Published online by Cambridge University Press: 02 January 2018
The law of theft, as understood in Gomez and Hinks, has been the occasion of almost unanimous academic condemnation and of robust dissenting opinions in the House of Lords. While much of the critical discussion is sophisticated and challenging, it is important that the baby is not to be expelled with the bathwater. We suggest that one argument in favour of the current position is that it offers distinct protection to some of the more vulnerable members of society. This advantage ought nevertheless to be sacrificed if it can be purchased only at the cost of violating the rule of law and the harm principle. But our examination of these ideas reveals that the price need not be paid. The rule of law contains not one idea, but a plurality of ideas, many of which support the current position. As for the harm principle, it is notable that Hinks does not castigate harmless behaviour; rather it attacks the wrong of exploitation. This raises many difficult issues, but we argue that unless such exploitative behaviour is explicitly addressed in Legislation, reforming the current ‘broad’ understanding of the law in favour of a ‘reductive’ account assimilating theft to non-voluntary transfers would be a retrograde step. In principle the new concern for protecting the vulnerable from exploitation is welcome.
1. For a critical overview of the development of theft, see A P Simester and G R Sullivan Criminal Law: Theory and Doctrine (Oxford and Portland, Oregon: Hart Publishing, 2000) pp 417–473 and references therein.
2.  3 WLR 1067.
3.  2 AC 241.
5.  Crim LR 162 at 164. Stephen Shute entertainingly collects the rudest of the anti-Hinks invective in S Shute ‘Appropriation and the Law of Theft’  Crim LR 445 at 450 n 29. Shute himself, while remaining heavily critical of Gomez, has offered a qualified defence of Hinks in the above piece.
6. S Gardner ‘Appropriation in Theft: The Last Word?’ (1993) 109 LQR 194 at 195. See also S Gardner ‘Property and Theft’  Crim LR 35.
8. A Ashworth Principles of Criminal Law (Oxford: Oxford University Press, 3rd edn, 1999) p 90.
9. Shute and Horder, n 7 above, at 553.
10. G Fletcher rethinking Criminal Law (New York Oxford University Press, 2000) remark 3.
11. Wittgenstein, Compare L Philosophical Investigations (Oxford: Blackwell, 1953) p 65 Google Scholar.
12. For discussion, see Fogelin, R J Wittgenstein (London: Routledge, 2nd edn, 1987) pp 133–138 Google Scholar.
13. Wittgenstein, n 11 above, p 66.
14. R v Lovell (1881) 8 QBD 185.
15. Ashworth, n 8 above.
16. Our primary purpose in speaking of the broad view is the modest one of opposing what we are calling the reductive view. There is an important question as to the scope of the broad view. Just how broad is it? Must theft always be understood in the widest terms, as including takings, non-voluntary transfers, exploitation, deception, manipulation and so on? The broad view may go too far if it would imply no definition of theft could be a good one if it did not cover all of what is now included under s 15 of the Theft Act 1968. The fair labelling argument, as we say in the text, necessarily involves some speculation about what is ‘widely felt’ and understood. We believe that this could neither be so broad as to imply that, say, the overcharging behaviour of the defendant in R v Silverman (1987) 86 Cr App R 213 must be considered to be theft instead of or as well as deception or something like ‘swindling’; and neither could it be so narrow or reductive as to imply that there is only theft where there is a taking. We do not try to settle this issue here. In the text we will speak of the ‘broad conception’, though it could have been called the ‘non-reductive’ conception. See also Gardner (1993), n 6 above, esp at 198.
17.  2 AC 241 at 262.
18. J Raz The Authority of Law (Oxford: Oxford University Press, 1979) p 228.
19. See Raz, n 18 above, pp 219–223.
20. Hayek, F A The Constitution of Liberty (London: Routledge, 1960) p 153 Google Scholar. Beyond this sound point, much of Hayek's account of the rule of law is bizarre, eg his failure to see the role the welfare state can play in promoting autonomy.
21. See Raz, n 18 above, p 221.
22. Ashworth, n 8 above, pp 7678.
23. Fuller, L The Morality of Law (New Haven: Yale University Press, 2nd edn, 1969) pp 33–38 Google Scholar; Raz, n 18 above, pp 214–219.
24. Ashworth, n 8 above, pp 75–76.
25.  AC 435, per Lord Morris.
26. Ashworth, n 8 above. This formulation makes the idea sound like the position of Lord Devlin in The Enforcement of Morality (Oxford: Oxford University Press, 1965) and therefore subject also to the powerful (and to our mind, compelling) criticisms of H L A Hart in Law, Liberty and Morality (Oxford: Oxford University Press, 1963). Though this is far too big an issue to address here, Grant Lamond has suggested to us that the principle could be better formulated as ‘which is, and is widely regarded as immoral’ to lose many of the problems with Devlin's formulation.
27. Ashworth, n 8 above, p 76.
28. We deal in detail with the harm principle later, but a brief comment on it is necessary here to the extent that it touches on the rule of law ideas we are currently considering.
29.  2 AC 241 at 262.
31. R v Ghosh  QB 1053. The judge must use the Ghosh direction only where dishonesty is a live issue, ie only where the defendant is effectively arguing that she thought her behaviour was not dishonest. In other cases it might be misleading to use the direction: R v Price (1989) 80 Cr App R 409. In the current context, it is hard to imagine how dishonesty would not be a live issue.
32. In Kenneth Campbell's example, a shopkeeper gives me too much change and I do not point this out. Would this be dishonest by common standards? What if I just do not know one way or the other? On the test it would appear there should be an acquittal: K Campbell ‘The test of Dishonesty in R v Ghosh’ (1984) CLJ 349.
