2.2.1 Theft – s.3 Appropriation

Definition (s.3 Theft Act 1968)

• s.3(1): “Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.”
• s.3(2): If property is transferred by sale in good faith for value, no appropriation occurs (buyer acquires good title).

Meaning of Appropriation

• Appropriation is the actus reus element of theft.
• It refers to any assumption of one or more of the rights of the owner.
• Owner’s rights = bundle of property rights:
  • Right to possess
  • Right to use
  • Right to lend, sell, destroy, or consume
  • Right to exclude others
• Assumption of any single right is enough; D does not need to assume all rights.

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course

Case Law Development

1. Assumption of rights

• R v Morris [1983] 3 WLR 697
  • Facts: D switched labels in a supermarket to pay lower price.
  • HL: Assumption of a single right (pricing goods) sufficient for appropriation.
  • Importance: Appropriation can be partial.

2. Consent of owner irrelevant

• R v Lawrence [1972] AC 626
  • Facts: Italian student gave taxi driver wallet, trusting him to take correct fare. Driver took far more.
  • HL: Appropriation even if owner consented, if dishonest.
• R v Gomez [1993] AC 442
  • Facts: Shop assistant persuaded manager to accept stolen cheques.
  • HL: Appropriation can occur even with consent obtained by deception.
  • Principle: Consent does not prevent appropriation.

3. Valid gifts can be appropriations

• R v Hinks [2000] 3 WLR 1590
  • Facts: D befriended man of limited intelligence; he voluntarily gave her money/gifts.
  • HL: Even a valid gift in civil law can be appropriation if dishonesty proven.
  • Importance: Appropriation is very broad — dishonesty is separate question.

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course

Continuing Appropriation

• Appropriation may occur at one point or may be a continuing act.
• R v Atakpu and Abrahams [1994] QB 69
  • Facts: Cars hired abroad with false licences; brought into UK.
  • CA: Appropriation occurs at time of assumption of rights (abroad); not continuing once in UK.
• Contrast: In some contexts, appropriation is treated as continuing so mens rea can coincide with actus reus.
• Links with Fagan v MPC principle of continuing acts.

Later Appropriation (s.3(1))

• If property originally obtained innocently, a later dishonest dealing can be appropriation.
• Example: D borrows neighbour’s lawnmower believing permission, later decides to keep it permanently → appropriation at later stage.
• Ensures dishonest appropriation is still covered even if property not initially stolen.

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course

Key Principles from Case Law

1. Assumption of any single right is enough – Morris.
2. Consent of owner irrelevant – Lawrence, Gomez.
3. Valid gift may still be appropriation – Hinks.
4. Appropriation not necessarily continuing – Atakpu.
5. Later assumption also counts – s.3(1).

Criticisms and Evaluation

• Breadth of definition: Appropriation now includes virtually any handling of property.
  • Lawrence, Gomez, Hinks show appropriation can occur even with owner’s consent.
• Civil vs Criminal law conflict: In civil law, gifts are valid; in criminal law, they may amount to appropriation (Hinks). Creates tension and uncertainty.
• Jury reliance on dishonesty: Courts stretched “appropriation” so far that most issues left to dishonesty.
• Academic criticism:
  • Glanville Williams: law “over-criminalises” consensual transactions.
  • Others: appropriation definition undermines certainty; too broad to guide conduct.
• Fairness concerns: Individuals may be criminalised despite genuine consent situations if dishonesty is later inferred.

Reform Proposals

• Law Commission (1993, 2002): Suggested clarifying definition of appropriation to limit to acts without true consent.
• Suggested harmonising civil and criminal law to avoid conflict (esp. gifts).
• Not implemented; law remains wide.

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course

Exam Application Strategy

1. Define appropriation (s.3).
2. Apply key cases:
   • Morris (assumption of rights)
   • Lawrence (consent irrelevant)
   • Gomez (deception with consent = appropriation)
   • Hinks (gift can be appropriation)
   • Atakpu (limits to continuing appropriation)
3. Apply to facts: Did D assume rights of owner (use, sell, keep, destroy)?
4. Link to dishonesty: Remember appropriation only part of theft; dishonesty decides liability.

Conclusion

• Appropriation = assumption of any of owner’s rights (s.3).
• Developed broadly by courts: consent irrelevant, gifts covered, later assumption included.
• Criticised for over-breadth, leaving too much to dishonesty.
• Current law reflects policy to maximise protection of property rights, even if it risks overlap with civil law principles.