Reforming Theft: Taking without Consent - Critical Response

This article is a critical response to the reviewed representation of theft by Nathan Tamblyn, in Reforming Theft: Taking without consent. In this piece the author aims to understand the key arguments extended by Nathan and critically analyse them so as to explain the wide veracity of the implications that are being sought to be made by such reformation of theft.

ASSIGNMENT

TABLE OF CONTENTS
INTRODUCTION...........................................................................................................................1
MAIN BODY...................................................................................................................................1
PART 1.............................................................................................................................................1
Part 2................................................................................................................................................5
Part 3................................................................................................................................................7
CONCLUSION................................................................................................................................9
REFERENCES..............................................................................................................................10

INTRODUCTION
This article is a critical response to the reviewed representation of theft by Nathan
Tamblyn, in Reforming Theft: Taking without consent. In this piece the author aims to
understand the key arguments extended by Nathan and critically analyse them so as to explain
the wide veracity of the implications that are being sought to be made by such reformation of
theft.
The article presents a structured reform in the understanding of the crime of theft under
the Theft Act of 1968 and also incorporates the original ideas from the older law of 1916 namely,
Larceny Act. It is a well thought out approach with clearly demarcated ideas based in certain
terms like ‘dishonesty’ and ‘appropriation’. It is of key importance to understand this proposed
reform and it’s structure as the crime here is one of the most basic and crucial crimes and thus is
quite pertinent. It is a common offence in all countries and being an offence against property
holds direct connection with the initial development of laws; be it the reference to Mode’s 10
commandments or Justinian Code.
This discussion in an article form would be modelled as per the structure of the article
getting discussed. In the first part the aim would be to delineate the key laws and terms or
phrases that are to be talked about.
The second part deals with the detailed analysis of the arguments and examples as
presented in the article by Nathan; along with a critical review of the same with similar or
different examples to assert individual reasoning.
In the end a conclusion would emphasise on the author's understanding giving a point
wise overview of the discussion undertaken in this piece.
MAIN BODY
PART 1
The legislative structure of the offence of theft in the country has been guided by
principles of common law. It was only in 1916 that Larceny Act surfaced and came up with a
clear definition of the offence unlike the previous statutes. It was of importance to understand its
operation and nuances for better protection of individual property. In the darker phase , prior to
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1916 the confusion among the common people about the offence was widespread. Although,
there was a sense of deterrence and the propensity to commit the offence was challenged by the
courts then; the opportunity of a murky law creates possibilities of undue punishment or dog's
law as Bentham said. Therefore, a clear reference that was well scripted was crucial.
The initial understanding of the offence of larceny as under that statute and prior to it
circles around the notion of permanent deprivation. It was based on certain key phrases like
“without the consent of the owner” ; “fraudulently” ; “claim of right in good faith” ; “anything
capable of being stolen” and lastly a brief reference to intent to “taking permanently” so as to
deprive the owner.
All these aspects are a common factor in most crimes against property. The ideas of a
fraudulent behaviour, consent and movement of the property to qualify as “taking” are key
aspects that have been dealt under the proposed reform as well. The key theme of Nathan' s
work revolves around these terms. The understanding of “anything capable of stolen” has also
been focussed upon while discussing intangibles.
Larceny Act, 1916 was a legislation that characterised the offence on taking permanently
out of control or permanent deprivation in a way that prevents the owner or rightful person to
possess from its enjoyment. As per the Criminal Law Revision Committee1, there was a chink as
the law did not really account for the “wrongful keeping” of the property in question. 3
So, in order to reform the same and create a new offence under the Theft Act of 1968 it
was reiterated as an offence that included dishonest intention and the idea of appropriation of
such property in question. This appropriation was again qualified to be of a permanent nature and
the temporal aspect remained unquestioned. Thus, we see that appropriation became the common
term for not only taking but keeping as well. It meant that the idea of undue enjoyment of the
property by exercise of the possession a thief had was to criminalised. If the thief acts upon one
or any of those rights, one has by the virtue of possession, it is naturally appropriating the
property to its benefits. Therefore, it was a wider definition in comparison differentiated on the
basis of dishonest intention rather that the fraudulent qualification that was ascribed in the
previous law. This comparison has also been drawn by Nathan. It is of crucial importance in his
piece. The article draws a clear demarcation between the understanding of fraudulent and
dishonest behaviour simultaneously to talk about intention, knowledge and recklessness in his
1 F. Sellers, Theft and Related Offences, 8th Report (London: HMSO, 1966), Cmnd.2977, pp.21, 36.
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proposed reform. This shall be the first part of further evaluation with the underlying notion of
consent.
