Can illegal property be stolen?
In the case of R v Smith  All ER (D) 105 (Jan) the Court of Appeal recently ruled that the appropriation of a Class A drug could amount to theft, despite the victim unlawfully possessing it. Mark George QC of GCN was interviewed for Lexis Nexis Current Awareness (published 28.1.11) on why the criminal law is concerned with keeping the peace when protecting property rights.
Extracts from the article as follows:
Mark George QC explains that the problem with the argument put forward on behalf of the appellants was it confused the fact of possession with the nature of that possession. He says: "The Theft Act 1968, s 5 is concerned with protecting the rights of a person who has âpossession or controlâ of the thing. There is no reference either there or elsewhere in the Theft Act 1968 to whether the possession has to be lawful..."
He observes: âThis is the sort of case that excites academic commentators, and philosophers can no doubt contemplate at their leisure the question of whether a person who is unlawfully in possession of anything can properly complain if that thing is stolen from him. However from the legal point of view the outcome of this case was never in doubt. As the court pointed out, the criminal law is concerned with keeping the Queenâs peace and any other outcome would have been to declare open season on drug dealers who could then be robbed of their wares with impunity..."