This isn’t a political defence because this isn’t a political blog per se. If you want to read one of those, I’d recommend this one.
What annoys me here is the throwing around of words implying that David Laws did something criminal in his expenses claim. Some of the comments I’ve read this morning have said more about the prejudices of their writers than any objective assessment of what’s happened. I hope that this should explain why he’d be very unlikely to have committed theft.
The offence of theft is established by section 1(1) of the Theft Act 1968.
A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it
In this there are five “elements” to the offence that need to be prove, the important one here being dishonesty. This carries a particular defence under section 2(1)(a):
A person’s appropriation of property belonging to another is not to be regarded as dishonest if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person
Contrary to popular opinion, ignorance of the law can be a defence here: if the defendant’s belief here is honest, it doesn’t matter that it is reasonable: R v Robinson. David Laws’ statement shows that he believed that he was entitled to that money as he didn’t believe he was in a spousal relationship.
This isn’t, as some suggest, as clear cut as a few reports of benefit fraud suggest. In those cases, the defendants admitted under cross-examination that they knew they were in qualifying relationships. David Laws has done no such thing. He’s supported here in that the definition of living as “spouses” is not at all clear: there’s a very good article by a family lawyer on ConservativeHome on the issue. The case law is also quite confusing: see, for example, this case and the ones to which it refers, for the difficulty the courts have had in determining who is living as someone’s spouse, let alone a layman. We don’t really know the full facts either: without wishing to speculate, they could have been in all manner of arrangements that might not count under any definition. Given the ambiguity, it’s not hard to believe that he wasn’t in a spousal relationship for the purposes of the rules, and therefore had a right in law to the money under s.2(1)(a). Without this element of dishonesty, there is no offence of theft.
Although his repayment would not disprove dishonesty (s.2(2)), it isn’t evidence of dishonesty either. One he found out he wasn’t entitled to the money, had he later decided to keep it, that would have counted as a second appropriation under s.3(1) of the Act. At that point, knowing it was not within the rules would provide the requisite evidence of dishonesty and could have been theft, depending again on his subjective view. As it is, he behaved properly by returning the money once he realised his belief, though honest, was mistaken.