Secondly, an analysis of arguments pertaining to the development of “taking away” and
“appropriation” by the courts would be made. It is of importance to understand as to how this
analysis by Nathan can reform the system with ease and not with a lot of paperwork.
Nathan's proposed reform: It is the crime of theft where a person intentionally or
recklessly takes or keeps another’s property, knowingly or recklessly without that other’s
consent. There is a defence if the person believes that: they have a right to take or keep the
property; or the other would consent.
This definition as he clearly discusses is not only an improvement over the old law but
also tries to do away with all the plausible confusions that the current structure of the offence
creates. In brief, he refers to how the idea of “keeping” as identified by the Criminal Revision
Committee2 was duly incorporated but with a failed attempt at an unequivocal interpretation. In
his definition the presence of “taking” and “keeping” in explicit terms highlights that he seeks to
distinguish them from the current scheme of appropriation.
In this background, it is imperative to under the terms that qualify both these ideas. As
mentioned in the previous part, the terms that have come into being from the erstwhile Larceny
Act are the ones which are a part of theft in general parlance all over the globe. These qualify
“taking away” in a fraudulent manner or without due consent. Consent forms a clear defence in
the current scheme of law as well as the proposed reform. It is only in absence of consent that
such an act of moving or appropriating becomes criminal. In a parallel scheme today, the act of
appropriation is qualified by dishonesty which as per the context is a troubled concept in itself.
Both these aspects of consent and dishonesty “as a troubled concept” would be discussed in the
third part which would help crystallise the key points made in this discussion.
Jumping back to the aspects of dishonesty and fraudulent, it is of good value to look at
the argument extended by the article at hand. It states that fraudulent behaviour under the larceny
law was understood as an intentional or deliberate doing without the possibility of mistake. It
further states that his reform seeks to only add the aspects of recklessness to it and agrees with
2 F. Sellers, Theft and Related Offences, 8th Report (London: HMSO, 1966), Cmnd.2977, pp.21, 36.
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the intention part. Looking at the other definition from the current scheme he highlights that the
Revision committee3 in their good understanding thought dishonesty to be a suitable word rather
than fraudulently and was merely a synonymous term in use. This was still in line with the mala
fide intent aspect and carried forward the consent defence.
One can though clearly agree with this viewpoint which is well substantiated by the
failure of the Committee to distinguish between the two, the article doesn’t touch upon the
possible sources and ideas that could have been taken by the committee. An example of this shall
be given in the next part.
This exchange of synonymous terms though created a crucial rift in the understanding of
fraud and theft. The understanding of fraud tends to align not alone with the dimension of mala
fide intent but also on the aspects of acting upon that intent by deceiving and the aim is to induce
a wrongful gain or wrongful loss resultantly. Theft on the other hand is an act which riding upon
the mala fide intent leads to loss of control over a property and thus the assumption of rights gets
transferred to the possessor.
Herein, we see that in fraud the actor induces the victim to act in a certain way and thus
there is some consent but this consent is vitiated by the presence of fraud. This understanding can
be borrowed from the contract laws as well. Similar understanding has been pointed out as an
example in the article. Therefore, it is crucial to understand that the current scheme failed to
demarcate this rift and has been charging offenders for theft when the real basis of the criminal
act was in inducement. Suitable example would be Morris' case.4
Thus, it is to be concurred with Nathan that an act of theft necessarily involves the idea of
dishonesty leading to taking or appropriation, and not inducement which is a result of the intent
to defraud by seeking consent. The act of inducement to seek consent is an added step that
differentiates the two offences. This highlights the need for a change in law or at least in practical
application of the same.
3 F. Sellers, Theft and Related Offences, 8th Report (London: HMSO, 1966), Cmnd.2977, pp.21, 36.
4 Morris [1984] A.C. 320 (HL).
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Part 2
Coming to the core aspect of “taking away” and “appropriation” the Jurisprudential
understanding as developed by the courts prior to the larceny law was to understand taking as
permanent deprivation while simultaneously also implying the dimensions of touching excluding
mistake based in good faith.
