Finders, keepers

Find a penny,
Pick it up,
And all day,
You'll have a penny.
           -- Anon
You could also have, in principle, a prosecution for theft, contrary to Section 1(1) of the Theft Act (1968). Of course, you won't really be prosecuted, but it remains theoretically the case that this action could constitute theft.
      In fact, the issue whether or not a person is entitled to keep things found laying around raises some extremely complex, and technical, points of law. Even now, nearly 40 years after the Theft Act was supposed to simplify and stabilise the whole law of theft, the simple issue of finding a penny raises questions that have no straightforward answers.
      This article discusses some of the reasons for thinking that picking up a penny in the street may, or may not, amount to theft. Using a penny as an example reinforces the notion that, theoretically, the scale of the alleged theft is of no importance to the decision whether you are guilty or innocent.

Let's start with what `theft' is, or at least what UK statute law says it is. From s.1 of the 1968 Act we find:

``A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it''
Sounds simple enough? Well, no, actually. Let's start with what `dishonestly' means.

Dishonesty

You've probably got a fair idea of what `dishonesty' is; most people have. You may think that your idea of dishonesty is not all that different from most other peoples'. In the majority of cases, this will probably be true. If you asked 100 people whether it was dishonest to take money out of another person's pocket, probably 99 people would say `yes'. The one person who would say `no' or `maybe' would be either be a habitual crook or a lawyer (see later for why). But there are cases, and these are the ones that end up in the Court of Appeal, where the issue is not clear cut at all. Let's see what the Theft Act has to say about dishonesty. In fact, it doesn't attempt to define dishonesty at all, but simply gives (in s.2) examples of behaviour that is not to be regarded as dishonest. A person is not dishonest if he:
``(a)...appropriates the property in the belief that he has in law the right to deprive the other of it;''
or
``(b)...appropriates the property in the belief that he would have the other's consent if the other knew of the appropriation and the circumstances of it;''
or
``(c)...appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.''
This does not mean that any other act of `appropriation' will not be dishonest; the Act only gives examples of actions that are not dishonest. If the facts of the case are not covered by one of these three exceptions, then it falls to the court to decide whether you are dishonest. By `the court' I mean the judge and jury in a serious case, or the magistrates otherwise.
      This brings us to the first problematic area: to what extent is a decision whether a person is dishonest a matter of fact rather than a matter of law? In a jury trial, it is the traditionally the job of the judge to rule on matters of law, and the job of the jury to rule on matters of fact. Whether a person is dishonest is believed by some commentators to be a natural `jury question'. Dishonesty, they argue, can be determined by comparing the defendant's actions with those of ordinary, decent members of the community. They community is represented by the jury. So long as the question of the defendant's dishonesty does not fall within one of the legal exceptions in s.2 of the Theft Act, the judge should leave the jury alone to come to a decision. This, in effect, was the decision of the Court of Appeal in R v Feely (1972). It was held that `dishonesty' was not a technical, legal term, but a word in everyday use. A jury could, and should, apply the standards of ordinary decent people. They did not, said Lawton LJ, need a judge to tell them what it means to be dishonest.
      The problem with this approach, it is argued, is that a jury consists of at most twelve people, and a bench of magistrates only two. This is a very small cross-section of `the community'. The likelihood is that standards of honesty will vary from one jury or bench to another. An opponent of the `leave it to the jury' view might argue that it is the job of the jury to decide what facts to believe. Allowing the jury to rule on questions of dishonesty gives them what amounts to a legislative function. Writing in 1966, Sir Brian McKenna said
``...it is surely better that these questions should be decided not by juries but by Parliament.''
