University of New South Wales Faculty of Law Research Series
Last Updated: 19 December 2008
Permanent borrowing and lending: a new view of section 6 Theft Act 1968
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(2008) 17 Nottingham Law Journal 3-24.
This paper considers the meaning and interpretation of the extended definition of “intention of permanently depriving” in the English Theft Act 1968 s 6. The article analyses the various judicial interpretations of the section, pointing out that a lack of reporting of decisions has led to inconsistent approaches to the section. The article uses transcripts of the full judgments to provide a detailed consideration of each case’s reasoning.
Drawing on these reasons, a new way of approaching the section is suggested. On this approach the section is primarily one that deems certain actions to amount to an intention to permanently deprive. Finders of fact should begin with a consideration of whether the accused acts in a way that can objectively be characterised as a pawning or a lending to a third party, or a borrowing that amounts to an outright taking. If none of these criteria apply only then does attention turn to the question of whether the intentions of accused is such as to “treat the thing as his own to dispose of regardless of the other’s rights”. It is suggested that, contrary to current approaches, the first limb of s 6 is in fact a residuary basis for liability.