33.  AC 241 at 256. In similar vein, A T H Smith asserts: ‘Lawful acts should not be accounted dishonest… An intention to do an act that is in fact lawful should not be dishonest in law, even though D believed himself to be acting illegally or immorally.’ However no argument or authority is given for this proposition. See A T H Smith Property Offences (London: Sweet & Maxwell, 1994) p 276 [7–70].
34. Legislating the Criminal Code: Fraud and Deception (Law Com no 155, 1999) para 5.15.
35. Raz, n 18 above, p 219.
36. Law Commission, n 34 above, para 5.17.
37. See E Griew ‘Dishonesty: The Objections to Feely and Ghosh’  Crim LR 341. A notable exception is R Tur ‘Dishonesty and the Jury’ in A Phillips Griffith (ed) Royal Institute of Philosophy, Lecture Series 18, Supplement to Philosophy (1985). Moreover the Law Commission itself seems to have changed its mind in its recent report: Fraud (Law Corn no 276, 2002):‘… we are not aware of any research or evidence to show that verdicts are in fact significantly inconsistent when dishonesty is a live issue in a case’ (para 5.8). And apparently the Magistrates' Association did not consider the requirement of Ghosh dishonesty to be problematic in practice (para 5.14).
38. Mock jury trials, perhaps, or something like the attitude surveys discussed in the context of distributive justice by David Miller in his Principles of social Justice (Cambridge Massachusetts: Harvard University Press, 1999) pp 61–92. The Law Commission cite the findings of a Mori poll, finding it inconclusive in the current context. Law Corn, n 37 above, para 5.9.
39. This is obviously a very deep question. See eg Aristotle Nichomachean Ethics Book V; Dancy, J Moral Reasons (Oxford: Oxford University Press, 1993)Google Scholar. Cf Law Com, n 37 above, para 5.17.
40. See Gardner, n 30 above, at 521–522.
41. Gardner, n 30 above, at 521–522.
42. Gardner, n 30 above, at 506. Perhaps it was this concern that prompted the Criminal Law Revision Committee to remark on the importance of the s 1 offence concentrating on ‘what the accused dishonestly achieved or attempted to achieve and not on the means-taking or otherwise - which he used in order to do so’: CLRC 8th Report Theft and Related Offences (Cmnd 2977, 1966) para 33.
43. On the harm principle generally, see Feinberg, J Harm to Others (New York: Oxford University Press, 1984)Google Scholar.
44. Gardner, n 30 above, at 513.
45. Gardner, n 30 above, at 513.
46. See Gardner, J and Shute, S ‘The Wrongness of Rape’ in Horder, J (ed) Oxford Essays in Jurisprudence (Oxford: Oxford University Press, 4th series, 2000) p 193 Google Scholar.
48. Gardner, n 30 above, at 510. See also Simester and Sullivan, n 1 above, p 460: ‘The essence of theft is deprivation.’ For an illuminating discussion of the value of property rights, see Gardner and Shute, n 46 above, pp 199–203.
49. On the nature of exploitation, see Feinberg, J Harmless Wrongdoing (New York: Oxford University Press, 1988) pp 176–210 Google Scholar.
52. In similar vein, Gardner and Shute argue that consent should set the boundaries of criminalisation in certain contexts of sexual use and abuse, on the basis that the law's deference to the participants' consent (in, say, prostitution) is ‘rehumanizing, because it credits them with moral agency, without which their dehumanization is only compounded’: Gardner and Shute, n 46 above, p 208. In their view, respect for the humanity of citizens is furthered by respecting their sexual autonomy.
53. Lamond, n 50 above, p 233.
54. Raz, n 47 above, p 373.
55. Raz, n 47 above, p 378.
56. Gardner and Shute, n 46 above, p 207.
57. Wilkinson, n 51 above, pp 72–81.
58. S Gardner ‘Appropriation in Theft: the Last Word?’  109 LQR 195. Consent should not be a component of a legal definition for a number of reasons, eg the undesirability of having counsel argue on, and of directing juries and justices on, questions of what civil property is in criminal trials.
59. Simester and Sullivan, n 1 above, pp 453–454.
60. There may be good reasons for prising apart civil and criminal perspectives on the same transaction. The difference lies in the fact that the civil law must be sensitive to the interests of third parties. This is supported by Simon Gardner's compelling argument emphasising the different functions pursued by the criminal and civil law, for the civil law is ‘rightly concerned to respect established proprietary rights, even if unsatisfactorily acquired … The civil law's relatively hard-nosed position may be seen as a recognition that it is in the public interest that even unsatisfactory acquirers should be able to deal with the property in question as owner, especially for the sake of third parties who subsequently acquire it’: see S Gardner ‘Property and Theft’  Crim LR 35 at 42.
61. It is very likely that the transfer in Hinks ought to have been held voidable on the basis of undue influence.
62. See S Gardner, n 60 above.
63. Feinberg, n 49 above, p 12.
64. J Beatson and A P Simester ‘Stealing One's Own Property’ (1999) 115 LQR 372 at 373.
65. Ashworth, n 8 above, p 163.
66. Ashworth, n 8 above, p 163.
67. Ashworth, n 8 above, p 165.
68. On the nature of appropriation as a continuing act, see R v Atakpu and Abrahams  QB 69.
69. Simester and Sullivan, n 1 above, p 450.
70. Shute, n 5 above, at 454.
71. Ashworth, n 8 above, p 383.
72. We are again particularly grateful to Grant Lamond for discussion of this point.
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