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If Joe steals Alice's widget, but Alice for some reason doesn't want Joe to be convicted and is okay with him having her widget, can she retroactively give him permission? Does this prevent him from being prosecuted?

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  • The victim can certainly decline to press charges. That doesn't guarantee the prosecutor won't attempt to do so anyway, but unless it's a prestige case they probably have better things to do
    – keshlam
    Oct 26, 2022 at 13:48
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    One reason for continuing with a case despite Alice trying to get it dropped might be that Alice wasn't actually supposed to possess the property that was stolen from her. Maybe she stole it, the repo company were after it, she shouldn't have had it in the first place, or its ownership was otherwise not something she wanted to have discussed in court. In such cases, the authorities might have grounds to prosecute both Joe and Alice.
    – Stuart F
    Oct 26, 2022 at 15:44
  • @StuartF would Alice's attempting to prevent Joe from being convicted likely cause suspicion that Alice shouldn't have possessed it if there's no other evidence?
    – Someone
    Oct 26, 2022 at 17:13
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    @MichaelHall Apparently, a prosecutor e.g. in New York State can prosecute even without the injured party suing. One example that comes to mind is the fraud trial against Trump in New York. Trump's defense is that the banks still profited handsomely and are in fact not complaining, so there is no injury. The prosecutor thinks differently. Whether to become active in this manner is in the discretion of the prosecutor. She campaigned with that promise. Feb 9 at 9:37
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    @MichaelHall In this case as well, iiuc, the banks saying "he can keep his money" would not make it no fraud (note the double negation). Them saying "we never felt cheated", by contrast, will affect the assessment of the act proper; but of course pizza joint owner Roberto may claim that he never felt cheated by Uncle Enzo who sold him tomato sauce for $50 per can. The prosecutor can probably ignore that in the prosecution of Uncle Enzo, the same way they can ignore banks who don't want to spoil their relationship with Uncle Trump. Feb 9 at 9:44

4 Answers 4

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Yes, but that doesn't make the theft not theft

At the time of the crime, Joe committed theft. The state can prosecute Joe for that theft. Alice's subsequent gift does not change this although it would prevent her from suing for recovery.

As a practical matter, if Alice was willing to lie and say that the gift preceded the theft or she had given permission for the item to be taken, this would almost surely create reasonable doubt in any prosecution. However, on a pure "these are the facts" basis, the theft is a theft.

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  • In fairness, however, a covert and perhaps dishonest attempt to do so, in the sense of the priest who did so in Victor Hugo's classic novel, "Les Miserables", would almost certainly be effective to prevent someone from being prosecuted for theft in practice.
    – ohwilleke
    Oct 26, 2022 at 1:02
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    Thank you! So she can't retroactively legalize the theft, but if she's willing to commit perjury, she can probably get him acquitted?
    – Someone
    Oct 26, 2022 at 2:30
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    If she convinces the prosecutor that she will make such a statement or will have sudden memory loss then the prosecutor may drop the case before any perjury happens.
    – gnasher729
    Oct 26, 2022 at 7:30
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    @ohwilleke while I love that part of the opera sung, it relies on the special position of the priest and that there was no other witness - in fact, the situation in the scene was, that the accused thief was accosted with the items and then dragged to the priest, who in turn declared the items were not stolen but gifted. The whole idea of theft alleged by the police came from the alleged thief being a convict on permanent parole traveling with a large amount of silver.
    – Trish
    Oct 26, 2022 at 10:10
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    @ohwilleke it also doesn't help the situation that the judicative system during the time depicted in Les Miserables is highly corrupt and the bishop has not only a higher standing and is seen as a person whose statement is nigh-infallible. Would Alice be said Bishop (or rather Adam then), then Bob-Valjean-24601 might go free, but Bob-Valjean-24601 will have to hide that he is Bob-Valjean and need a new name anyway... just to become a honest man because the law doesn't allow it otherwise... which again is the crime for which Captain-Javert will hunt him...
    – Trish
    Oct 26, 2022 at 10:24
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It is a statutory defence to a charge of theft for Joe to show that 'he appropriates the property in the belief that he would have the other's [Alice's] consent if the other knew of the appropriation and the circumstances of it.' (Theft Act 1968, section 2(1)(b)). The fact that Alice did give consent once she knew of the appropriation and its circumstances would be pretty helpful to Joe here.

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One thing that pops up frequently in this SE is that the victim can "press charges," but the authorities do not need permission to charge the perpetrator. If Joe has been apprehended by the authorities and charges are filed, it isn't necessarily something that Alice can change.

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  • In this case, Alice does not just not care; she is actively trying to prevent any negative consequences for Joe.
    – Someone
    Oct 25, 2022 at 22:02
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    Alice isn't the one suing, it*s The state, and they don't need Alice allowance or even Alice's witness statement. They can just pull the allegation.
    – Trish
    Oct 25, 2022 at 22:40
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    The state usually does not sue people for crimes.
    – user6726
    Oct 26, 2022 at 0:25
  • The question is not just whether Alice can prevent the prosecution from bringing a case against Joe, but also whether her testimony (or, perhaps, any other evidence she can provide) could establish that Joe is not guilty. The state may choose not to call Alice as a witness, but if she intends to offer exculpatory evidence then Joe's defense may choose to call her as a witness. And Alice's intention to exculpate Joe may also affect the prosecutor's decision of whether to bring the case to trial.
    – kaya3
    Oct 26, 2022 at 6:22
  • Police and authorities often don't put much effort into investigating burglaries, muggings, shoplifting, and other forms of low-value theft, so if Alice is making the investigation particularly hard, they may well not bother. Although if they had someone already confessing/pleading guilty, then it would be simple enough to continue with the case.
    – Stuart F
    Oct 26, 2022 at 15:41
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I'll rephrase the question for clarity.

Assume the defence and prosecution submit the following joint agreed statement of facts:

  • at 20:00 Y owned the Item
  • at 20:00, X took the Item from Y
  • when X took the Item from Y, X did not have permission to take the Item from Y
  • when X took the Item from Y, X did not believe X had a right to possess the Item
  • when X took the Item from Y, X intended to deprive Y of the Item
  • at time 22:00, Y gave X permission to possess the Item

Is theft made out on these facts?

Yes. Whether an offence has been committed is assessed based on the circumstances at the time of the alleged offence. All the elements of theft are present for the act that occurred at 20:00.

It is not open in law to argue that consent provided at 22:00 could have any bearing on the guilt, if it is established that when the item was taken it was taken without consent.

This is so basic a proposition that I can find only one example where the defence attempted to argue that the complainant could provide retroactive consent to erase an element of an offence otherwise established. The court decided based on credibility, but was also highly skeptical that such an argument would even be legally available. See R. v. Baksh, 2008 ONCA 116.

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