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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> DPP v Gomez [1992] UKHL 4 (03 December 1992) URL: http://www.bailii.org/uk/cases/UKHL/1992/4.html Cite as: [1992] UKHL 4, [1993] AC 442, [1993] 1 All ER 1 |
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Parliamentary
Archives,
HL/PO/JU/18/252
Director of Public Prosecutions (Appellant)
v.
Gomez
(On Appeal from the
Court of Appeal (Criminal Division))
JUDGMENT
Die Jovis 3° Decembris 1992
Upon Report from the Appellate Committee to
whom was
referred the Cause Director of Public Prosecutions
against Gomez,
That the Committee had heard Counsel as well on
Monday the 20th
as on Tuesday the 21st and Wednesday the 22nd days
of July last
upon the Petition and Appeal of the Director of
Public
Prosecutions of 4/12 Queen Anne's Gate, London SW1H 9AZ,
praying
that the matter of the Order set forth in the Schedule
thereto,
namely an Order of Her Majesty's Court of Appeal
(Criminal
Division) of the 22nd day of April 1991, might be
reviewed before
Her Majesty the Queen in Her Court of Parliament
and that the
said Order might be reversed, varied or altered or
that the
Petitioner might have such other relief in the premises
as to Her
Majesty the Queen in Her Court of Parliament might seem
meet; as
upon the case of Edwin Gomez lodged in answer to the said
Appeal;
and due consideration had this day of what was offered on
either
side in this Cause:
It is Ordered and Adjudged, by
the Lords Spiritual and
Temporal in the Court of Parliament of Her
Majesty the Queen
assembled, That the said Order of Her Majesty's
Court of Appeal
(Criminal Division) of the 22nd day of April 1991
complained of
in the said Appeal be, and the same is hereby, Set
Aside and that
the convictions at Isleworth Crown Court of the
20th and 24th
days of April 1990 be, and the same are hereby,
Restored: And
it is also further Ordered, That the Cause
be, and the same is
hereby, remitted back to the Court of Appeal
(Criminal Division)
to do therein as shall be just and consistent
with this Judgment.
Cler: Parliamentor:
Judgment: 3.12.92
HOUSE OF LORDS
DIRECTOR OF PUBLIC
PROSECUTIONS
(APPELLANT)
v.
GOMEZ
(RESPONDENT)
(ON APPEAL FROM THE COURT OF
APPEAL
(CRIMINAL DIVISION))
Lord Keith of Kinkel
Lord
Jauncey of Tullichettle
Lord Lowry
Lord Browne-Wilkinson
Lord
Slynn of Hadley
LORD KEITH OF KINKEL
My Lords.
This appeal raises the question
whether two decisions of
your Lordships' House upon the proper
construction of certain
provisions of the Theft Act 1968 are
capable of being reconciled
with each other, and, if so, in what
manner. The two decisions
are Lawrence v. Metropolitan Police
Commissioner [1972] A.C. 626
and Reg. v. Morris [1984] A.C. 320. The question has given rise
to much debate in subsequent
cases and in academic writings.
The facts of this case are that
the respondent, Edwin
Gomez, was employed as assistant manager at
a shop trading by
retail in electrical goods. In September 1987 he
was asked by an
acquaintance called Jit Ballay to supply goods
from the shop and
to accept payment by two stolen building society
cheques, one for
£7,950 and the other for £9,250,
which were undated and bore no
payee's name. The respondent
agreed, and prepared a list of
goods to the value of £7,950
which he submitted to the manager,
Mr. Gilberd, saying that it
represented a genuine order by one
Johal and asking him to
authorise the supply of the goods in
return for a building society
cheque in that sum. Mr. Gilberd
instructed the respondent to
confirm with the bank that the
cheque was acceptable, and the
respondent later told him that he
had done so and that such a
cheque was "as good as cash." Mr.
Gilberd agreed to the
transaction, the respondent paid the cheque
into the bank, and a
few days later Ballay took possession of the
goods, the respondent
helping him to load them into his vehicle.
