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Theft Essay

1830 words - 7 pages

OFFENCES AGAINST PROPERTY Mens Rea in Theft - Dishonesty The concept of 'dishonesty' is nowhere defined in the TA 1968, despite the fact that it is an element that has to be proved beyond reasonable doubt by the prosecution. CLRC 8th Report felt that it was a word that could stand without a definition and which layman on a jury could easily recognise - an improvement on the old law of larceny which spoke of 'fraudulently' with the implication of legal technicalities. s.2(1) TA 1968 provides for 3 situations where the defendant's acts may not be dishonest: · where D has the belief that she/he has the right in law to deprive P of the property - that is, claim of right · where D has the belief that she/he would have P's consent if P knew of the circumstances · where D has the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.In each of these cases, it is the defendant's belief that matters - not whether there is in fact a right, consent or that P could not be found. The test is a subjective one of D's belief.· The 'claim of right' defence is D's belief that there is a right in law, not a moral right - though that might exist under the expanded idea of dishonesty under Feely.If P owes D money but refuses to pay so D puts gun to P's head, takes P's wallet and extracts the sum owing, this is not theft (nor robbery) if D does it in the belief that he has the right to the property. This is even though he knows it is illegal to use a gun in this way - it is D's belief in his/her right to the property that is the central question.· D's beliefs under s.2(1) have to an extent been affected by s.3 TA 1968 - if D, having appropriated the property, discovers who the owner is or that the owner in fact does not consent or that D has no legal claim, then if D keeps the property dishonestly, then this will be theft under s.3 'any later assumption of a right to it...'. This doesn't apply if the property has been used up (money) but say the property was sold and D still has the purchase price...? s.2(2) TA 1968 declares that a person's appropriation of property may be dishonest notwithstanding that person's willingness to pay for the property.This applies to the person taking a milk bottle from a doorstep and leaving 22p - but s.2(2) does not say that this will be theft, only that it may be. The leaving of the money does not as a matter of law negative dishonesty but it does provide evidence for the jury to decide that D was in fact not dishonest.s.2 merely lists situations where D is not dishonest. Is there a residual meaning to 'dishonesty' over and above s.2? For example, where D takes money from P, intending to repay but knowing that P would have refused - is this dishonest? Under the old Larceny Acts, the question of whether a state of mind was dishonest or not was a matter of law for the judge. But there has been a fundamental change:...

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