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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Lloyd & Anor, R. v  EWCA Crim 1 (23 April 1985)
Cite as:  QB 829,  EWCA Crim 1
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and Friday 26th April 1985.
B e f o r e :
MR. JUSTICE FARQUHARSON
MR. JUSTICE TUDOR PRICE
| R E G I N A
|SIDNEY DOUGLAS LLOYD RANJEET BHUEE
|MOHAMMED CHAUKAL ALI
Crown Copyright ©
THE LORD CHIEF JUSTICE: These are appeals against conviction by Sidney Douglas Lloyd, Ranjeet Bhuee and Mohammed Chaukal Ali. They come to this Court by the certificate of the learned trial Judge and the appeal arises in the following way.
On 5th February this year at the Central Criminal Court before Judge Hilliard and a jury, after a trial lasting about a fortnight, these appellants were convicted of conspiracy to steal and were sentenced to varying terms of imprisonment. As far as Ali was concerned, his term of imprisonment was suspended.
The indictment originally contained three counts. They were re-numbered but in the end the first count was conspiracy to steal contrary to section 1(1) of the Criminal Law Act 1977, the particulars of offence being that the various conspirators "on divers days before the 11th day of March 1983 conspired together and with other persons to steal feature films". The second count was an allegation of conspiracy to defraud and the third count was one of handling stolen goods. The third count disappeared from the scene and we are not concerned with that. The second count, after argument before the learned Judge, was ruled not to be proceeded with and that remained upon the file, and still remains upon the file, subject to the usual conditions
The first count of conspiracy to steal of course was that upon which the conviction was recorded, and it should be noted that that count was added to the indictment as a result of the decision of the House of Lords in Ayres (1984) 78 Cr. App. R. 239. It was added to the indictment without objection by the defence. Mr. Du Cann, on behalf of the appellants in this case, suggests that that count should not properly have been added, because there was insufficient evidence upon the committal documents to justify the addition.
At all material times the appellant Lloyd was employed as chief projectionist at the Odeon Cinema at Barking. The other two appellants with whom we are concerned, namely Ali and Bhuee, were employed by a man called Mustafa, who was also named in the indictment who pleaded guilty to the charge of conspiracy to steal. They were employed at premises at 3 Plumstead Road, Barking. The case against the appellants was that over a period of months Lloyd had been clandestinely removing feature films which were due to be shown at the Odeon Cinema at Barking and lending them to his co-defendants, who had sophisticated equipment at their premises at 3 Plumstead Road. That sophisticated equipment enabled them to copy the feature films on to a master video tape, and, as a result of the preparation of that master video tape, they or others were enabled to produce a very large quantity of pirated versions of the film.
The process of copying was done rapidly. The films were only out of the Cinema and out of the hands of Lloyd for a few hours and were always back in time for their projection to take place at the advertised times to those people who attended the Cinema to see them.
It was important that the film should be returned rapidly, because if it was not it would soon become apparent that the film had been illegally removed and steps would be taken to prevent a recurrence.
The pirated copies prepared from the master tape would be put on the market to the great financial benefit of the pirates and the great financial detriment of the lawful owners, the film distributors and those who would derive money from the film enterprise. The detriment would occur in a number of different ways, and that indeed was proved before the jury. First of all it would occur through a lowering of cinema attendances to see the particular film, and secondly, through the legitimate sales of cassettes of the film being undermined by the sale of the pirated copies. The profits apparently, so it was stated in evidence, to the film pirates are enormous and the loss to the legitimate trade is potentially crippling.
In the upshot the appellants were caught red handed in the process of copying a film called "The Missionary" on to the master tape.
The learned Judge issued his certificate by posing the following question:
"Whether the offence of conspiracy to steal is committed when persons take a film from a cinema without authority intending it should be returned within a few hours but knowing that many hundreds of copies will be subsequently made and that the value of the film so returned will thereby be substantially reduced?"