Shortly afterwards a
further consignment of goods to the value of
£9,250 was
ordered and supplied in similar fashion (apart from one
item
valued at £1,002.99 which was not delivered), against
the
second stolen building society cheque. Mr. Gilberd agreed to
this
transaction without further inquiry. Later the two cheques
were
returned by the bank marked "Orders not to pay. Stolen
cheque."
The
respondent, Ballay and another employee of the shop,
named Rai,
were arrested and later tried on an indictment the
fourth and
fifth counts in which charged all three with theft
contrary to
section 1(1) of the Theft Act 1968 in respect of the
two
transactions. After evidence had been led for the prosecution
counsel
for the respondent submitted that there was no case to
answer on
the theft charges because the manager of the shop had
authorised
the transactions, so that there had been no
appropriation within
the meaning of section 1(1) of the Theft Act.
The trial judge
rejected this submission, whereupon the respondent
pleaded guilty
to count 4, but defended himself on count 5 on the
basis that he
had acted under duress. The jury, however,
convicted him on this
count, and he was sentenced to two years'
imprisonment on each
count to run concurrently. The respondent
appealed to the Court of
Appeal (Criminal Division) which on 22
April 1991 (Lord Lane C.J.,
Hutchison and Mantell 33.) quashed the
convictions: ([1991] 1
W.L.R. 1344). Lord Lane C.J., delivering the
judgment of the
court, after considering Lawrence v. Commissioner
of
Metropolitan Police [1972] A.C. 626 and Reg. v. Morris
[1984]
A.C. 320, said at p. 1338:
"What in fact happened was
that the owner was
induced by deceit to agree to the goods being
transferred to
Bailey. If that is the case, and if in these
circumstances
the appellant is guilty of theft, it must follow
that anyone
who obtains goods in return for a cheque which he
knows
will be dishonoured on presentation, or indeed by way of
any
other similar pretence, would be guilty of theft. That
does
not seem to be the law. Reg. v. Morris [1984] A.C. 320
decides that when a person by dishonest deception induces
the
owner to transfer his entire proprietary interests that is
not
theft. There is no appropriation at the moment when
he takes
possession of the goods because he was entitled to
do so under the
terms of the contract of sale, a contract
which is, it is true,
voidable, but has been avoided at the
time the goods are handed
over."
And later, at p. 1339:
"We therefore conclude that
there was de facto, albeit
voidable, contract between the owners
and Ballay; that it
was by virtue of that contract that Ballay
took possession
of the goods; that accordingly the transfer of the
goods to
him was with the consent and express authority of
the
owner and that accordingly there was no lack of
authorisation
and no appropriation."
The court later granted a
certificate under section 1(2) of the
Administration of Justice
Act 1960 that a point of law of general
public importance was
involved in the decision, namely
"When theft is alleged and
that which is alleged to be
stolen passes to the defendant with
the consent of the
owner, but that has been obtained by a false
representation,
has (a) an appropriation within the meaning of
section 1(1)
of the Theft Act 1968 taken place, or (b) must such
a
passing of property necessarily involve an element of
adverse
inference with or usurpation of some right of the
owner?"
- 2 -
The Crown now appeals,
with leave granted here, to your
Lordships' House.
The provisions of the
Theft Act 1968 principally relevant
are these:
Section 1(1)
"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."
Section 3(1)
"Any assumption by a person
of the rights of an owner
amounts to an appropriation, and this
includes, where he has
come by the property (innocently or not)
without stealing it,
any later assumption of a right to it by
keeping or dealing
with it as owner."
Section 4(l)
"'Property' includes money
and all other property, real or
personal, including things in
action and other intangible
property."
Section 7
"A person guilty of theft
shall on conviction on indictment
be liable to imprisonment for a
term not exceeding ten
years."
Section 15(1)
"A person who by any
deception dishonestly obtains property
belonging to another, with
the intention of permanently
depriving the other of it, shall on
conviction on indictment
be liable to imprisonment for a term not
exceeding ten
years."
