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OFFENCES AGAINST PROPERTY Mens Rea in Theft - Dishonesty The concept of 'dishonesty' is nowhere defined in the TA 1968, despite the fact that it is an element that has to be proved beyond reasonable doubt by the prosecution. CLRC 8th Report felt that it was a word that could stand without a definition and which layman on a jury could easily recognise - an improvement on the old law of larceny which spoke of 'fraudulently' with the implication of legal technicalities. s.2(1) TA 1968 provides for 3 situations where the defendant's acts may not be dishonest: · where D has the belief that she/he has the right in law to deprive P of the property - that is, claim of right · where D has the belief that she/he would have P's consent if P knew of the circumstances · where D has the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

In each of these cases, it is the defendant's belief that matters - not whether there is in fact a right, consent or that P could not be found. The test is a subjective one of D's belief.

· The 'claim of right' defence is D's belief that there is a right in law, not a moral right - though that might exist under the expanded idea of dishonesty under Feely.

If P owes D money but refuses to pay so D puts gun to P's head, takes P's wallet and extracts the sum owing, this is not theft (nor robbery) if D does it in the belief that he has the right to the property. This is even though he knows it is illegal to use a gun in this way - it is D's belief in his/her right to the property that is the central question.

· D's beliefs under s.2(1) have to an extent been affected by s.3 TA 1968 - if D, having appropriated the property, discovers who the owner is or that the owner in fact does not consent or that D has no legal claim, then if D keeps the property dishonestly, then this will be theft under s.3 'any later assumption of a right to it...'. This doesn't apply if the property has been used up (money) but say the property was sold and D still has the purchase price...? s.2(2) TA 1968 declares that a person's appropriation of property may be dishonest notwithstanding that person's willingness to pay for the property.

This applies to the person taking a milk bottle from a doorstep and leaving 22p - but s.2(2) does not say that this will be theft, only that it may be. The leaving of the money does not as a matter of law negative dishonesty but it does provide evidence for the jury to decide that D was in fact not dishonest.

s.2 merely lists situations where D is not dishonest. Is there a residual meaning to 'dishonesty' over and above s.2? For example, where D takes money from P, intending to repay but knowing that P would have refused - is this dishonest? Under the old Larceny Acts, the question of whether a state of mind was dishonest or not was a matter of law for the judge. But there has been a fundamental change: Feely (1973) D was the manager of a betting shop who took £30 from the till for his own purposes - contrary to management instructions. He was owed money by his employers but also intended to pay the money back. The judge directed the jury in somewhat stark terms - if D took the money, he is guilty and if he did not take it, he is not guilty. It was irrelevant that D intended to pay it back - even if he had been a millionaire, it would be no defence. The CA held that this should not have been withdrawn from the jury in this fashion: · There is a residual defence of dishonesty - over and above the situations in s.2 TA 1968 · Dishonesty was a common English word and was thus a factual issue for the jury, not requiring definition by the judge · It was implied that the jury should decide on what is honest and what is not by using the 'common standards of ordinary decent people'.

What do we mean by the term 'honesty'? Glanville Williams (TBCL 726) considers that we use it (and mean it) in three senses: · Respect for property rights - not touching another's property without good cause? · Refraining from deception · Keeping promises It is the first of these that is important for the law of theft. Current standards of behaviour in respect to other people's property might diverge widely from this ideal goal of respect for property rights. Glanville Williams indeed quotes widely from sociological studies on occupational theft - it was reported that £30m had been pocketed by London Transport staff from fares in 1982. Such examples might be copied from directors in boardrooms to dustman.

Williams argues that there has been a deterioration in such moral standards and argues that the criminal law should be the 'standard of reference by which conduct can be judged'. (Holmes) Thus what constitutes honesty should be a matter of law for the judge as it was pre-1968 - Feely merely encourages the drift towards laxity in standards by allowing decent current standards rather than idealised notions of 'respect for property' which a judge would enforce.

Against Williams, one might be sceptical of harking back to a Golden Age when everyone was honest. Historical research on 18th and 19th centuries would cast doubt upon this. Even if it were true, there would be points to be made about the social determinants of such a change. Equally there is a further argument about the objectives of the criminal law in protecting private property rights - is there a real public interest in protecting such rights? But assuming that there is a role for the criminal law to play in protection of property, should we punish people for failing to live up to ideals of honesty which do not accord with current standards of behaviour? This would be the result of making honesty a question of law as Williams advocates. Idealised behaviours should be a matter for churches and not for courts. Thus Feely is right in leaving this issue to the jury - but how far should the jury be controlled in this? In your Carlen article (materials) there is a ticket collector on London Transport excusing/justifying himself 'Everybody does it'. Should we allow defendants who do not see themselves as blameworthy to be acquitted? Gilks (1972) D was overpaid by mistake by a bookmaker - accepted the money though he knew that he was not entitled to it. D gave evidence that he knew it would be dishonest to keep the money if he were given too much change by a grocer but bookmakers were fair game. The judge invited the jury to put themselves in the defendant's position and decide whether he thought that he was acting dishonestly or honestly. D was convicted and appealed on another point but CA thought this to be a 'proper and sufficient' direction.

Boggeln v. Williams (1978) D was charged under s.13 TA 1968 - abstracting electricity. D had failed to pay bill and had been disconnected. D told employee of Electricity Board that he intended to reconnect supply - he did this through the meter so it was apparent how much electricity had been used. Divisional Court expressly rejected an argument that D's belief in his own honesty was irrelevant, holding on the contrary that such a belief was crucial.

At this point then, the test of dishonesty appeared to be a wholly subjective one which looked very likely an examination of D's own system of values. It received support from Landy (1981) 1 AER 1172, a conspiracy to defraud case where it was stated that the dishonesty to be proved had to be in 'the minds and intentions of the defendants'.

There was one further development which can now be ignored in McIvor (1981) but the latest decision representing the current law and which is a move away from the sheer subjectivism of those earlier cases is: Ghosh (1982) D was a surgeon charged with obtaining by deception - he represented that he had carried out certain operations for the termination of pregnancy when they had been carried out by someone else. His defence was that these were sums that were legitimately payable and there was nothing dishonest about his behaviour. The grounds for appeal were that the judge directed the jury, not in terms of D's own assessment of his honesty or dishonesty, but in terms of 'contemporary standards of honesty and dishonesty.' Lane LCJ reviewed the history of dishonesty and arrival at a dual test: · Was what was done dishonest according to the ordinary standards of reasonable and honest people. If 'no', D is not guilty. If 'yes'...

· Did D realise that reasonable and honest people regard what he did as dishonest? if 'yes', D is guilty; if 'no', then he is not.

Lane considered that this was a move away from the subjectivism of Boggeln and the final nails in the coffin of the 'Robin Hood' defence. However a jury might well consider Robin Hood not dishonest or indeed Robin Hood might believe, mistakenly, that ordinary people would not regard him as dishonest.

Smith (Theft 5th ed. para 123) gives a more modern example of the activists from the Animal Protection League who 'rescue' beagles from a laboratory where they know they are being used for experiments. Could a jury be satisfied that D did not believe that all right-thinking people agreed with him/her? Through this, they might escape conviction. Smith goes on: But surely this should be theft. One who deliberately deprives another of his property should not be able to escape liability because of his disapproval, however profound and morally justified, of the lawful use to which that property was being put by its owner.

But is it the business of the criminal law to punish those whom ordinary people would regard as morally justified in their actions? Or those who believe that ordinary people would regard them as morally justified in their actions?