A score for the police?

A surprising theft conviction was reported in the media this week, when a 23 year old woman was convicted of theft after keeping a £20 note she found in a shop in Blurton, Staffordshire.  Three months after picking up the money, the woman was contacted by the police and asked to attend a voluntary police station for an interview. She later received a letter asking her to attend court, where she entered a plea of guilty to theft. She received a conditional discharge, in addition to £135 in court costs.

This case, originally reported in the Stoke Sentinel, has attracted considerable comment. Before doing so, it is important to recognise that the story has only been told by press reports, and consequently not all facts may be in the public domain. However, the decision to prosecute someone for picking up a £20 note and not seeking to reunite it with the lawful owner seems grossly disproportionate, and, in a week when reports of police forces being under severe financial constraints have also been published,  a curious use of police time.

The law of Theft is set down in section 1 of the Theft Act 1968. A person is guilty of theft if they dishonestly appropriate property belonging to another, with the intention of permanently depriving the other of that property. While there is of course no question that the property did belong to another (although when property formally becomes “lost” and no longer belongs to another is open to question) and the other was certainly deprived of the £20.  However, the issue of dishonesty is more complex.

The term “dishonesty” is not defined in the Theft Act.  The most common definition of dishonest is “conduct that is deceitful or not honest”, and will often be straightforward. Under section 2 of the Theft Act, a person’s appropriation of property belonging to another is not to be regarded as dishonest if he appropriates the person’s property in the belief that:

  • He has (in law) the right to deprive the other person of the property on behalf of himself or of a third person.
  • He would have the other person’s consent if the other knew of the appropriation and the circumstances of it.
  • The owner of the property cannot be discovered by taking reasonable steps.

It is the third limb that was at issue in this case. Chief Inspector Karen Stevenson, from Stoke South Local Policing Team said:

Morally, the right thing to do is hand in any found property so that the person who has lost out has every opportunity to be reunited with it. This was someone’s hard-earned money and we are committed to supporting all victims in our community. We would actively encourage any member of the public who picks up money that has been dropped to be honest and do the right thing by taking all reasonable steps to try and find the owner.

This approach seems to be flawed for three reasons.

Firstly, police officers and lawyers are always on dubious ground when using the term morally. There is no desire to revisit the Hart/Devlin debate here, but while the law is influenced by morality, and consequently adapts to fit the prevailing views of society, the two are not, and cannot, be the same. The role of the police is to encourage legal, rather than moral, behaviour.

In theft cases, the well-known Ghosh test establishes the formula to determine whether someone is dishonest. In R v Ghosh [1982] EWCA Crim 2, the court stated that the test for dishonesty involves a two stage test:

  • Whether, according to the ordinary standards of reasonable and honest people, what was done was dishonest. If it was not dishonest by those standards, that would be the end of the matter and the prosecution would fail (the objective test).
  • If it was dishonest by those standards, then the jury had to consider whether the defendant himself had to have realised that what he was doing was by those standards dishonest (the subjective test).

The subjective test is purely focused on whether the defendant knew what he was doing was dishonest, rather than morally justified. The example given by Lord Lane in R v Ghosh was an anti-vivisectionist stealing a live animal from a testing lab, who would be guilty of theft despite his own moral justification.

It seems difficult to believe the Ghosh test was properly applied in this case. The concept of “finders keepers” is of course not law, but the principle does have some application, and is no doubt adopted by those who find small sums of money frequently. In this article from November 2013, a spokeswoman for the Association of Chief Police Officers offers a different interpretation to Chief Inspector Stephenson:

There are no laws that I am aware of governing what you should do with a find – it is down to your conscience. However, if an item can be traced as it includes information about the owner, such as a mobile phone or handbag, then you might want to make sure to hand it in.

Secondly, there is the question of reasonable steps, another undefined term. There will be occasions when the loser is obvious, for example a mechanic finding a £20 note under a car seat or a hotel maid discovering money in a vacated hotel room. Many individuals finding a £20 note in a shop may think that leaving their identity with the manager in the event of someone claiming to have lost it is reasonable. That quickly disappears when the same note is found on the pavement in Oxford Street, or in the middle of Hyde Park.

But perhaps the biggest issue in this case is de minimis. The offence of Theft does not start at a particular value for obvious reasons: a person stealing a worthless replica ring he believes to be a valuable item remains guilty of theft. But there are presumably instances of low value theft some police forces, at least unofficially, deem to be not worthy of their consideration. The problem that then occurs is where the line is drawn: one presumes the police force would not have bothered had the person picked up a five pence piece, but what of a pound coin? The police actions may have been affected by the woman initially informing police that she had not pocketed the money but later admitting it when shown CCTV footage, but that does not change the fact a police force decided the matter was appropriate for investigation.

The case provides a timely reminder that legally, finding an item does not allow anyone simply to keep it. However, a person keeping money she found on the floor of  a shop should not receive a criminal record (a common sense approach would have seen the money returned with a polite word of advice). And unless crime rates in Stoke are far lower than the rest of the UK, residents of Staffordshire may have some questions as to their local police forces’ sense of priority. Chief Inspector Stevenson’s comment “we are committed to supporting all victims in our community” coincided with Her Majesty’s Inspector of Constabulary report that the Staffordshire Police “requires improvement“.

Finally, but perhaps most significantly, the lady convicted made two telling comments, as reported in the BBC: firstly that police told her “not to worry” about speaking to them, and when faced with the prospect of a trial and having to pay legal fees, she instead decided to enter a guilty plea at her first appearance in front of magistrates. If correct, this is deeply worrying and demonstrates the need for anyone to ensure they do not participate in a police interview without legal representation.

Practical Law David Bacon

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