It is to be observed that by
section 26 of the Criminal Justice
Act 1991 the maximum sentence
for theft was reduced from 10 to
7 years. The section 15(1)
penalty was left unchanged.
The facts in Lawrence v.
Metropolitan Police Commissioner
[1972] A.C. 626, as set out
in the speech of Viscount Dilhorne,
were these:
"The appellant was convicted
on December 2, 1969, of theft
contrary to section 1(1) of the
Theft Act 1968. On
September 1, 1969, a Mr. Occhi, an Italian who
spoke little
English, arrived at Victoria Station on his first
visit to this
country. He went up to a taxi driver, the appellant,
and
showed him a piece of paper on which an address in
Ladbroke
Grove was written. The appellant said that it was
very far and
very expensive. Mr. Occhi got into the taxi,
took £1 out of
his wallet and gave it to the appellant who
then, the wallet being
still open, took a further £6 out of
- 3 -
it. He then drove Mr. Occhi to
Ladbroke Grove. The
correct lawful fare for the journey was in the
region of 10s.
6d. The appellant was charged with and convicted of
the
theft of the £6."
The conviction was upheld by
the Court of Appeal (Criminal
Division) which in
granting leave to appeal to your Lordships'
House
certified the following questions as involving a point of law
of
general public importance:
"(1) Whether section 1(1) of
the Theft Act 1968 is to be
contrued as though it contained the
words 'without the
consent of the owner' or words to that effect
and (2)
Whether the provisions of section 15(1) and of section
1(1)
of the Theft Act 1968 are mutually exclusive in the
sense
that if the facts proved would justify a conviction
under
section 15(1) there cannot lawfully be a conviction
under
section 1(1) on those facts."
Viscount Dilhorne, whose speech
was concurred in by Lord
Donovan, Lord Pearce, Lord Diplock and
Lord Cross of Chelsea,
after stating the facts, and expressing
some doubts as to what Mr.
Occhi had meant when he said that he
"permitted" the taxi driver
to take £6, continued,
at p. 631:
'The main contention of the
appellant in this House
and in the Court of Appeal was that Mr.
Occhi had
consented to the taking of the £6 and that,
consequently,
his conviction could not stand. In my opinion, the
facts of
this case to which I have referred fall far short
of
establishing that Mr. Occhi had so consented.
"Prior to the passage of the
Theft Act 1968, which
made radical changes in and greatly
simplified the law
relating to theft and some other offences, it
was necessary
to prove that the property alleged to have been
stolen was
taken 'without the consent of the owner' (Larceny Act
1916,
section 1(1)).
"These words are not included
in section 1(1) of the
Theft Act, but the appellant contended that
the subsection
should be construed as if they were, as if they
appeared
after the words 'appropriates.' Section 1(1) reads
as
follows:
'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.'
"I see no ground for
concluding that the omission of
the words 'without the consent of
the owner' was
inadvertent and not deliberate, and to read the
subsection as
if they were included is, in my opinion, wholly
unwarranted.
Parliament by the omission of these words has
relieved the
prosecution of the burden of establishing that the
taking was
without the owner's consent. That is no longer an
ingredient
of the offence.
- 4 -
"Megaw L.J., delivering the
judgment of the Court of
Appeal, said [1971] 1 Q.B. 373, 376 that
the offence created
by section 1(1) involved four elements; '(i) a
dishonest (ii)
appropriation (iii) of property belonging to
another (iv) with
the intention of permanently depriving the owner
of it.'
"I agree. That there was
appropriation in this case is
clear. Section 3(1) states that any
assumption by a person
of the rights of an owner amounts to an
appropriation.
Here there was clearly such an assumption. That
an
appropriation was dishonest may be proved in a number
of
ways. In this case it was not contended that the appellant
had
not acted dishonestly. Section 2(1) provides, inter alia,
that 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 would have the other's
consent if the other knew of
the appropriation and the
circumstances of it. A fortiori, a
person is not to be
regarded as acting dishonestly if he
appropriates another's
property believing that with full knowledge
of the
circumstances that other person has in fact agreed to
the
appropriation. The appellant, if he believed that Mr.