So, allowing the jury to apply the standards of the community to the defendant has the effect that these purported standards may vary from case to case. But this is not the only problem. It has long been assumed that some moral condemnation should apply to an act that leads to a criminal conviction; society should not punish acts that are not blameworthy. In the law of assault, for example, the jury must be sure that the defendant foresaw that his or her actions could lead to harm. They jury aren't asked to decide whether they would have foreseen harm, or whether the defendant ought to have foreseen it. To convict, the jury must be satisfied with nothing less than that the defendant himself realised that his actions could harm the victim.
      Can this subjectivist principle be applied to theft? Well, it can, but suggestions by the courts that it might be proper to do so have met with a barrage of criticism, mostly from academics. In R v Gilks (1972) there was a hint of a suggestion that if a person genuinely believes that it is not dishonest to take money given to him mistakenly by a bookmaker, then he is not dishonest. In Boggeln v Williams (1978) (which concerned a man who reconnected his electricity meter after it had been disconnected by the supply company for non-payment of bills) the court held that the defendant's beliefs as to his honesty were crucial to the decision whether he was honest or not.
      The problem is that if dishonesty becomes wholly subjective, it allows a defendant to raise the `Robin Hood defence'. That is, a person could claim that his thefts satisfied some wider social purpose - e.g., the redistribution of wealth - and he was therefore not dishonest. That such a defence might be embraced by English law is discomforting, both to academics and the courts. The approach to dishonesty that was perceived to be taken in cases like Gilks and Boggeln was condemned by leading academics such as Professors Elliott, Glanville Williams, Griew, and Smith. These authors have repeatedly and forcefully asserted that, in the law of property, it is the job of the law, not the jury, to set standards of behaviour. It is the job of the jury, they contend, to determine whether the facts of the case are in accordance with these standards.
      In fact, it is far from clear that the decisions in Gilks and Boggeln really supported a subjectivist view of dishonesty. In both cases, the courts stressed that it was the job of the jury to apply its own standards to the conduct of the defendant. What the courts seem to be coming to in these cases, which finally crystallised into a workable form in R v Ghosh (1982), is that dishonesty involves both a subjective and an objective, standards-based element. The facts of Ghosh are not particularly important for the present purposes; what is important is the `dishonesty test' proposed by Lord Lane CJ. According to the `Ghosh test', a person is not dishonest if either (i) his actions were in accordance with the standards of ordinary people, or (ii) he genuinely believed that they were.
      On the whole, academics seem no more happy with Ghosh than with Feely, since it continues to appeal to the standards of the jury. However, it is notable that in this test the defendant's state of mind is not determinative of the matter of his dishonesty. What is determinative is the defendant's belief that he was acting in accordance with ordinary standards.
      If dishonesty is not a question of fact for the jury, then it must be a question of law. But which law? Can we define in a rigorous way which acts are dishonest and which are not? Perhaps we don't have to; Glanville Williams has written that ``we can at least be certain that almost any definition making the position independent of current social attitudes would be better than the rule in Ghosh''. But why would it? There doesn't seem to be any clear agreement among the academic experts on what dishonest should entail, and the Ghosh test is at least simple to understand.
      Ultimately the objection to allowing the jury to rule on whether an act is dishonest rests on the belief that there can be certainty in what constitutes a blameworthy act. If one takes the view, strongly espoused by HLA Hart, that one can define blameworthy behaviour in terms of the harm caused to individuals, then this certainty may perhaps be achievable. On the other hand, if you argue, along with Lord Devlin, that law is simply a codification of the moral beliefs of society, then there will always be borderline cases where facts must be measured against these moral beliefs.
      Whatever the merits of these opposed positions, the Ghosh test remains the most authoritative statement of dishonesty that we presently have.
      This brings us at last to our hypothetical case. If you find a sum of money laying in the street, and you keep it, are you dishonest? The position seems to be as follows. What of the Robin Hood defence? According to the test in Ghosh, Robin Hood would not be dishonest if he genuinely believed that his actions would be considered honest by ordinary, decent people.