The complaint by the appellants is this, that the Judge misdirected the jury first of all in leaving the question for them to decide whether the removal of a film in these circumstances could amount to theft, and secondly, in allowing them to consider section 6(1) of the Theft Act 1968 as being relevant at all in the circumstances of this case.
The point is a short one. It is not a simple one. It is not without wider importance, because if the Judge was wrong in leaving the matter in the way in which he did for the jury to consider, it might mean, as we understand it, that the only offence of which a person in these circumstances could be convicted would be a conspiracy to commit a breach of the Copyright Act 1956. At the time when this particular case was being tried, the maximum penalties available for the substantive offence under the Copyright Act were minimal. Those penalties have now been increased by the provisions of the Copyright (Amendment) Act 1983, and in the light of that Act it can be said that although Parliament perhaps has not entirely caught up with this type of prevalent pirating offence, it is at least gaining on it.
We turn now to the provisions of the Theft Act 1968, the conspiracy alleged being a breach of that particular Act. Section 1(1) of that Act provides that "A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and 'thief' and 'steal' shall be construed accordingly. "
On that wording alone these appellants were not guilty of theft or of conspiracy to steal. The success of their scheme and their ability to act with impunity in a similar fashion in the future, depended, as we have already said, upon their ability to return the film to its rightful place in the hands of the Odeon Cinema at Barking as rapidly as possible, so that its absence should not be noticed. ' Therefore the intention of the appellants could more accurately be described as an intention temporarily to deprive the owner of the film and was indeed the opposite of an intention permanently to deprive.
What then was the basis of the prosecution case and the basis of the Judge's direction to the jury? It is said that section 6(1) of the Theft Act brings such actions as the appellants performed here within the provisions of section 1. The learned Judge left the matter to the jury on the basis that they had to decide whether the words of section 6(1) were satisfied by the prosecution or not.
Section 6(1) reads as follows:
"A person appropriating property. belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other's rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal. "
That section has been described by J. R. Spencer in his article in (1977) Criminal Law Review 653, as a section which "sprouts obscurities at every phrase", and we are inclined to agree with him. It is abstruse. But it must mean, if nothing else, that there are circumstances in which a defendant may be deemed to have the intention permanently to deprive, even though he may intend the owner eventually to get back the object which has been taken.
We have had the benefit of submissions by Mr. Du Cann in this case. His first submission is that the definition of "property" in section 4 of the Theft Act does not include value, and he submits that it was on the basis of loss of value or loss of virtue of the films that the prosecution of the case proceeded. In order to substantiate that submission, he referred us to the decision of the House of Lords in Rank Film Distributors Ltd. v. Video Information Centre (1982) A. C. 380. Belying Upon that case he sought to demonstrate to us that the provisions of the Theft Act do not cover the stealing of copyright or kindred matters.
We are indebted to Mr. Du Cann for his careful arguments on this point, namely to the effect that copyright is probably not a subject of theft, but we are not concerned with that proposition here, so it seems to us, except perhaps incidentally, because the allegation here was one of conspiracy to steal feature films, not the copyright in them, and the allegation that the defendants conspired together to steal feature films depends upon proof by the prosecution that that is the thing that they were conspiring to steal.
Mr. Du Cann next cites to us a series of helpful cases, and they are these. First of all the case of Warner (1971) 55 Cr. App. R. 93. This was a case in which the judgment of the Court was delivered by Lord Justice Edmund Davies. Having cited the words in which the Chairman directed the jury, Lord Justice Edmund Davies goes on as follows: "But unfortunately his direction later became confused by his references to section 6, the object of which he may himself have misunderstood. There is no statutory definition of the words 'intention of permanently depriving', but section 6 seeks to clarify their meaning in certain respects. It's object is in no wise to cut down the definition of 'theft' contained in section 1. It is always dangerous to paraphrase a statutory enactment, but it's apparent aim is to prevent specious pleas of a kind which have succeeded in the past by providing, in effect, that it is no excuse for an accused person to plead absence of the necessary intention if it is clear that he appropriated another's property intending to treat it as his own, regardless of the owner's rights.
