Criminal Law - Actus Reus of Theft III - Appropriation and gifts (R v Hinks [2000])

  • Created by: Alasdair
  • Created on: 22-11-20 22:19
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  • 2. Actus Reus of Theft III - Appropriation and gifts (R v Hinks [2000])
    • Lords asked to consider whether receipt of a gift could be held to be appropriation
      • Defendant befriended man (x) who was described as being of limited intelligence.
      • Over period of some months, X drew £60,000 from his savings accounts
        • these sums were deposited in defendant's accounts
      • Hinks was charged with theft and convicted.
      • On appeal, House of Lords held acquisition of an indefeasible title to property is capable of amounting to an appropriation
      • Decision attracted criticism because, if you are gifted property, under civil law it is yours
        • Logically, you cannot be said to be assuming right of an owner - you are the owner.
    • 1. What was  the certified question before the House of Lords?
      • 'Whether the acquisition of an indefeasible title to property is capable of amounting to an appropriation of property belonging to another for the purposes of section 1(1) of the Theft Act 1968.'
        • Meant question was whether person can 'appropriate' property belonging to another where other person makes him indefeasible gift of property, retaining no proprietary interest or any right to resume or recover any proprietary interest in property
    • 2. What had the Court of Appeal said about relevance of the belief/lack of belief by defendant that owner has consented to appropriation?
      • Court of Appeal (Rose LJ) said:
        • 'Belief or lack of belief that the owner consented to the appropriation is relevant to dishonesty'.
      • It was not relevant to 'appropriation' since a defendant could appropriate something even if he had consent of owner
    • 3. What was the legal basis of the defendant's appeal to House of Lords?
      • Conviction of a donee for receiving a perfectly valid gift was departure from current law
        • backed up by Professor Sir John Smith's academic arguments
    • 4. Why did the decision in Gomez 'destroy' the appellant's argument in Hinks?
      • It treated 'appropriation' as a neutral word meaning 'any assumption by a person of the rights of an owner'
        • So indefeasible gift of property can amount to appropriation
          • Thus, conviction of Hinks and Court of Appeal decision (which Lords upheld) were not departures from existing law
    • 5. Why did Lord Steyn reject the appeal and the appellant's suggested revision of definition of 'appropriation'?
      • He said that if law is restated by adopting a narrower definition of appropriation, outcome is likely to place beyond reach of criminal law dishonest persons who should be found guilty of theft
      • Suggested revision would unwarrantably restrict scope of law of theft and complicate fair and effective prosecution of theft
      • Decisions in Lawrence and Gomez can be applied by judges and juries in a way which does not result in injustice
        • Mental requirements of theft (particularly element of dishonesty) are adequate protection against injustice
    • 6. What did Lord Steyn say about appellant's argument that civil and criminal law were in conflict in this area?
      • Yes, there was a conflict
      • It was wrong to assume criminal law was wrong rather than civil law
      • Conflict did not justify departure from Lawrence and Gomez
      • Conflict was good thing because it meant there was no need to explain difficult civil law concepts of ownership, juries.
    • Conclusion
      • Held there can still be appropriation, even when there has been a valid gift of property to defendant according to civil law
        • e.g. when it was not obtained by fraud, duress or undue influence.
    • Critiqued by Professor Stephen Shute in 'Appropriation and the Law of Theft'


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