Introduction
Appropriation is a central element of the actus reus of theft, as defined in section 1 of the Theft Act 1968. Section 3(1) of the Act provides a seemingly straightforward definition, stating that appropriation is "any assumption by a person of the rights of an owner". However, the judicial interpretation of this term has been one of the most debated areas of theft law. The courts have progressively widened the meaning of appropriation to a point where it can include actions that the property owner has consented to, and even actions that result in the defendant acquiring a valid civil law title to the property. This essay will examine the evolution of the concept of appropriation, focusing on the key decisions in R v Morris, Lawrence v Commissioner of Police for the Metropolis, R v Gomez, and R v Hinks. It will be argued that while the current broad interpretation offers prosecutors a wide net to catch dishonest behaviour, it has stretched the concept of appropriation to its logical limit, creating an uncomfortable overlap with fraud offences and placing excessive weight on the mens rea element of dishonesty to establish criminal liability.
The Statutory Framework and Initial Uncertainty
The Theft Act 1968 was intended to modernise and simplify the law of theft. Section 1(1) defines theft as the dishonest appropriation of property belonging to another with the intention of permanently depriving the other of it. The key actus reus elements are appropriation, property, and belonging to another. Section 3(1) elaborates on appropriation, stating it includes any assumption of the rights of an owner, and also covers situations where a defendant comes by property innocently but later assumes a right to it by keeping or dealing with it as an owner.
Initially, it was thought that an appropriation had to be an act that was in some way unauthorised or against the owner’s wishes. This interpretation was advanced in R v Morris [1984] AC 320, where the defendant switched the price labels on goods in a supermarket. The House of Lords held that the appropriation occurred when the labels were switched. Lord Roskill stated that appropriation involved an act which "adversely interfered with or usurped" the rights of the owner. This suggests that an act consented to by the owner could not be an appropriation, as it would not be an 'adverse' interference. This interpretation seems to align with a common-sense understanding of stealing. However, this view was not to last.
The Broadening of Appropriation: Consent and Deception
The decision in Lawrence v Commissioner of Police for the Metropolis [1972] AC 626 provided a conflicting interpretation. In this case, an Italian student who spoke little English showed his open wallet to a taxi driver, indicating that the driver should take the correct fare. The driver took significantly more money than was due. The driver argued that he had not appropriated the money because the student had consented to him taking it. The House of Lords disagreed, holding that an appropriation could occur even with the owner's consent. Viscount Dilhorne stated that he saw "no ground for concluding that the omission of the words 'without the consent of the owner' was inadvertent", meaning Parliament had intentionally defined appropriation broadly without requiring a lack of consent.
This created a direct conflict between the approaches in Morris (requiring adverse interference) and Lawrence (consent is irrelevant). This conflict was decisively resolved by the House of Lords in R v Gomez [1993] AC 442. The defendant, a shop assistant, convinced his manager to supply goods to a third party in exchange for cheques that the defendant knew were stolen and worthless. The manager authorised the transaction based on the defendant's deception. The House of Lords, following Lawrence, held that an appropriation had taken place. Lord Keith, giving the leading speech, confirmed that an act expressly or impliedly authorised by the owner could amount to an appropriation. The 'adverse interference' concept from Morris was effectively rejected.
The effect of Gomez was to establish that appropriation is a neutral act. It simply means assuming any right of an owner, such as touching, moving, selling, or destroying the property. Whether the owner consented is not the determining factor. This significantly widened the scope of theft, meaning that many cases which previously would have been prosecuted as obtaining property by deception (under the now-repealed Theft Act 1978) could be charged as simple theft. The critical question in such cases shifted from the nature of the act itself to the defendant's state of mind: were they dishonest?