Property belonging to another

If the jury or magistrates decide that you have not acted dishonestly, the prosecution fails. Dishonesty is a sine qua non for making out the offence of theft. However, although dishonesty is necessary for theft, it is not sufficient; English law on the whole does not seek to punish a person for having bad thoughts, but for doing bad deeds under the influence of bad thoughts. We must now decide whether you have done a bad deed. For theft, the bad deed is defined to be `appropriation of property belonging to another'. We will deal with the vexed question of appropriation later. For now, it is far from clear that when you pick up dropped money, you are picking up `property belonging to another'.
      In most cases we don't think too carefully about what it means to `own' something. I own the clothes on my back because I paid their previous owner - the retailer - some money. But what about the time between when I paid the money over the counter, but before I got the goods? Who owned what in that time? Strictly speaking, when I paid the money, I was acting in accordance with a contract that was established when I took the clothes to the sales counter and the cashier said `That will be £50 please', or whatever the amount was (Royal Pharmaceutical Society v Boots (1952)). When I handed the money to the cashier, it became his property. I exchanged the money for a contractual right to take possesion of the goods.
      The notion of `property belonging to another' is really a civil law matter, not a criminal law matter (but more of this later). The concepts of `property' and `title' are actually quite complex, and the law that governs them has developed piecemeal over the last six hundred years or so. In civil law, if you find money laying on the ground, you don't have a contractual obligation, strictly construed, to do anything with it. However, the person who dropped it has a stronger claim to it than you have. It may also be the case that the person who owns the land it falls on has a stronger claim to it than you do, although this is not entirely clear (see Parker v British Airways Board (1981), for example, which concerns whether the owner of an airport departure lounge had the right to take possession of a gold necklace that a customer had found on the floor). These obligations are sometimes called `quasi contractual', or `restitutionary'. There is no contract between the person who dropped the money and the person who found it, but the person who found it does owe an obligation to render it up to the original owner if requested to do so.
      So, is money laying in the street `property belonging to another' for the purposes of the Theft Act? It is certainly property (s.4 says so). s.5(4) says:
``Where a person gets property by another's mistake, and is under an obligation to make restoration ... the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration...''
It is probably reasonable to believe that a person who drops money by accident has made a mistake for the purposes of this section, but a person who wilfully discards money in the street (if only...) is - I assume - not entitled to restoration, as he has divested his entire proprietary interest.
      So where does that leave us? It appears that money found in the street could be `property belonging to another' if it came there by a mistake, rather than intentionally.

