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Defences to theft: the menopause

By on Thursday 2nd April 2009 11:33 / 1 comment

 

I’m not going to be too heavy on Legal Leanings for the next week, as I am currently in the process of writing an assessment on the Sexual Offences Act 2003 and another on Parliamentary sovereignty.

However, I found this article quite interesting – looking at theft as I must for exam revision over the next month-and-a-half. Of all the defences to theft that there may be – and indeed with so much to prove in the area of theft there are surely many defences – Asmita Patel said the ‘only’ reason for her dishonesty was that she was going through the menopause.

Theft is defined as per the Theft Act 1968 s 1(1): ‘A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it’.

Such a definition provides five particulars which need to be proved (and bear in mind the burden of proof lies with the prosecution to demonstrate that they are facts, not the defence to demonstrate that they are not):

  1. The appropriation (taking) of the property;
  2. The taking was by the defendant;
  3. The property belonged to someone other than the defendant;
  4. The appropriation was dishonest; and
  5. The appropriation was intended to permanently deprive the owner of it.

If even one of the five particulars are not proved then no conviction of theft may be reached, as either the actus reus, the mens rea, or both has not been satisfied.

Going back the the original case of Asmita Patel, Judge Philip Statman (there’s that name again) said, on handing down a sentence of 12 weeks suspended for two years and costs of ?480:

When I came into court today I had in mind you would be going to prison immediately for 12 weeks. I have thought long and hard about how the public as a whole can best be protected and would react if I were to send you to prison. For this type of offence is extremely serious. There are those who remind me the prisons are overcrowded and you pose no real risk. Against that fact is others in a position of trust such as you must be deterred from committing offences of this kind.

This sentence was not enough for one of Patel’s victims, who told today’s News (p20): ‘I don’t think justice has been done. At the very least I expected her to go to prison’.

Ah, but such is the cruel and harsh reality of the British justice system in 2009.

 

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1 Comment

  1. Chris B. says:
    Thursday 20th August 2009 at 20:40

    The difference between the framework of defining something like ‘theft’ (as there is indeed a critera based framework for such things as noted) and finding definate unarguable points to fit the critera (for the purposes of the prosecution) are two entirely unique things.

    I did a basic framework study of law some years back (mostly at the level of principles and the basis of) when between jobs, and whilst i gained a huge insight that served me well when it came to interpretation of legal matters (not always as well as it should be mind, only human after all), it highlighted how much of a minefield it can be.

    Theft, as you note, is one area where it’s almost as much of a minefield to create arguments and absolute points of fact at times to meet the criteria in an argument proof fashion as it is to argue a point of law regarding contracts.

    The bit i hated, really, was the realisation that it’s hardly ever a case of establishing, presenting and ‘fighting’ on a level of right vs wrong in the case of the defense under law. The fight, really, is the bit where you spent inordinate amounts of time trying to bulletproof your case against intentional and very determined attempt to downplay what you present and discredit it.

    And a lot of the fight, from both parties and their representation, is just that really, discrediting and undermining the other’s presentation of fact (not always so clear cut, sometimes the ‘facts’ are just convenient but usable factors that add weight and strength).

    And it’s hardly suprising i guess, and tend to agree is unfortunate, that often the outcome (even when sucessful) for those who’s rights are being defended, find the guilty being almost just wrist-slapped.

    True, some of us will expect there to be absolution in the sense that maximum sentence of nothing is the only way to go – the difference being, some of us are realistic enough to realise that the whole distance will rapid use up resources that prevent the really worst of society’s criminals being able to actually serve full maximum sentences.

    Really there is no right or wrong answer to solving such things.

    But if there is one change that could benefit legal process no end, i think, is to reduce the ‘background circumstance’ and ‘psychological’ shelters that seem to moderate sentencing.

    I personally have no tolerence for a thief who steals from another, and zero tolerance for them getting a leniency on their sentence due to ‘deprived background robbing them of a sense of right and wrong due to having to survive’ and the implied moral sense of tolerence we are supposed to have to show humanity and sense that if you have not been brought up with a sense of right and wrong, then you are excused for life because of that lacking element of your evolution as a person.

    The action was the same, regardless of what society’s busybody protection self-interest groups try to do to finely tune and downgrade the action when it comes to speaking on behalf of the accused.

    As for the ‘psychological shelter’, the one that allows (in a similar line to ‘deprived background’) a person who cold-bloodedly kills someone (with competent intent, or with driven non-personal intent) to somehow be almost forgiven as far as being given the hard lesson that you can’t go doing such things.

    I don’t consider that a psychological factor such as multiple-personality disorders and suchlike actually change the fact of what’s happened, the victim is just as dead and cold regardless. Yet we see, as part of the defense, lots of focus being put on relatively intangible factors that are deliberately fed into the proceedings to gain sympathy and defocus the rational thinking that ways up the act vs the reasonable tolerence of what will ultimately be right for the better of society.

    Tolerence and consideration of what and why, is necessary, but it shouldn’t ever downgrade what is very clearly an inexcusable act of a person vs another person at the cost of the victims’s life.

    Then again, maybe the thinking behind these views is partly why i found law to be at odds with my outlook – and i say that as a law abiding person who does everything in my ability and means to abide.

 
 

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