Occhi,
knowing that £7 was far in excess of the legal fare,
had
nevertheless agreed to pay him that sum, could not be said
to
have acted dishonestly in taking it. When Megaw L.J.
said that if
there was true consent, the essential element of
dishonesty was
not established, I understand him to have
meant this. Belief or
the absence of belief that the owner
had with such knowledge
consented to the appropriation is
relevant to the issue of
dishonesty, not to the question
whether or not there has been an
appropriation. That may
occur even though the owner has permitted
or consented to
the property being taken. So proof that Mr. Occhi
had
consented to the appropriation of £6 from his wallet
without
agreeing to paying a sum in excess of the legal fare
does
not suffice to show that there was not dishonesty in
this
case. There was ample evidence that there was.
"I now turn to the third
element 'property belonging
to another.' Mr. Back Q.C., for the
appellant, contended
that if Mr. Occhi consented to the appellant
taking the £6,
he consented to the property in the money
passing from him
to the appellant and that the appellant had not,
therefore,
appropriated property belonging to another. He argued
that
the old distinction between the offence of false
pretences
and larceny had been preserved. I am unable to agree
with
this. The new offence of obtaining property by
deception
created by section 15(1) of the Theft Act also contains
the
words 'belonging to another.' 'A person who by any
deception
dishonestly obtains property belonging to another,
with the
intention of permanently depriving the other of it'
commits that
offence. 'Belonging to another' in section 1(1)
and in section
15(1) in my view signifies no more than that,
at the time of the
appropriation or the obtaining, the
property belonged to another,
with the words 'belonging to
another' having the extended meaning
given by section 5.
The short answer to this contention on behalf
of the
appellant is that the money in the wallet which
he
appropriated belonged to another, to Mr. Occhi.
- 5 -
"There was no dispute about
the appellant's intention
being permanently to deprive Mr. Occhi
of the money.
"The four elements of the
offence of theft as defined
in the Theft Act were thus clearly
established and, in my
view, the Court of Appeal was right to
dismiss the appeal."
In the result, each of the
certified questions was answered in the
negative.
It will be seen that Viscount
Dilhorne's speech contains two
clear pronouncements, first that it
is no longer an ingredient of
the offence of theft that the taking
should be without the owner's
consent and second, that an
appropriation may occur even though
the owner has permitted or
consented to the property being taken.
The answer given to the
first certified question was in line with
those pronouncements, so
even though Viscount Dilhorne was of
opinion that the evidence
fell short of establishing that Mr. Occhi
had consented to the
taking of the £6 it was a matter of decision
that it made no
difference whether or not he had so consented.
Reg. v. Morris [1984] A.C. 320 involved two cases of price
label switching in a supermarket.
In the first case the defendent
had removed the price label from a
joint of meat and replaced it
with a label showing a lesser price
which he had removed from
another joint. He was detected at the
check-out point before he
had paid for the joint and later
convicted of theft contrary to
section 1(1) of the Theft Act. In
the second case the defendant
had in similar manner switched price
labels on goods in a
supermarket but was not arrested until after
he had passed the
check-out point and paid the lesser prices for
the goods. He was
charged with two counts of theft contrary to
section 1(1) and one
count of obtaining property by deception
contrary to section 15(1).
The jury convicted him on the counts of
theft, but by directions
of the recorder returned no verdict on
the section 15(1) count.
Appeals against conviction by both
defendants were dismissed by
the Court of Appeal (Criminal
Division) and by this House. Lord
Roskill, in the course of a
speech concurred in by Lords Fraser of
Tullybelton, Edmund-Davies,
Brandon of Oakbrook and Brightman,
at p. 331 referred to the
Lawrence case with apparent approval as
having set out the
four elements involved in the offence of theft
and as having
rejected the argument that there could not be theft
within section
1(1) if the owner of the property had consented to
the defendant's
acts. He observed that in Lawrence the House did
not have
to consider the precise meaning of "appropriation"
in
section 3(1) and continued:
"Mr. Denison submitted that
the phrase in section 3(1)
'any assumption by a person of the
rights' (my emphasis) 'of
an owner amounts to an
appropriation' must mean any
assumption of 'all the rights of an
owner.' Since neither
defendant had at the time of the removal of
the goods from
the shelves and of the label switching assumed all
the rights
of the owner, there was no appropriation and therefore
no
theft. Mr. Jeffreys for the prosecution, on the other
hand,
contended that the rights in this context only meant
any of
the rights. An owner of goods has many rights - they
have
been described as 'a bundle or package of rights.'
