Property in criminal law and private law

Thesis

A proposition of law about the allocation of proprietary rights or about the objects of a proprietary right which is true at private law is, usually, also true at criminal law. In the ordinary course of things, whatever private law takes to be property owned by X, criminal law would take to be property owned by X. To illustrate, it is true to say that things like balloons, balustrades and ballparks count as the sort of object over which a person can have a proprietary interest, as a matter of both private law and criminal law. It is also true to say that if private law allocates to me a certain balloon, balustrade or ballpark then so will criminal law – on the whole. This is what we expect in the ordinary case.

However, there are a number of instances in English & Welsh law in which this expectation does not hold. The aim of the thesis is to explain why the ordinary case occurs most of the time. A derivative aim is to explain why the ordinary case does not obtain all of the time. Certain vivid occasions on which criminal and private law have come apart, cases such as R v Hinks [2001] 2 AC 241, have received attention. However, there has never yet been a sustained exploration of the influence that both criminal and private law, together, bring to bear on the reasoning and outcomes of cases that involve property and wrongdoing.

My proposal is that the ordinary case is explained by the influence which four features of the legal system exert over the reasoning and outcomes in case-law. The four features are: the laws which constitute ownership, the technical lexicon used to state property laws, concurrent civil and criminal jurisdiction over property, and the maxim that wrongdoers should not benefit from their wrongdoing. These are necessary conditions but they are not necessary and sufficient conditions – whether individually or jointly – because, as we have seen, there is case-law which bucks the trend. That latter case-law is, in turn, explained by two things. The first is value pluralism. The second is a contest between two of law’s claims: law’s claim to moral authority and law’s claim to have comprehensive practical authority.

Authors: Burin, AK

• DOI: 10.5287/ora-pvbrbze2r
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Subjects: Jurisprudence; Property