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Published online by Cambridge University Press: 02 January 2018
The well-known disadvantages of having an undefined requirement of dishonesty in theft have caused some writers to propose that the requirement should be more precisely stated. Section 2(1) of the Theft Act 1968 specifies cases where the defendant is declared not to have been dishonest (belief in right, belief that onc would have the owner's consent, belief that the owner cannot be discovered), and an obvious way of clarifying the law would be to abolish thc general issue of dishonesty but to allow a defence in these specific cases (together with such other specific cases as might be determined).
The only difficulty in the way of this solution, as I see it, is to decide what is to be done about people who abstract money from a fund intending to repay, or intending and also being presently able to repay. In the past, opinions have been sharply divided between what may be called the orthodox and the lenient approach.
1. [1955] 1 QB660. CfSinclair u Ncighbour [1967] 2 QB279; Cockburn[1968] 1 WLR281, 1 All ER 466; Fynn [1970] Crim LR 118; Halstead u Patel [1972] 1 WLR 661, 2 All ER 147, 56 CAR 334; Rao [1972] Crim LR 451.
2. Cockburn, above n 1.
3. [1973] QB 530.
4. Before the Theft Act, J. T. Lowe wrote: ‘A jury finds it difficult to accept the proposition that a person who has secured no economic gain has acted dishoesty. This is notoriously so in cases where a person has deliberately used another's money and then replaces it. Has replacement, they argue, affords evidence that he was not dishonest although it. Has replacement, they argue, affords evidence that he was not dishonest although the plain fact is overlooked that in taking the money he has delifberately inveded the prosedutor's proprietary rights’: [1956] Crim LR 82.
5. See l above.
6. Salvo [1980] VR 407.
7. Pang Hei-Chung [1971] HKLR 80, Crim LR 440.
8. [1973] QB at 539f.
9. See n l above.
10. [1982] Crim LR at 410.
11. Law of Theft (5th edn), para 124.
12. For a somewhat similar case before magistrates, where the ‘fungible’ was hay, see Harbour in [1956] Crim LR 360. The facts would now be covered by s 2(1)(b).
13. For this reason the proposal does not except cases of deception, as the draft before the CLRC did. it is hard to imagine that a person in control of a fund would need to use deception to get at the fund, unless it were deception of a co-trustee, and in this case he could be charged with obtaining by deception under s 15(1), which contains no exception like s 2(1).
