Theft and Fair Labeling: The Harm Principle

1.

Theft

Theft is the intentional taking of someone else’s property dishonestly without the owner’s consent. Theft requires the physical elements to be supported by fault, whereby the accused either intends to deprive the property’s owner permanently, or seriously impinge on the owner’s proprietary rights.

Deception

Deception is the intentional use of false representations by an individual through words or conduct; in order to dishonestly obtain an unfair advantage for self or another by inducing the victim to transfer a benefit or inflict a detriment upon the victim. The intention to deceive is the supportive fault element.

2.

Harm Principle

Mill stated the ‘classic liberal view of the relationship between law and morality’, introducing the Harm Principle: ‘the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others’.

Theft

According to Feinberg, the Harm Principle is liberty limiting - in order for behaviour to be caught by criminal law, that is, considered harm, wrongdoing must be a serious offence. ‘To be harm a person’s interests must be setback’.

Section 134(2) of the Criminal Law Consolidation Act (‘CLCA’) provides that a person will be guilty of an offence if they seriously encroach on the owner’s rights to their property. To seriously encroach would mean the offender dealt with the victims property with the intention of treating it as their own to dispose of at will. Or, the offender dealt with the property in a manner that created a substantial risk to the owner of recovery. The function of s 134(2) is to deter the possibility of that harm. To permanently deprive someone of their property rights by dealing with prope...

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...rt and Kugler, Matthew, ‘Community Perceptions of Theft Seriousness: A Challenge to Model Penal Code and English Theft Act Consolidation’ (2010) 7(3) Journal of Empirical Legal Studies 511

Mcleod, Ian, Legal Theory (Palgrave Macmillan, 4th ed, 2007)

Herring, Jonathan, Great Debates: Criminal Law (Palgrave Macmillan, 2009)

Mitchell, Barry, ‘Multiple Wrongdoing and Offence Structure: A Plea for Consistency and Fair Labelling’ (2001) 64(3) Modern Law Review 393, 395.

Steel, Alex, ‘The Harms and Wrongs of Stealing: the Harm Principle and Dishonesty in Theft’ (2008) 31(3) UNSW Law Journal 712

Stimpson, Claire, ‘Feminist Analysis of the Harm Principle: The Financial Element in Fraud’ (2013) 38(2) Alternative Law Journal 103

Williams, Glanville, ‘Convictions and Fair Labelling’ (1983) 42(1) The Cambridge Law Journal 85

Legislation

Criminal Law Consolidation Act 1935 (SA)