Reforming Theft: Taking without Consent - Critical Response

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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