Mr.
Jeffreys contended that on a fair reading of the subsection
- 6 -
it cannot have been the intention
that every one of an
owner's rights had to be assumed by the
alleged thief before
an appropriation was proved and that
essential ingredient of
the offence of theft established.
"My Lords, if one reads the
words 'the rights' at the
opening of section 3(1) literally and in
isolation from the
rest of the section, Mr. Denison's submission
undoubtedly has
force. But the later words 'any later assumption
of a right'
seem to me to militate strongly against the
correctness of
the submission. Moreover the provisions of section
2(1)(a)
also seem to point in the same direction. It
follows
therefore that it is enough for the prosecution if they
have
proved in these cases the assumption by the [defendants]
of
any of the rights of the owner of the goods in
question,
that is to say, the supermarket concerned, it being
common
ground in these cases that the other three of the
four
elements mentioned in Viscount Dilhorne's speech in Reg.
v.
Lawrence (Alan) had been fully established.
"My Lords, Mr. Jeffreys
sought to argue that any
removal from the shelves of the
supermarket, even if
unaccompanied by label switching, was without
more an
appropriation. In one passage in his judgment in
Morris's
case, the learned Lord Chief Justice appears to
have
accepted the submission, for he said [1983] Q.B. 587, 596:
'it seems to us that in taking the
article from the
shelf the customer is indeed assuming one of
the
rights of the owner - the right to move the article
from
its position on the shelf to carry it to the
check-out.'
"With the utmost respect, I
cannot accept this
statement as correct. If one postulates an
honest customer
taking goods from a shelf to put in his or her
trolley to
take to the checkpoint there to pay the proper price, I
am
unable to see that any of these actions involves any
assumption
by the shopper of the rights of the supermarket.
In the context of
section 3(1), the concept of appropriation
in my view involves not
an act expressly or impliedly
authorised by the owner but an act
by way of adverse
interference with or usurpation of those rights.
When the
honest shopper acts as I have just described, he or she
is
acting with the implied authority of the owner of
the
supermarket to take the goods from the shelf, put them in
the
trolley, take them to the checkpoint and there pay the
correct
price, at which moment the property in the goods
will pass to the
shopper for the first time. It is with the
consent of the owners
of the supermarket, be that consent
express or implied, that the
shopper does these acts and
thus obtains at least control if not
actual possession of the
goods preparatory, at a later stage, to
obtaining the
property in them upon payment of the proper amount
at the
checkpoint. I do not think that section 3(1) envisages
any
such act as an "appropriation,' whatever may be the
meaning
of that word in other fields such as contract or sale
of
goods law.
- 7 -
"If, as I understand all your
Lordships to agree, the
concept of appropriation in section 3(1)
involves an element
of adverse interference with or usurpation of
some right of
the owner, it is necessary next to consider whether
that
requirement is satisfied in either of these cases. As I
have
already said, in my view mere removal from the
shelves
without more is not an appropriation. Further, if a
shopper
with some perverted sense of humour, intending only
to
create confusion and nothing more both for the supermarket
and
for other shoppers, switches labels, I do not think that
that act
of label switching alone is without more an
appropriation, though
it is not difficult to envisage some
cases of dishonest label
switching which could be. In cases
such as the present, it is in
truth a combination of these
actions, the removal from the shelf
and the switching of the
labels, which evidences adverse
interference with or
usurpation of the right of the owner. Those
acts, therefore,
amount to an appropriation and if they are
accompanied by
proof of the other three elements to which I have
referred,
the offence of theft is established. Further, if they
are
accompanied by other acts such as putting the goods so
removed
and relabelled into a receptable, whether a trolley
or the
shopper's own bag or basket, proof of appropriation
within section
3(1) becomes overwhelming. It is the doing
of one or more acts
which individually or collectively
amount to such adverse
interference with or usurpation of
the owner's rights which
constitute appropriation under
section 3(1) and I do not think it
matters where there is
more than one such act in which order the
successive acts
take place, or whether there is any interval of
time
between them. To suggest that it matters whether
the
mislabelling precedes or succeeds removal from the shelves
is
to reduce this branch of the law to an absurdity."