This understanding seems paradoxical as a mere touch is incapable to deprive one of
permanent usage. Only in instances of a mishap or a mistaken conduct can this be true with
situations like breaking a vase or a glass utensil or taking away car keys in good faith. While the
first 2 would highlight permanently deprivation the other is about keeping the rightful owner out
of control of his /her property for a temporary or maybe permanent time. The temporal aspect
will be touched upon in a while.
All of these instances, anyhow, are covered under the good faith defence available under
the larceny law and thus would not qualify as theft. But, a mere movement of the keys not in
mistake or a removal of a glass utensil from the shelf would attract liability if the same was done
with dishonest or fraudulent intent.
The actus reus though, was always taken to be primary in these cases and the enquiry of
intent was based on the factual analysis by courts. The act was in itself one to permanently
deprive even if the movement was minimal. The fallacy was adopted in the reasoning while
interpreting the current law based on appropriation which was just allowed to add the aspects of
‘keeping'. This led to results which could potentially criminalise trivial instances of assumption
of singular rights.
It can be highlighted by an example where A in a dark alley gets confused about his car
and tried to open the door of another car of same model and colour. A may not have had a
dishonest intention to break open the car or deny any rights. He may claim the good faith defence
here but the question lies in the fact if such mere touching of the car door handle is sufficient to
raise an alarm and claim theft.
Nathan won’t deny this to be a sufficient cause to raise alarm and an objective reasonable
person won’t too. It is here that we see the irrelevance of the term appropriation. In the court of
law and by the existing jurisprudence it is rather easy to prove that the act in question was of
appropriation of one of the several rights and if we hypothetically remove the good faith defence
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and add the possibility of dishonest intent which can be derived from the equipment A was using,
or the past character, or by imputing subjective knowledge it can be said that A was preparing to
attempt theft. This hypothesis is similar to the example used in the article and thus, we see that
the point of appropriation in the sense of touching is too trivial but sufficient enough for an
alarm. The factual analysis of an attempt or preparation is a matter separate from this discussion.
The difference between appropriation and “taking or keeping” lies in the fact that it can even
include trivialities that increases the burden on courts. This is peculiarly crucial with respect to
the change in propensity of criminal behaviour or deviance.
Thus, we see that appropriation has been largely misconstrued on two counts:
 Due to the interpretation of the term followed from the erstwhile laws
 The qualification of dishonesty being one that is itself not very clearly
enunciated is not completely suitable with the current wording
This last aspect draws this discussion to the final part which would discuss a out the
words that correlate with consent and dishonesty developing the idea of recklessness as adopted
by Nathan in the article.
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Part 3
Consent was a defence in the old law and even in the current regime. One can see from
the above discussion that the understanding of consent has been confused with that of
inducement or induced consent which falls in the realm of fraud and not of theft. Dishonesty has
been criticised to be based in an understanding of honest behaviour rather than a clear disjunctive
picture which is generally more comprehendible. This particular part focuses on a few aspects
that the author as a reader found could contribute as supporting reasons for the reform that is
possible by either legislating or enunciation in court.
A breach of Consent in terms of theft is only relevant where the aspect of “keeping
intentionally” is involved. All other situations that deal with inducement are in the domain of
fraud. As the article points out in brevity, it has been taken as an omission which can be
penalised. This brings to us the idea of temporary borrowings gone ‘bad’ due to the possible
undue “keeping” by the borrower.
The article discusses with suitable examples from daily lives about how borrowings can
be a cause of concern when maintained maliciously or even recklessly. The understanding of
degree of such dishonesty in the immediate instance of no value to the owner who fails to enjoy
the rights it has over the same due to lawful ownership. A license to use whether implied or
explicit is based in the same concept. We can understand this using example of pledge, whereby
on the event of failure to pay certain rights to enjoyment cease.
But borrowing is no pledge and thus the licensee has no right to continue its possession
due to mala fide intent or recklessness. Thus, intention or recklessness forms a key element of
borrowing, as well as theft particularly where 'keeping' is in question.