Section 6 thus gives illustrations, as it were, of what can amount to the dishonest intention demanded by section 1(1). But it is a misconception to interpret it as watering down section 1. "Those observations we Must bear in mind, because that is a decision which of course 'is binding on this Court.
Then Mr. Du Cann referred us to the case of Duru (1974) 58 Cr. App. R. 151. That was a case involving cheques. The allegation was that the defendant had obtained certain cheques from the local authority by deception with the intention of permanently depriving the council of them. That was contrary to section 15(1) of the Theft Act 1968, but section 6(1) was equally applicable in that case as it would have been had the allegation been one simply of theft.
Lord Justice Megaw delivering the judgment of the Court said this: "So far as the cheque itself is concerned, true it is a piece of paper. But it is a piece of paper which changes its character completely once it is paid, because then it receives a rubber stamp on it saying it has been paid and it ceases to be a thing in action, or at any rate it ceases to be, in its substance, the same thing as it was before: that is, an instrument on which payment falls to be made. It was the intention of the appellants, dishonestly and by deception, not only that the cheques should be made out and handed over, but also that they should be presented and paid, thereby permanently depriving the Greater London Council of the cheque in its substance as a thing in action. The fact that the mortgagors were under an obligation to repay the mortgage loans does not affect the appellants' intention permanently to deprive the Council of these cheques.
"If it were necessary to look to section 6(1) of the Theft Act, this Court would have no hesitation in saying that that subsection, brought in by the terms of section 15(3), would also be relevant, since it is plain that the appellants each had the intention of causing the cheque to be treated as the property of the person by whom it was to be obtained, to dispose of, regardless of the rights of the true owner.
Finally Mr. Du Cann referred us to the case of Downes (1983) 77 Cr. App. R. 260. That was a case similar in essence to Duru. The judgment in Downes was delivered by Mr. Justice Nolan who said this:
"It is of some interest to note in Duru the Court was referred to the earlier case of Warner (1970) 55 Cr. App. E. 93. which Mr. Lodge cited in support of the narrower reading of section 6(1) for which he contended. Warner does not however appear to us, as evidently it did not appear to this Court in Duru to have any significant bearing on the point at issue.
"It follows that, for substantially the sane reasons as those given by the learned judge, we consider that the charge of theft is made out, the vouchers having been dishonestly appropriated with the intention of destroying their essential character and thus depriving the owners, the Inland Revenue, of the substance of their property. In our judgment therefore the appeal must be dismissed. "
In general we take the same view as Professor Griew in the fourth edition of his work on the Theft Acts at paragraph 2/73, namely that section 6 should be referred to in exceptional cases only. In the vast majority of cases it need not be referred to or considered at all.
Deriving assistance from another distinguished academic writer, namely Professor Glanville Williams, we would like to cite with approval the following passage from his Textbook of Criminal Law, Second Edition, at page 719:
"In view of the grave difficulties of interpretation presented by section 6, a trial judge would be well advised not to introduce it to the jury unless he reaches the conclusion that it will assist them, and even then (it may be suggested) the question he leaves to the jury should not be worded in terms of the generalities of the subsection but should reflect those generalities as applied to the alleged facts. For example, the question sight be; 'Did the defendant take the article, intending that the owner should have it back only on Baking a payment? If so, you would be justified as a matter of law in finding that he intended to deprive the owner permanently of his article, because the taking of the article with that intention is equivalent to an outright taking. '"
Bearing in mind the observations of Lord Justice Edmund Davies in Warner (above), we would try to interpret the section in such a way as to ensure that nothing is construed as an intention permanently to deprive which would not prior to the 1968 Act have been so construed. Thus the first part of section 6(1) seems to us to be aimed at the sort of case where a defendant takes things and then offers them back to the owner for the owner to buy if he wishes. If the taker intends to return them to the owner only upon such payment, then, on the wording of section 6(1), that is deemed to amount to the necessary intention permanently to deprive: see for instance Hall's case (l848) 1 Den. 381, where the defendant took fat from a candle-maker and then offered it for sale to the owner. His conviction for larceny was affirmed. There are other cases of similar intent: for instance, 'I have taken your valuable painting. You can have it back on payment to me of £X, 000. If you are not prepared to make that payment, then you are not going to get your painting back. '
It seems to us that in this case we are concerned with the second part of section 6(1), namely the words after the semi-colon: "and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal". These films, it could be said, were borrowed by Lloyd from his employers in order to enable him and the others to carry out their 'piracy' exercise.
