rootin’ tootin’ mootin’ !

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ImageI apologise for my absence from this blog lately. So much is happening right now. In addition to the masters, I’ve had two rounds of mooting to contend with, plus a mock scholarship interview (to help prepare me for the real thing at Middle Temple shortly), and I’ve been researching my chosen sets for pupillage applications. It’s not all drudgery, though…

I am delighted to report that, as well as holding the UKELA Junior Mooting Shield (a national prize), I now hold the Birmingham Postgraduate Mooting Cup, too! This award could not have come at a better time. It will surely help to strengthen my pupillage applications by proving that I have a knack for advocacy – bearing in mind that I have not yet been to Bar School.

This year’s moot problem was a fairly easy one to grasp, so thought I’d use this post as a chance to share my winning approach with readers. The problem concerned the crime of theft. Specifically:  Can a person who receives a valid gift be held, under the Theft Act, to have “appropriated” the property involved? Or, putting it more plainly:  If you sit back and accept a valid gift from someone, have you committed the actus reus element of theft?

On first glance, you might be forgiven for thinking:  “Of course not! If a person makes a valid gift to me (meaning that person acts freely, with all their marbles) then I have done nothing physically wrong. I have not robbed, tricked or deceived the other into parting with their property.” And yet, in the case of Hinks (2000), the Law Lords held that accepting a valid gift can indeed count as the first step on the road to a conviction for theft. In Hinks, a woman accepted a large sum of money from a vulnerable (but not mentally incapable) man whom she was entrusted to care for. Thus, Hinks set a precedent whereby even accepting presents can count as “appropriating” property. Of course, appropriation on its own is not enough. To be found guilty of theft, a jury or magistrates must be satisfied that you appropriated property dishonestly. But with everything now counting as an appropriation, it is worrying to think that, with a good prosecuting advocate in court, any dealing with property might be made to appear dishonest.

This was the dilemma facing my fictitious client in last week’s moot. My client, Professor Smart, was an eminent archaeologist who visited Mrs Jury, a collector of royal artefacts. The professor used his charm to persuade Mrs Jury, an elderly widow, to make a gift to him of the recovered finger bone of a former king of England, King Ricky III (who invents these names?!). The professor intended to display this item in his museum for all to look at. Mrs Jury was happy to oblige. She handed the item to the professor for him to take “as a present.” But the next day, she changed her mind and reported the incident to police, claiming to have parted with the artefact during a “moment of madness.” This led to the professor’s arrest and conviction for theft, which he appealed to the Supreme Court with the help of a budding young barrister… Yours Truly.

It was clear to me that Hinks is a major weight that would need to be lifted if my client was to stand a chance. I thus began by arguing that Hinks itself is bad law.

The 1968 Theft Act did not result from debates in Parliament;  it was envisaged by the Criminal Law Revision Committee in its 8th Report, which was presented to Parliament for consideration along with a draft Bill. Parliament surely liked this Bill, for it was soon enacted into law. Hence, to ascertain the true meaning of the word “appropriation”, it seemed logical to discover what the Committee’s report had to say. The Committee had stated that “appropriation” was to have the same meaning as “conversion” – a tort, or civil wrong, committed whenever a person deliberately usurps an owner’s right to dominion or control over their property. An owner might sue for conversion if another person offers their property for sale (or sells it) without consent, or physically removes their property without consent, or destroys it, etc. I argued that, clearly, accepting a valid gift does not belong in the same category as offences such as these. None of an owner’s rights are usurped if passed voluntarily to another as a valid, unconditional gift. I thus argued that the meaning of “appropriation” stated by the Committee should be treated as the one which Parliament intended – a view shared by Lord Lowry in his Gomez dissent. If there is no tortious conversion, there is no criminal appropriation.

My next attack on the Hinks precedent came from human rights law.

I argued that the development made to the law by Hinks violates the Article 7 guarantee of freedom from arbitrary prosecution. In other words, not being sure if accepting a gift could lead to you being prosecuted is repugnant to the Rule of Law. In the famous “rape in marriage” case, the European Court of Human Rights held that judges are allowed to develop criminal offences via judicial interpretation, provided (1) that developments are consistent with the essence of the offence, and (2) that developments are reasonably foreseeable.

I argued, firstly, that the Hinks development is not consistent with the essence of the offence of theft because it is less about protecting property rights from usurpation, and more about protecting vulnerable persons from exploitation at the hands of the unscrupulous. Yet, in 2006, Parliament created a new criminal offence for just this purpose, termed:  Fraud by Abuse of Position. What reason could there be for this, except that Parliament never intended theft to be resorted to as the means of punishing those who exploit the goodness of others?

I argued, secondly, that the Hinks development was not reasonably foreseeable because it stands in diametric opposition to the civil law of gift. Indeed, if Miss Hinks had sought advice from a solicitor prior to accepting gifts from the vulnerable man in that case, a solicitor would surely have said that it would be “most surprising” to find that an activity which is perfectly legitimate under civil law could, at the same time, form the basis of criminal liability. I submitted that a solicitor’s “most surprising” would hardly accord with a court’s “reasonably foreseeable.”

By this stage, judicial interventions had taken their toll. My time was running short. I thus invited Their Lordships to overrule Hinks, then I moved swiftly to the alternative strand of my argument:  that Hinks can be distinguished from the facts of the instant case since no special relationship existed between Professor Smart and Mrs Jury, unlike the relationship of carer and cared-for that existed in Hinks. I suggested that something like a fiduciary duty might even be said to have existed in Hinks, which would have had the effect in law of rendering gifts invalid, since it is arguably unethical for carers to profit from their trusted position. Therefore, if no valid gift was made in Hinks, that might account for how the defendant had, in fact, usurped the owner’s rights – thereby “appropriating” his property in the eyes of the law. And this would justify disapplying Hinks as against my client.

Their Lordships took time for consideration, then ruled that I had won on the advocacy (which is the main thing in a moot), but, perhaps unsurprisingly, not on the law. It was held that “appropriation” is a neutral, objective term;  it simply describes a thing that has happened;  it requires no behaviour as such from the person who is said to have appropriated. Thus, Hinks would not be overruled (even in a moot court), nor would the weight of that case be lifted from the facts of the instant one.

The professor’s conviction for theft would stand.

In my view, having the law against you is great in a moot because it compels an advocate to fight hard for their “client.” But one day soon, when the clients become real, we must take care never to understate the force of judicial precedent in any of the cases we handle.

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