Oxford v Moss

Facts

The defendant was a university student who obtained the proof of an examination paper before the examination, copied or read the questions, and returned the paper. He was charged with theft of the confidential information in it.

History

The magistrates dismissed the information. The prosecutor appealed to the Divisional Court by way of case stated.

Issue

Whether confidential information is property within s 4(1) of the Theft Act 1968 so that it can be the subject of theft, and whether the defendant intended permanently to deprive the owner of it.

Held

Appeal dismissed. Confidential information is not property within the meaning of s 4(1), so the defendant could not be convicted of its theft.

Ratio

• Confidential information is not intangible property within s 4(1) of the Theft Act 1968, and so cannot be stolen; taking and returning the paper containing it did not amount to theft of the information.

Key reasoning

• Section 4(1) defines property to include things in action and other intangible property, but confidential information is not a thing of that kind in the sense of the Act.
• The information is not something that the owner is deprived of by another learning of it, since the owner retains it, so the language of appropriation and intention permanently to deprive cannot be applied to it.
• The paper itself was returned, so the taking of the paper could not found theft either.

Where it fits in the module

Topic 5 on property offences begins with the definition of property in s 4 of the Theft Act 1968 and the elements of appropriation and intention permanently to deprive. This case marks one boundary of the definition, since the broad language of the Act still excludes information. It also shows the contrast with the protection afforded by other branches of law, such as breach of confidence, and the limits of reasoning from the policy of the Act.

Criticisms

• The outcome rests on a narrow reading of intangible property, even though the Act lists things in action, and a more purposive reading would treat valuable information as property.
• A defendant who acts dishonestly to obtain an advantage from confidential material escapes the criminal law, which suggests a gap that Parliament, not the courts, has had to fill.
• The difficulty that information is not lost to its owner when copied reflects the model of theft as taking away, which may be unsuited to modern forms of wrongdoing.