The answer given to the question
certified by the Court of Appeal
was this:
"There is a dishonest
appropriation for the purposes of the
Theft Act 1968 where by the
substitution of a price label
showing a lesser price on goods for
one showing a greater
price, a defendant either by that act alone
or by that act
in conjunction with another act or other acts
(whether done
before or after the substitution of the labels)
adversely
interferes with or usurps the right of the owner to
ensure
that the goods concerned are sold and paid for at
that
greater price."
In my opinion Lord Roskill was
undoubtedly right when he
said in the course of the passage quoted
that the assumption by
the defendant of any of the rights of an
owner could amount to
an appropriation within the meaning of
section 3(1), and that the
removal of an article from the shelf
and the changing of the price
label on it constituted the
assumption of one of the rights of the
owner and hence an
appropriation within the meaning of the
subsection. But there are
observations in the passage which, with
the greatest possible
respect to my noble and learned friend Lord
Roskill, I must regard
as unnecessary for the decision of the case
and as being
incorrect. In the first place, it seems to me that
the switching
of price labels on the article is in itself an
- 8 -
assumption of one of the rights of
the owner, whether or not it is
accompanied by some other act such
as removing the article from
the shelf and placing it in a basket
or trolley. No one but the
owner has the right to remove a price
label from an article or to
place a price label upon it. If anyone
else does so, he does an
act, as Lord Roskiil puts it, by way of
adverse interference with
or usurpation of that right. This is no
less so in the case of the
practical joker figured by Lord Roskill
than in the case of one
who makes the switch with dishonest
intent. The practical joker,
of course, is not guilty of theft
because he has not acted
dishonestly and does not intend to
deprive the owner permanently
of the article. So the label
switching in itself constitutes an
appropriation and so to have
held would have been sufficient for
the dismissal of both appeals.
On the facts of the two cases it
was unnecessary to decide
whether, as argued by Mr. Jeffreys, the
mere taking of the article
from the shelf and putting it in a
trolley or other receptacle
amounted to the assumption of one of
the rights of the owner, and
hence an appropriation. There was
much to be said in favour of the
view that it did, in respect that
doing so gave the shopper
control of the article and the capacity
to exclude any other
shopper from taking it. However, Lord
Roskill expressed the
opinion that it did not, on the ground that
the concept of
appropriation in the context of section 3(1)
"involves not an
act expressly or impliedly authorised by the owner
but an act by
way of adverse interference with or usurpation of
those rights."
While it is correct to say that appropriation for
purposes of
section 3(1) includes the latter sort of act, it does not
necessarily
follow that no other act can amount to an
appropriation and in
particular that no act expressly or impliedly
authorised by the
owner can in any circumstances do so. Indeed,
Lawrence v.
Commissioner of Metropolitan Police is a clear
decision to the
contrary since it laid down unequivocally that an
act may be an
appropriation notwithstanding that it is done with
the consent of
the owner. It does not appear to me that any
sensible distinction
can be made in this context between consent
and authorisation.
In the civil case of Dobson v.
General Accident Fire and
Life Assurance Corporation plc
[1990] 1 Q.B. 274 a Court of
Appeal consisting of Parker and
Bingham L.JJ. considered the
apparent conflict between Lawrence
and Morris and applied the
former decision. The facts were
that the plaintiff had insured
property with the defendant company
against inter alia "loss or
damage caused by theft." He
advertised for sale a watch and ring
at the total price of £5,950.
