A semi optimistic article was published just prior to the Theft Act 1968 in the Modern Law Review, regarding the overhaul of the then law of theft, identifying some of the grass-roots problems instigating the major reconsideration (1):·Making the law easier to understand·Reducing complexity and uncertainty·To focus on ownership rights and not possessory rights·To overcome a myriad of inconsistencies under the then current law·To repeal a large amount of obsolete and redundant statutory and common law offences·Reduce the number of offences through new concepts and redefinitions·Expanding the ambit of some offencesThe Theft Act 1968 replaced ...view middle of the document...
J.C. Smith, "Obtaining cheques by Deception or Theft" CLR (1997) 3968. J.C. Smith "Obtaining Property by Deception/Appeal: Commentary on R v Clark (2001) CLR 572 at 574-5Theft------------------------------According to s1(1), if a person appropriates property belonging to another, with a specified state of mind of dishonesty and intending to deprive the owner of the property permanently, then theft is committed. For theft, the central element is 'the dishonest appropriation of another's property'. Appropriation has been equated with the AR of theft, whilst 'dishonesty' with the MR.The problems with Theft were summed up by a satirical outburst by P.R. Glazerbrook, (9) as he went on to propose a complete revision of its elements:"…in the matter of appropriation,…. dishonesty; property; belonging to another; intent permanently to deprive…"I will discuss some of the elements that have evoked the most discontent over the last thirty years that should reflect how illogical and confusing the judiciary have found theft under the Act.-----------------------------------------9. "Revising the Theft Acts" (1993) Cambridge Law Journal p191 at 192----------------------------------------DishonestyFor Professor Williams, 'dishonesty' is '…a special mental state..', different from traditional MR, being more an ethical code for social conduct. It is not a legal term but a question of fact inferred from words and conduct. The jury should give it its ordinary meaning to decide D's honesty. It has been suggested that perhaps it is worth considering the D's motive for assessing dishonesty (10).It is an element that applies to all the offences under the act and also other areas of criminal law, and its importance for sound law is unquestioned.The Theft Act preferred 'dishonestly' to replace the phrase 'fraudulently and without a claim of right', which has been criticised as unnecessary (11). The CLRC chose 'dishonesty' precisely because it was easier to understand by the layman than 'fraudulently' (12).However, under s2(1) of the Act, a partial negative legal definition of 'dishonesty' was provided to be applied to s1(1) only and not to the other offences of dishonesty contained in the act. It tells us nothing about the intrinsic nature of dishonesty, but gives three circumstances of appropriation that were not to be regarded as dishonest. However, "this mode of proceeding certainly suggests that the CLRC wished some undefined residue of 'dishonesty' to exist beyond absence of the special cases", although arguments as to why, were not specified. The two main criticisms for the partial definition come paradoxically from two perspectives:i) Widens the gap for Defendants with spurious claims to be vindicated although admittedly rarely (13).ii) Widens the gap for the jury to use different moral values being attached to 'dishonesty' a state of affairs allowed by judges, thereby incriminating unworthy defendants who 'borrow' without consent...
