The Concept of Appropriation and The Offence of Theft

Author: Melissaris, Emmanuel

Source: Modern Law Review, Volume 70, Number 4, July 2007 , pp. 581-597(17)

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Abstract:

The English law of theft is confusing and problematic in principle. Since the introduction of the Theft Act 1968 there has been inconsistency in the interpretation of appropriation as court and commentators have grappled with the intuition that appropriation must entail some subjective element and cannot be purely objective. Although subjectivity is traditionally associated with culpability rather than with conduct, it is argued that some acts can be subjective and yet factual and stand as causes to effects. Appropriation is such an act, its necessary and sufficient condition being a mindset, here termed proprietary subjectivity, on the part of the actor. It is argued that clarification of the concept of appropriation can help to resolve misperceived problems. Such clarification will also reveal other problems in the law of theft. Some tentative comments de lege ferenda are made suggesting how these problems can be addressed.

Keywords: Theft; appropriation; offences against property; criminal law; philosophy of action; though-acts; proprietary subjectivity

Document Type: Research article

DOI: http://dx.doi.org/10.1111/j.1468-2230.2007.00653.x

Affiliations: 1: *Law Department, London School of Economics

Publication date: 2007-07-01