Criminalising identity theft : a comparative study of Barbados, England and Australia

This thesis examines whether identity theft is an offence in Barbados, England or Australia and, more fundamentally, considers if the criminalisation of the misconduct is justified by reference to the normative theories of harm and morality. The study is a doctrinal and theoretical one that draws on primary and secondary legal materials. Comparative examination of laws of relevance to identity-related misconduct are not new but this is the first involving these three countries, each of which presents a unique feature. More importantly, the thesis contributes to the literature on the special part of the criminal law by commencing detailed normative inquiry into the criminalisation of identity theft. Adopting a conceptualisation based on its folk origins, identity theft is taken to mean the assumption of another’s identity through the use of that person’s personal identification information. The study focuses on the harm which may arise from that core act as distinct from that which may be consequential on conduct facilitated by, or associated with, it. An examination of relevant offences in the countries of choice leads to the conclusion that the misconduct is not a criminal offence. Additionally, the study rejects the practice of sentencing courts in treating identity theft as an aggravating factor as an inadequate denunciation of the misconduct and a breach of the principle of fair labelling. This necessitates the normative enquiry which includes considerations of objectification, ethically grey conduct, human dignity, consent and remote harm. With respect to the latter, the thesis offers a conceptualisation of the role of identity theft in facilitating wrongdoing. The study establishes a prima facie case for criminalisation based on morality, the risk of harm to direct victims and harm to the societal interest in identification.