A rogue telephoned expressing an
interest in buying the articles
and the plaintiff provisionally agreed
with him that the payment
would be by a building society cheque
in the plaintiff's favour.
The rogue called on the plaintiff next
day and the watch and the
ring were handed over to him in
exchange for a building society
cheque for the agreed amount.
The plaintiff paid the cheque into
his bank, which informed him
that it was stolen and worthless. The
defendant company denied
liability under its policy of insurance
on the ground that the loss
of the watch and ring was not caused
by theft within the meaning
of the Act of 1968. The plaintiff
succeeded in the county court
in an action to recover the amount
of his loss, and the decision
was affirmed by the Court of Appeal.
One of the arguments for
the defendants was that there had been no
theft because the
plaintiff had agreed to the transaction with the
rogue and reliance
- 9 -
was place on Lords Roskill's
statement in Morris at p. 332 that
appropriation
"involves not an act
expressly or impliedly authorised by the
owner but an act by way
of adverse interference with or
usurpation of those rights."
In dealing with this argument Parker L.J. said, at p. 281:
'The difficulties caused by the
apparent conflict between
the decisions in Reg. v. Lawrence
(Alan) [1972] A.C. 626
and Reg. v. Morris (David)
[1984] A.C. 320 have provided,
not surprisingly, a basis for much
discussion by textbook
writers and contributors to articles to law
journals. It is,
however, clear that their Lordships in Reg. v.
Morris did not
regard anything said in that case as
conflicting with Reg. v.
Lawrence for it was specifically
referred to in Lord
Roskill's speech, with which the other members
of the
Judicial Committee all agreed, without disapproval
or
qualification. The only comment made was that, in Reg.
v.
Lawrence, the House did not have to consider the
precise
meaning of 'appropriation' in section 3(1) of the Act
of
1968. With respect, I find this comment hard to follow in
the
light of the first of the questions asked in Reg. v.
Lawrence
and the answer to it, the passages from Viscount
Dilhorne's speech
already cited, the fact that it was
specifically argued
'appropriates is meant in a pejorative,
rather than a neutral,
sense in that the appropriation is
against the will of the owner,'
and finally that dishonesty
was common ground. I would have
supposed that the
question in Reg. v. Lawrence was whether
appropriation
necessarily involved an absence of consent."
Parker L.J. then said that he
found other difficulties in Lord
Roskill's speech in Morris,
and after setting out the facts of the
case and quoting a long
passage from that speech at p. 332 and
also the answer to the
certified question he continued, at p. 283:
"In the passage at p. 332
Lord Roskill, as it seems to
me, impliedly envisages that mere
label switching could be
an appropriation and that this is so is
confirmed by the
answer to the certified question which
specifically uses the
words 'either by that act alone.' What then
is it which
would make label switching alone something which
adversely
affects or usurps the right of the owner? At p. 332
it
appears to be envisaged that it will depend upon the
question
whether the label switching was dishonest and
coupled with the
other elements of the offence of theft or
was due to a perverted
sense of humour. This, however,
appears to run together the
elements of dishonesty and
appropriation when it is clear from
Reg. v. Lawrence (Alan)
[1972] A.C. 626 that they are
separate. That the two
elements were indeed, at any rate to some
extent, run
together is plain from the fact that the answer to
the
certified question begins with the words 'There is a
dishonest
appropriation.'
"Moreover, on general
principles, it would in my
judgment be a plain interference with
or usurpation of an
- 10 -
owner's rights by the customer if
he were to remove a label
which the owner had placed on goods or
put another label
on. It would be a trespass to goods and it would
be
usurping the owner's rights, for only he would have any
right
to do such an act and no one could contend that there
was any
implied consent or authority to a customer to do
any such thing.
There would thus be an appropriation. In
the case of the customer
with a perverted sense of humour
there would however be no theft
for there would probably
be no dishonesty and certainly no intent
permanently to
deprive the owner of the goods themselves.
