The study, published in Criminal Law Review, raises concerns about the counter-intuitive consequences of the current law.

Theft law needs reform to reduce the risk of judgements which lack “common sense”, new study warns

Theft law needs reform so the crime is based on consent not dishonesty – reducing the risk of judgements which lack “common sense” – a new study warns.

At the moment technically “putting a can of beans into a shopping basket is acting like a thief”, the study warns.

The current law, from 1968, has long-been criticised for being unsuitable because it requires proof property was taken dishonesty, and someone can be guilty of theft even if the victim has not lost their property.

The study says a solution would be to base theft law purely on consent, for it to be “a serious, intentional or reckless interference with another’s property without consent”. This more closely aligns with the core wrong of theft, and is easier to understand for police, prosecutors and juries trying to decide if someone is guilty of theft.

The study, published in Criminal Law Review, raises concerns about the counter-intuitive consequences of the current law. Currently changing labels on supermarket goods, or taking more money than is due from a proffered wallet, or buying with a forged cheque would be classed as theft.

The new definition, proposed as part of a study by Dr Nathan Tamblyn from the University of Exeter Law School, suggests theft should be taking and keeping, when currently something as trivial as touching can suffice. This would make the law more explicit that borrowing can be theft.

Under the current law a person is guilty of theft if they “dishonestly appropriate property belonging to another with the intention of permanently depriving the other of it”. Someone can be guilty of theft even if the property never leaves the owners possession, for example if someone tries to sell something belonging to another person.

Current theft law can cover actions which are ordinary and acceptable. For example, picking up a can of beans from a supermarket shelf to put in a shopping basket technically constitutes an appropriation of property belonging to another with an intention of permanently depriving the supermarket.

Professor Tamblyn said: “The law regarding theft needs reform because it is producing strange results. Partly the problems stem from the fact that the current definition of theft involves an “appropriation” of property, which can be as trivial as merely touching property. Instead, I suggest that theft should be reserved for serious interference with property, like taking and keeping.

“Partly the problems stem from the fact that so much of the work done in defining theft turns upon the need for a person to act dishonestly.

“The courts have struggled to find a helpful explanation of what it means to act dishonestly, advancing different tests over the years. The most recent test is still unhelpfully circular, in effect defining dishonest behaviour as whatever an ordinary decent, honest person would think is dishonest.

“That approach can fail to provide much guidance in advance as to whether contemplated behaviour is dishonest or not. It is unfair to convict a person for behaviour which they could not tell in advance was dishonest. It also means that the law fails to discourage such behaviour, for lack of any clear advance prohibition.”

Dr Tamblyn’s definition is more similar to that of other offences. It is a crime to damage another’s property intentionally or recklessly or commit violence intentionally or recklessly.

The current law is based on a statute which could be replaced. Courts could also revisit their interpretation of that statute, to construe “appropriation” as involving serious interferences with property, and “dishonestly” as meaning without belief that the owner consents.

Date: 13 July 2020

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