Using an example from the article that pertained to borrowing from employer's cash in
'bad knowledge' of consent or recklessness to pay heed , or a completely intentional choice to not
pay heed despite having a “good intention” to pay back leads to loss of control without consent.
To emphasise on this and to highlight a crucial source, one shall look at the Indian Penal
Code that was enforced in 1872. The elements of 'dishonesty'5 and 'fraudulently'6 have been duly
defined separately. This not only brings clarity in thought but highlights the possible approach
5 S. 24, Indian Penal Code 1872.
6 S. 25, Indian Penal Code 1872.
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UK should have followed through its own expertise in one of the countries of the
commonwealth.
Not only that, but when we look at the definition of theft though it is apparent that the
notion of “keeping” is missing it has been suitably identified and dealt by the Courts. The notion
of permanent detriment is also missing from the definition and that makes it broad enough to
encapsulate the idea of temporal loss. The same has been recognised by case law.7
The article at hand seeks the usage of New Zealand law to understand Dishonesty.8 One
can add the Indian reference too. The Indian reference clearly aligns with Nathan's proposal in
part with identification of intention. Adding the aspect of recklessness is crucial, but the author
fears that it may cause unnecessary inflow of cases.
Recklessness was probably avoided as being a concern for its wide applicability in the
legislation and to allow for proper remedy under the small causes. The importance of
recklessness though has been suitably highlighted and if the claims of recklessness seem to be of
trivial nature they can be suitably taken up by the Magistrate Courts as an act that was largely
against the individual rather than one against the society. The understanding of civil theft9, as in
U.S., is what in my view suits this kind of recklessness and the consequent remedial approach.
Nevertheless, the notion of dishonesty and even misappropriation from the Indian
legislation seems to be a more suitable and relevant source to support the reform as proposed.
7 Pyare Lal Bhargava v. State of Rajasthan, AIR 1963 SC 1094.
8 N. Tamblyn, Reforming Theft: Taking Without Consent, Crim. L.R. 2020, 7, p. 610, 597-615, 2020.
9S. Parsons, Theft liability in business and other civil law relationships, Bus. L. Rev., 26, p.141, 2005.
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CONCLUSION
The article by Nathan presents a structured reform in the understanding of the crime of
theft under the Theft Act of 1968 and also incorporates the original ideas from the older law of
1916 namely, Larceny Act.
The author in this discussion concurs with Nathan that an act of theft necessarily involves
the idea of dishonesty leading to taking or appropriation, and not inducement which is a result of
the intent to defraud by seeking consent. The act of inducement to seek consent is an added step
that differentiates the two offences. This highlights the need for a change in law or at least in
practical application of the same. We also see that appropriation has been largely misconstrued
on two counts due to the interpretation of the term followed from the erstwhile laws as well as
the logical fallacy by way of cancelling out a key phrase.
It is a well thought out approach with clearly demarcated ideas based in certain terms
like ‘dishonesty’ and ‘appropriation’ the notion of dishonesty. Definition and practice of
‘dishonesty’ and even ‘misappropriation’ from the Indian legislation seem to be a more suitable
and relevant source to support the reform as proposed.
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REFERENCES
Green, S., Theft and Conversion–Tangibly Different?’(2012). LQR, 128, p.564.
Herring, J., 2014. Criminal law: text, cases, and materials. Oxford University Press, USA.
Melissaris, E., 2007. The concept of appropriation and the offence of theft. The Modern Law
Review, 70(4), pp.581-597.
Parsons, S., 2005. Theft liability in business and other civil law relationships. Bus. L. Rev., 26,
p.141.
Sellers, F., Theft and Related Offences, 8th Report (London: HMSO, 1966), Cmnd.297.
Simester, A.P. and Spencer, J.R., 2010. Simester and sullivan’s criminal law. Theory and
Doctrine, pp.342-343.
SPENCER, J., 1977. METAMORPHOSIS OF SECTION-6 OF THEFT ACT. CRIMINAL LAW
REVIEW, (NOV), pp.653-660.
Steel, A., 2008. Taking Possession: The defining element of theft. Melb. UL Rev., 32, p.1030.\
Tamblyn, N., 2020. Reforming Theft: Taking Without Consent.
Wilson, W., 2008. Criminal law: doctrine and theory. Pearson Education.
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