Appropriation

We have established that a person who finds money and keeps it must be shown to be dishonest, and that is fundamentally a question of fact for the jury or magistrates. We have also established that lost money (even a penny) could be `property belonging to another'. We must now decide whether the finder has `appropriated' it or not. The Theft Act itself is not particularly illuminating; by s.3(1):
``Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.''
Any assumption by a person of the rights of an owner amounts to an appropriation. It is also clear that you can get property innocently, then be held to `appropriate' it by your subsequent course of action.
      The question at issue here is whether `appropriation' - of itself - implies some moral opprobrium, or whether it is a neutral term. In the phrase ``assumption of the rights on an owner'', the word `assumption' seems to imply a measure of disapproval. However, the courts have consistently held that the `moral factor' in theft is dishonesty, and that appropriation need not be a `bad thing'.
      The scene for this decision was originally set by the decision of the House of Lords in Lawrence v MPC (1972). In this case, a taxi driver charged a foreign student - new to the UK and not particular fluent in English - an extravagant fare: nearly twenty times the correct price. Mr Lawrence did not threaten his passenger with violence, or even practice an active deception. The passenger simply handed Mr Lawrence his wallet, and told him to take the correct amount. It could be said that he had taken advantage of his passenger's carelessness. The question at issue was whether Lawrence had `appropriated' the money, or merely taken it. In civil law, Lawrence was `unjustly enriched' at the expense of the passenger, giving rise to a quasi-contractual obligation to repay the money. But did it make a crime? The House held that it did: the word `appropriates' implied no state of mind; it was morally neutral. This decision was reviewed, and upheld, in R v Gomez (1993) In this case, a shop worker persuaded a shop owner to accept cheques from his friends in payment for goods, when he knew the cheques would not be honoured. Gomez argued that he did not appropriate the goods, and could not be held to have stolen them, because they were removed with the consent of the owner. The House of Lords ruled that there was appropriation, and therefore theft, because appropriation itself was not blameworthy. To say that someone appropriates something is an entirely neutral term.
      The decisions in Lawrence and Gomez had the effect that people who had done bad deeds did not escape their just deserts on a technicality. However, the establishment of these decisions as a precedent has led to a number of odd consequences. These arise because, once we have decided that appropriation is a neutral act, and can take place with the full consent of the original owner of the property, it becomes possible to get cases where the criminal law is completely out of kilter with the civil law of property. The most troublesome cases of this sort are the so-called `gift' cases.
      In R v Mazo (1996)), a domestic servant persuaded her elderly and infirm employer to make gifts with a total value of £37,000. Mazo did not deceive her employer into making the gifts; she persuaded her. Had Mazo used deception, this would have given rise to an offence under s.15 of the Theft Act. Clearly Mazo exploited the good nature and trust of her employer, but she practised no deception or, we assume, duress. Is this a crime? The Court of Appeal held that, if Mazo had genuinely accepted a valid gift, then there would have been no appropriation of `property belonging to another'. Under civil law, a person who makes a gift divests himself of any proprietary rights to the property gifted. So by the time that Mazo `appropriated' the money, it actually belonged to her. Mazo was acquitted because, in effect, this situation was not adequately explained to the jury. This approach did not commend itself to the courts in the later cases of R v Kendrick and Hopkins (1997) and R v Hinks (2000). In Kendrick the managers or a residential nursing home were made gifts of money by one of their residents. In Hinks a woman persuaded a naive and trusting man of, perhaps, less than outstanding intellect, to make over to her his entire life savings. There is no doubt that these cases involve exploitation; what is at issue is whether they involve theft. In both cases, the courts held that there was an appropriation of property belonging to another, and that the defendants were rightly convicted of theft.
      It is almost impossible to reconcile these cases with principles of civil law. In civil law, a person who receives a gift may appropriate, but he is appropriating something that belongs to himself, not to another. The view of the House of Lords in Hinks was that, in a criminal trial of theft, the courts should not have to be concerned with the complex technicalities of the civil law of property. This is strange, when theft is a crime against property, and intimately tied up with the law of property
      This was pointed out by Lord Hobhouse, in the minority in Hinks; he also pointed out that, even if the property had `belonged to another' when it was appropriated, in spite of six hundred years of development of the civil law, the defendants should still not have been convicted. S.2(1)(b) of the 1968 Act says that the defendant cannot be regarded as dishonest if
``...he appropriates the property in the belief that he would have the other's consent if the other knew of the appropriation and the circumstances of it;''
and there was little doubt that the victims of exploitation in the `gift' cases did give valid consent. The consequences of decision in Hinks are quite far reaching. Most strikingly, perhaps, is that the person who has `stolen' the property remains entitled to it in civil law. If the police, for example, restore it to the original owner, then they may be liable in tort. The `thief' should be able to mount a civil action against the `victim' and reclaim the goods. This follows from straightforward principles of property law. It remains to be seen how the courts will deal with this problem if it ever arises. In addition, every time you receive a gift, of anything, then it is only your state of mind that stops this being a theft. Suppose you receive a bonus from your employer on the basis that you sold, say, a larger number of golf-ball personaliser than anyone else in the firm this year. Suppose, further, that you knew that the champion golf-ball personaliser salesman was not you, but Fred, but you keep this to yourself. It appears that you are guilty of theft.
      So, turning back to our hypothetical case, do you `appropriate property belonging to another' if you pick up money lost in the street? It seems clear from Hinks that, even if you obtain absolute ownership in civil law, you can still have appropriated property belonging to another. And, in any event, you have not acquired absolute ownership unless the original owner of the money has divested his interest in it.
      There is, however, a light at the end of the tunnel, because by s.2(1)(c), a person is not to be regarded as dishonest if
``...he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.''
There is no definition of `reasonable steps', but it is very likely that a jury would hold it against you if you failed to take any action to find the original owner when you could easily have done so. Also, if the original owner does become know to you after you have taken the money, the fact that you have already spent it does not prevent there being a thief, because of s.3(1).

Intention to deprive permanently

For completeness, we should at least mention the final element of the offence, the `intention to deprive permanently'. This is also problematic in some cases, because it is not clear whether a person who borrows something, uses it up, and gives it back in a reduced state has `deprived permanently'. However, in the current case, if you find money and keep it, it won't be difficult for the prosecution to show that you had the requisite intention.

Summary

Having regard to all the factors above, what is the legal position of the person who finds lost money in the street, in respect of his liability for theft? This depends on whether the six elements of the offence can be made out.

Dishonesty: you are not dishonest, and therefore not guilty if:

Otherwise, you are dishonest.

Appropriates: Yes, even if the money were left in the street on purpose, or even if it were dropped for you to find (Hinks).

Property belonging to another: Yes, because by s.5(4) you are under a quasi-contractual obligation to make restoration of the money; the owner could enforce a restitutionary claim against you.

Intention to deprive permanently: Yes.

It should be clear that the distinction between guilt and innocence in this case is the question of your dishonesty, as it now is in most cases of theft.

©1994-2003 Kevin Boone, all rights reserved