R v Hinks

For the purposes of theft, acquiring an indefeasible title by a valid gift can amount to an appropriation of property belonging to another. Appropriation under sections 1(1) and 3(1) of the Theft Act 1968 is a neutral and objective description of assuming an owner’s rights. The owner’s consent does not prevent appropriation.

The prosecution need not prove that the owner retained a proprietary interest or a right to recover the property. Nor may “unlawfully” be inserted before “appropriates”. Consent and the circumstances of a gift may instead bear on the separate requirement of dishonesty. The mental elements of theft provide the principal protection against unjust convictions.

The appellant received substantial sums of money and a television from a man of limited intelligence. She maintained that they were valid gifts or, in part, a loan. A jury convicted her on five counts of theft after being directed that acquiring property by gift could amount to appropriation.

The Court of Appeal (Criminal Division) dismissed her appeal in [2000] 1 Cr. App. R. 1. It held that the validity of a gift was not determinative of appropriation and that consent was relevant to dishonesty.

The certified question was whether acquisition of an indefeasible title could amount to an appropriation of property belonging to another under section 1(1) of the Theft Act 1968.

1. Appeal dismissed by a majority of three to two. Lord Steyn delivered the leading speech. Lord Slynn and Lord Jauncey agreed with his reasons. Lord Hutton agreed on the certified question but would have allowed the appeal for misdirection on dishonesty. Lord Hobhouse dissented on both appropriation and the safety of the convictions.

2. Per Lord Steyn, the certified question was answered affirmatively. Sections 1(1) and 3(1) of the Theft Act 1968, as authoritatively interpreted in Reg v Lawrence [1972] AC 626 and Reg v Gomez [1993] AC 442, establish that appropriation may occur with the owner’s consent. The acquisition of an indefeasible gift is therefore capable of being an appropriation.

3. Appropriation is a neutral description of any assumption of an owner’s rights. It is immaterial that the donor transfers the entire proprietary interest. The prosecution need not show that the donor retained an interest or a right to resume or recover an interest. The statutory word cannot be read as though preceded by “unlawfully”.

4. The observation in Reg v Morris [1984] AC 320 that appropriation required adverse interference or usurpation was unnecessary to that decision, conflicted with Lawrence, and had been correctly rejected in Gomez. It wrongly conflated appropriation with dishonesty.

5. The possibility that the criminal law may classify as theft conduct which creates an indefeasible civil title did not justify departure from settled authority. Civil and criminal law serve different purposes. Dishonesty and the intention permanently to deprive provide adequate protection against injustice. Section 2(1)(a) may also protect a transferee who believes that the law entitles that person to retain the property.

6. Lord Steyn declined to determine whether fuller directions on dishonesty were required. The point had not been properly raised or fully argued, the House lacked the trial transcripts, and the convictions were safe on the evidence and the jury’s findings.

7. Lord Hutton would have held that a valid gift precluded dishonesty and that the jury required specific directions on capacity, undue influence or coercion. Lord Hobhouse would have construed sections 1 to 6 cohesively and held that accepting a valid gift could not constitute theft. Those views did not command a majority.

1. House of Lords: By a majority of three to two, dismissed the appeal and affirmed the convictions. The certified question was answered affirmatively.
2. Court of Appeal (Criminal Division): Dismissed the appeal in [2000] 1 Cr. App. R. 1. It held that a gift could amount to appropriation and upheld the direction on dishonesty.
3. Crown Court: The jury returned unanimous guilty verdicts on five counts of theft. Concurrent sentences of 18 months’ imprisonment were imposed.