03/03/2011 17:09:00

← Gardner – ‘Property & Theft’ Article – notes

←
← Whether a person who receives indefeasible title to property cannot
be guilty of theft of that property.
• Gomez following Lawrence v. MPC – that a person can be guilty
of theft notwithstanding that he or she obtained the property in
question with the consent of its owner.
• CA in Mazo – a person should nevertheless not be guilty of theft
if he or she receives an indefeasible title in the property in
question, for example as a fully valid gift. That view was doubted
by CA in Kendrick and Hopkins but commended by Prof. Sir John
Smith.
←
← Mazo was made gifts by od woman showing signs of mental
deterioration.
• Convicted of theft in respect of her acceptance of them.
o There can be no liability for theft in respect of a valid gift.
o Mazon’s liability depended upon whether old lady’s mental
deterioration was so severe as to vitiate the gift.
← Mazo is not strong authority for the proposition that the receipt of a
valid gift cannot be theft for 2 reasons.
← 1) the point was conceded by the Crown rather than properly
argued.
← 2) judgment does not consider that gift may be vitiated unde
different reasons e.g. undue influence or unconsciounability.
←
← Kendrick and Hopkins – conspiracy to steal.
← It is implicit that CA did not accept proposition derived from Mazon.
←
← Question – does the Mazo proposition fit well with what we
otherwise know about the offence of theft?
• 2 elements
o Appropriation and Dishonesty
←
← Appropriation
← Perhaps the conceptual basis for the proposition that acquisition of
an indefeasible title cannot be theft comes from approach that such a
transaction cannot amount to an appropriation.
• Prof Sir John Smith takes this view.
←
← Leading authority on the meaning of appropriation is the UKHL
decision in Gomez. Is Mazo reconcilable with that?
←
← Does Gomez say anything about what happens when A gains an
indefeasible title to property?
← Seems to uggest Gomez decided that oconsent is wholly irrelevant
to appropriation. Lord Keith expresses himself as following Lawrence and
identifiues this view as the ratio of that case. Lord Dilhorne identified at
any rae one consideration behind this view as being that “Parliament by
the omission of these words [‘without the consent of the owners’] has
relieved the posection of the burden of establishing that the taking was
without the owner’s consent.”
←
← On this view it is the ratio of Gomez that the acquisition of an
indefeasbible as well as voidable or no title to property is an
appropriation.
←
← Dishonesty
← It might be said that a person who obtains indefeasible title to the
property in question cannot be guilty of stealing it because such a person
does not, be definition, act dishonestly.
←
← Authoritive reading of dishonest established by CA in Ghosh.
• 2 part test
← 1)
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