The High-Water Mark: Gifts and the Civil Law Conflict
The expansive interpretation of appropriation reached its most controversial point in R v Hinks [2001] 2 AC 241. The defendant, a young woman, befriended an older man of limited intelligence. Over several months, he withdrew approximately £60,000 from his building society account and deposited it into her account. The prosecution argued this was theft. The defence argued that the transfers were valid gifts at civil law and therefore could not be considered an appropriation for the purposes of criminal law.
By a narrow 3-2 majority, the House of Lords dismissed her appeal. Lord Steyn, for the majority, held that an appropriation can occur even when the defendant acquires an indefeasible title to the property. In other words, a transfer of property that is a valid gift under civil law can still be an appropriation for the purposes of theft if it is done dishonestly. Lord Steyn argued that the decisions in Lawrence and Gomez compelled this conclusion and that separating the law of theft from the civil law of property was not a problem. The central issue, once again, was dishonesty.
This decision has been subject to considerable academic criticism (see, for example, Smith, 2001). The main objection, as articulated by the dissenting judge Lord Hutton, is the creation of a clear disconnect between criminal and civil law. It seems highly problematic that a person can be found guilty of stealing property which, in the eyes of the civil law, is validly theirs. This blurs the line between criminality and what might simply be seen as immoral but legal behaviour, such as persuading a naive person to give you gifts.
Evaluation: A Pragmatic but Problematic Doctrine
The current law on appropriation is now settled: any assumption of an owner's right, with or without consent, constitutes an appropriation. The main advantage of this approach is its breadth. It allows prosecutors to secure convictions for a wide range of dishonest conduct without getting bogged down in technical arguments about whether the victim 'consented' or whether there was a 'deception' sufficient for a fraud charge. It simplifies the prosecution's task by focusing almost entirely on proving dishonesty.
However, this simplicity comes at a cost. Firstly, it creates a significant overlap between the offence of theft and fraud offences (now under the Fraud Act 2006). A person who deceives another into handing over property can be charged with either theft (on the basis of a dishonest appropriation) or fraud by false representation. While this offers prosecutorial discretion, it undermines the principle that different offences should target distinct forms of wrongdoing.
Secondly, and more fundamentally, the broad interpretation of appropriation places an enormous burden on the concept of dishonesty. Since almost any interaction with another's property can be an appropriation, the entire question of guilt or innocence often hinges on the jury's finding as to the defendant's state of mind. The legal test for dishonesty, now settled by the Supreme Court in Ivey v Genting Casinos [2017] UKSC 67, is an objective one, but its application in cases like Hinks can be difficult. It asks juries to impose criminal liability on individuals for receiving valid gifts, essentially policing the morality of transactions.
Conclusion
The journey of the legal definition of appropriation from Morris to Hinks shows a clear judicial trend towards prioritising the conviction of dishonest individuals over maintaining strict doctrinal coherence. The meaning of appropriation has been expanded to a point where it is a concept of "neutrality and of minimal practical significance" (Ormerod and Laird, 2021, p.796), serving merely as a gateway to the crucial question of dishonesty. While this broad scope provides a practical tool for prosecutors, it has created a law of theft that is arguably over-extended. The conflict with civil law principles, particularly following Hinks, remains a significant point of intellectual tension. The law may be settled, but the satisfaction that it provides a clear and principled basis for distinguishing criminal theft from other forms of dishonest or exploitative behaviour is questionable. The law on appropriation works, but it does so by sacrificing conceptual clarity for prosecutorial convenience.
References
Cases
- Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67
- Lawrence v Commissioner of Police for the Metropolis [1972] AC 626
- R v Gomez [1993] AC 442
- R v Hinks [2001] 2 AC 241
- R v Morris [1984] AC 320
Legislation
- Fraud Act 2006
- Theft Act 1968
- Theft Act 1978
Secondary Sources
- Ormerod, D. and Laird, K. (2021) Smith, Hogan, and Ormerod's Criminal Law. 16th edn. Oxford University Press.
- Smith, J.C. (2001) 'Theft and "Theft"'. Criminal Law Review, [2001] Crim LR 564.