Borrowing is ex hypothesi not something which is done with an intention permanently to deprive. This half of the subsection, we believe, is intended to make it clear that a mere borrowing is never enough to constitute the necessary guilty Bind unless the intention is to return the "thing" in such a changed state that it can truly be said that all its goodness or virtue has gone. For example R. v. Beecham (1851) 5 Cox. l8l, where the defendant stole railway tickets intending that they should be returned to the railway company in the usual way only after the journeys had been completed. He was convicted of larceny. The learned Judge in the present case gave another example, namely the taking of a torch battery with the intention of returning it only when its power is exhausted.
That being the case, we turn to inquire whether the feature films in this case can fall within that category. Our view is that they cannot. The goodness, the virtue, the practical value of the films to the owners has not gone out of the article. The film could still be projected to paying audiences, and, had everything gone according to the conspirators' plans, would have been projected in the ordinary way to audiences at the Odeon Cinema, Barking, who would have paid for their seats. Our view is that those particular films which were the subject of this alleged conspiracy had not themselves diminished in value at all. What had happened was that the borrowed film had been used or was going to be used to perpetrate a copyright swindle on the owners whereby their commercial interests were grossly and adversely affected in the way that we have endeavoured to describe at the outset of this judgment. That borrowing, it seems to us, was not for a period, or such circumstances, as made it equivalent to an outright taking or disposal. There was still virtue in the film.
For those reasons we think that the submissions of Mr. Du Cann on this aspect of the case are well founded. Accordingly the way in which the learned Judge directed the jury was mistaken, and accordingly this conviction of conspiracy to steal must be quashed.
Mr. Lloyd-Eley next makes a submission to us that we should reactivate so to speak the count of conspiracy to defraud which was ordered to remain on the file. If we have understood his submissions correctly, what he puts forward is this: that despite the decision of the House of Lords in Ayres (to which reference Bust be Bade in a moment), this Court can substitute a count for conspiracy to defraud because a breach of the Copyright Act does not necessarily involve fraud, and it is only where the substantive offence necessarily involves fraud that the decision of their Lordships in Ayres applies.
In order to determine the validity or otherwise of that argument, it is necessary to refer to the decision in Ayres (1984) 78 Cr. App. R. 239. We do not think it necessary to refer to the facts of the case. The leading speech was the speech of Lord Bridge, and we read a passage from his speech. It runs as follows: "One school of judicial thought with regard to the construction of sections 1 and 5 of the Act holds that any conspiracy to commit an offence involving an element of fraud in the sense explained in the foregoing paragraph is properly indicted as a common law conspiracy to defraud. The contrary view is that, whenever the conspiracy, if carried into execution, would involve the commission of a substantive offence, notwithstanding that the offence involves an element of fraud, the offence committed is a statutory conspiracy under section 1 of the Act and should be indicted as such.
