'Born again' in barbados: the theft act, 1992

• Author: Graeme Broadbent/Clifford Hall
• Position: Of the Faculty of Law, University of the West Indies, Cave Hill Campus, Barbados
• Pages: 260-292

'BORN AGAIN' IN BARBADOS:

THE THEFT ACT, 1992

GRAEME BROADBENT AND CLIFFORD HALL*

In Bourne v. Edwards, Stoby C.J. said: "In Barbados, the law

relating to larceny is the common law of England ... the Larceny Act,

1916

[U.K.],

made no change in the law but merely consolidated it

without imposing anything new. This being so it may be useful to refer

to the relevant portion of the statutory definition of larceny."1 These

words are somewhat misleading. The law relating to larceny in

Barbados was not simply the common law of England but also the

Larceny Act, 1868,

Cap.

139.

That Act, however, contained no

definitions of the basic precepts of larceny but simply provided a

massive catalogue of nearly 80 larcenous offences ranging from killing

pigeons and stealing live and dead fences to the standard robbery,

burglary, obtaining by false pretences and so on. Stoby C.J. was right,

however, to say that what larceny was in its nature, and likewise the

incidents of other serious offences, was rooted in the common law as

the 1868 Act itself acknowledged, by s.3, in declaring that "Every

larceny ... shall be deemed to be of the same nature and shall be

subject to the same incidents in all respects as grand larceny was

before the 6th September, 1834." It was natural, therefore, for the

Barbados courts after 1916 to refer to the Larceny Act of that date as

a convenient metwand of some common law principles. The virtue of

the 1868 Act (itself based on the 1861 Larceny Act in England) and the

1916 Act was that they consolidated a number of statutory provisions

and re-stated them in a convenient form. But none of these provisions

created new law in the sense of embodying any fundamental

reconsideration and reconstruction of underlying principles. This the

Theft Act, 1968 achieved in England and now that some of its rougher

Of the Faculty of Law, University of the West Indies, Cave Hill Campus,

Barbados.

1 (1959) 1 W.I.R. 96.

edges have been honed away, its enactment in Barbados in 19922 must

be welcomed, albeit cautiously; though it may be noted that other

Caribbean states, for example Turks and Caicos and St. Vincent and

the Grenadines (in the Criminal Code, Cap. 124), had already adopted

it either substantially or completely.

As in England in 1968, the new law might cause some initial

difficulty in its interpretation and administration. However, Barbados

courts do have the jurisprudence of 25 years to draw upon. Thus,

though the former law had the advantage of familiarity, the new law

will not exactly have to be learned untutored.3 There are many

advantages in the new law.

One is in sentencing policy. For the most part, there will be single

maximum penalties in lieu of the former widely differing penalties

based on such factors as the kind of property involved, the method by

which or place where the offence was committed and whether the

offence was a first or subsequent offence. Though the penalties in the

Barbados Act do not always mirror those in England,4 a wide

discretion is left to the courts but the maximum term is high enough

for the worst cases.

2 As Cap.29. The Act came into force on 1st September, 1994: references

herein to the "1992 Act" are references to the Barbados Theft Act;

references to the "1968/1978 Acts" are references to the Theft Acts of

those dates which apply to England and Wales only (hence references to

the "English Act"). The procedural difficulty created initially by

references in the 1992 Act to trial on indictment has now been resolved:

Magistrates Jurisdiction and Procedure (Amendment) Act, 1994-20, s.2

and Schedule, para.8.

3 Cf. Mr. D.A.C. Simmons, House of Assembly Debates, 1st Session

1991-96, 16 June 1992, on the moving of the Second Reading of the

Theft Bill, at p.2170: "for practitioners it is going to result in a

complete [re]-orientation of their thinking".

4 E.g., robbery and assault with intent to rob under s.8(2), 1968 Act,

imprisonment for life - s.8(3) 1992 Act, 15 years; making off without

payment under s.3, 1978 Act, three years - S.14(1), 1992 Act, five

years.

It may be noted that in England the maximum sentence for theft

has been reduced from ten years to seven: s.26(l). Criminal Justice Act,

1991.

This was apparently because the sentences handed down by the

courts rarely approached the maximum, and it was therefore thought

appropriate to reduce it to a level reflecting the policy of the courts.

However, the White Paper preceding the Act, Crime, Justice and

Protecting

the Public,

Cmnd.

965 (1990) is by no means clear on this

point.

Another is the simplification of the new code. The number of

offences is cut by three quarters to just 22 offences. Under the 1868

Act, for example, there were nine principal offences relating to

sacrilege, burglary and housebreaking plus a further two relating to

larceny in a dwelling house. There are now just three offences under

ss.24-26, including sacrilege which is not to be found in the English

Act and for which the penalty is Life. Gone, then, is the elaborate,

technical and bewildering gamut of offences under

ss.

38-49 of the 1868

Act: e.g., entering a dwelling house with intent to commit any of 21

offences under the Offences Against the Person Act,

Cap.

141;

burglary

by breaking out of a dwelling house; breaking and entering a building

and committing a felony therein; being in a building and committing

a felony and then breaking out; housebreaking or breaking and entering

a building such as a boiling house or granary and committing a felony

therein; being in such a building and breaking out having committed

a felony therein etc., etc..

In other key areas the old law was unduly difficult and complex. As

the Criminal Law Revision Committee stated in their 8th Report,5

though the definition of larceny used simple language the reality was

very different. Thus, for example, the word "taking", of

a

person who

"takes and carries away", had acquired a substantial body of law. In

the 35th edition of

Archbold

the exegesis of

the

word occupied no less

than 18 pages.6 Again, the distinction between larceny by a trick and

obtaining by false pretences was both illogical and difficult to draw in

practice and, similarly, it was hard to justify the distinction between

larceny, embezzlement and fraudulent conversion (though this last was

assimilated to larceny under s.4, 1868 Act). Thus, whether a particular

misappropriation was larceny or embezzlement depended on the nice

question of whether the servant or clerk had deposited the property in

his employer's possession. The cashier who misappropriated money

before putting it into the till committed embezzlement. If he took it

afterwards, it was larceny. Yet common to both situations was the

dishonest appropriation of another's property and the law should surely

concentrate, as it now by and large does, on what the accused

dishonestly sought to achieve and not on the means he used or the time

5

Cmnd.

2977 (1966), para.32.

6 At pp.599-617.