intention to deceive is the supportive fault element.
Mill stated the ‘classic liberal view of the relationship between law and morality’, introducing the Harm Principle: ‘the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others’.
According to Feinberg, the Harm Principle is liberty limiting - in order for behaviour to be caught by criminal law, that is, considered harm, wrongdoing must be a serious offence. ‘To be harm a person’s interests must be setback’.
Section 134(2) of the Criminal Law Consolidation Act (‘CLCA’) provides that a person will be guilty of an offence if they seriously encroach on the owner’s rights to their property. To seriously encroach would mean the offender dealt with the victims property with the intention of treating it as their own to dispose of at will. Or, the offender dealt with the property in a manner that created a substantial risk to the owner of recovery. The function of s 134(2) is to deter the possibility of that harm. To permanently deprive someone of their property rights by dealing with property dishonestly and without their consent is a clear setback of interests to the owner - satisfying Feinberg’s perspective.
If someone acted dishonestly without the requisite of causing harm to another, and was convicted of theft, the law would depart from the Harm Principle. If an offender’s conduct is dishonest and violates another’s property rights, it would satisfy the Harm Principle and justify criminalizing the conduct; clearly reflected in s 134.
The Harm Principle aims to ensure ‘minimal state interference in people’s lives’. The State should not interfere with personal liberty; interference should occur only should someone else be at risk.
If an individual engaged in deceptive conduct, or misused the trust placed in them by another to induce the victim to transfer a benefit or suffer a detriment, they would affect the person’s interests by dishonestly impeding their judgement and hence be at risk. By coercing another to part with their property through false representations in order to gain a benefit or cause a detriment, an offender infringes another’s rights.
Misusing trust placed in another is wrongful because it would betray them; representing clear harm to their interests. Had the victim...