"Before turning to the authorities and arguments bearing on this conflict of opinion, it is well to remove one source of misunderstanding. Some judicial dicta on the subject might be understood as suggesting that the choice whether to prosecute for a statutory conspiracy under section 1 of the Act or for a common law conspiracy to defraud is one dictated by convenience and that in many cases both options may be open. It was indeed argued for the Crown before your Lordships that the two offences are not mutually exclusive. I have no hesitation at the outset in rejecting this argument. Section 5(2) of the Act, which preserves conspiracy to defraud at common law as an exception to the general abolition of the offence of common law conspiracy by section 5(1) concludes with the words: '..... and section 1 above shall not apply in any cast where the agreement in question Mounts to a conspiracy to defraud at common law. ' I can see no escape from the stark choice of alternatives which this plain language imposes. According to the true construction of the Act, an offence which amounts to a common law conspiracy to defraud must be charged as such and not as a statutory conspiracy under section 1. Conversely a section 1 conspiracy cannot be charged as a common law conspiracy to defraud. It is, in my opinion, of considerable importance to bear in mind the implications of the fact that the offences are thus mutually exclusive in approaching the problem of construction. "
What his Lordship is doing there is, having posed the two possible results, to have come down firmly in favour of what he describes as the contrary view as being correct. The contrary view is this: Whenever a conspiracy, if carried into execution, would involve the commission of a substantive offence, notwithstanding that the offence involves an element of fraud, the offence committed is a statutory conspiracy under section 1 of the Act and should be indicted as such.
Here it is conceded that the conspiracy was, if not to steal, a conspiracy to contravene the provisions of the Copyright Act, and the use of the words by Lord Bridge, "notwithstanding that the offence involves an element of fraud", seem to us to make it even stronger in favour of Mr. Du Cann's submission in this case, where there was not any necessary connotation of fraud in the Copyright Act, to make it perfectly plain that this was a case where it was improper to pursue an allegation of common law conspiracy to defraud.
That was the result which Judge Hilliard came to after submissions. We consider that his view on this was correct, and that it was a case, on this particular indictment, of either proving conspiracy to steal or nothing. Consequently we decline to activate the count which was left on the file not to be proceeded with and this appeal must be on both aspects allowed, the conviction quashed with no reactivation of the conspiracy to defraud.
MR. TO CANN: My Lord, since the appeal has been allowed it enables me to ask that your Lordships make an order that the legal aid costs, for we are instructed by the Registrar of the Court, should be paid out of central funds. That may have only a technical effect so far as we are concerned and indeed our clients, but it does preclude the costs of the appeal being borne by the Legal Aid Fund. That has, over a period of months and years, of course an important consequence so far as accounting is concerned.
THE LORD CHIEF JUSTICE: I do not understand why we should. Is this not a proper case for legal aid?
MR. DU CANN: Indeed it is, but all that I ask is that the costs should be paid out of central funds and not out of the Legal Aid Fund. It has this effect, that the costs will be taxed in the usual way. There will then be an accounting exercise in the first instance to debit the Legal Aid Fund, which will be recompensed by a payment from central funds. It prevents the costs of this case falling on the Legal Aid Fund itself.
THE LORD CHIEF JUSTICE: I do not see why they should not. What distinguishes this case from any other case?
MR. DU CANN: The application that I make is open to counsel to make before your Lordship in any case in which the appeal has been allowed. If all counsel did it, it would substantially reduce the apparent costs to the Legal Aid Fund, since so much attention, indeed criticism, is directed to the growth of the costs of the Legal Aid Fund. If every counsel when they were successful did it, one would see that the cost in fact is substantially reduced.
THE LORD CHIEF JUSTICE: Can the application only be made where the appellant succeeds?
MR. DU CANN: Yes, under the Costs in Criminal Cases Act.
THE LORD CHIEF JUSTICE: Have you any observations Mr. Lloyd-Eley?
MR. LLOYD-ELEY: No, my Lord, it is a matter entirely for your Lordships' discretion.
THE LORD CHIEF JUSTICE: We grant your application.
(An application by the Crown for a point of law of general importance to be certified was adjourned, for the appropriate point of law to be drafted. Meanwhile the appellants Lloyd and Bhuee were granted unconditional bail)
Friday. 26th April, 1985.
(Counsel for the Crown withdrew his application for a point of law of general importance to be certified, whereupon the appellants Lloyd and Bhuee were ordered to be discharged immediately. Legal aid was granted by the Court for counsel attending on behalf of the appellants. )