"The case of the customer who
simply removes goods
from the shelves is of course different
because the basis on
which a supermarket is run is that customers
certainly have
the consent of the owner to take goods from the
shelves
and take them to the checkout point there to pay
the
proper price for them. Suppose, however, that there were
no
such consent - in, for example, a shop where goods on
display were
to be taken from the shelves only by the
attendant. In such a case
a customer who took from the
shelves would clearly be usurping the
right of the owner.
Indeed he would be doing so if he did no more
than move
an item from one place on a shelf to another. The
only
difference appears to be that in the one case there
is
consent and in the other there is not. Since, however, it
was
held in Reg. v. Lawrence (Alan) [1972] A.C. 626 that
consent
is not relevant to appropriation there must, one
would have
supposed, be no difference between the two
cases on that aspect of
the offence.
'There are further matters in Reg.
v. Morris (David)
A.C. 320 in which I find difficulty. I
mention only two.
The first is the observations made on Reg. v.
McPherson
[1973] Crim.L.R. 191. That was a case in which
the
defendant took two bottles of whisky from the shelves and
put
them in her shopping bag. The sole question in issue
was whether
there had been an appropriation. It was held
in the Court of
Appeal that there had been. As to this
Lord Roskill said, at p.
333:
'That was not, of course, a label
switching case, but
it is a plain case of appropriation effected
by the
combination of the acts of removing the goods from
the
shelf and of concealing them in the shopping bag.
Reg. v.
McPherson is to my mind clearly correctly
decided as are all
the cases which have followed it.
It is wholly consistent with the
principles which I
have endeavoured to state in this speech.'
"Reference to the transcript
of the judgment in that
case however reveals that the decision did
not turn on
concealment in the shopping bag but was expressly upon
the
ground that the goods were appropriated when they were
taken
from the shelves. This indeed was recognised in
Anderton v.
Wish (Note) (1980) 72 Cr.App.R. 23, 25, where
Roskill L.J.
giving the judgment of the court said:
- 11 -
'The Court of Appeal . . . held .
. . they were guilty
of theft because when the bottles were taken
there
was a dishonest appropriation. If that decision is
right
and, with respect, it seems to me plainly right .
"Furthermore in Reg. v.
Morris (David) [1984] A.C. 320 Lord
Roskill said, at p. 334: '
. . . I understand all your
Lordships to agree that Anderton v.
Wish . . . was rightly
decided for the reasons given."'
Later Parker L.J. quoted this
passage from the speech of
Lord Roskill in Morris, at p.
334:
"without going into further
detail I respectfully suggest that
it is on any view wrong to
introduce into this branch of the
criminal law questions whether
particular contracts are void
or voidable on the ground of mistake
or fraud or whether
any mistake is sufficiently fundamental to
vitiate a
contract. These difficult questions should so far as
possible
be confined to those fields of law to which they
are
immediately relevant and I do not regard them as
relevant
questions under the Theft Act 1968."
And continued:
"After anxious consideration
I have reached the conclusion
that whatever Reg. v. Morris
did decide it cannot be
regarded as having overruled the very
plain decision in Reg.
v. Lawrence (Alan) [1972] A.C. 626
that appropriation can
occur even if the owner consents and that
Reg. v. Morris
itself makes it plain that it is no defence
to say that the
property passed under a voidable contract."
On this ground Parker L.J. dismissed the appeal.
Bingham L.J., at p. 287, plainly
took the view that a
customer in a supermarket assumes some of the
rights of an owner
when he takes goods into his possession and
exercises control over
them by putting them in a basket or
trolley, and thus appropriates
them. Later, at p. 289, he
mentioned that in Lord Roskill's
speech in Morris no
reference was made to Viscount Dilhorne's
ruling in Lawrence
that appropriation might occur even though the
owner has permitted
or consented to the property being taken, and
continued:
"I do not find it easy to
reconcile this ruling of Viscount
Dilhorne, which was as I
understand central to the answer
which the House gave to the
certified question, with the
reasoning of the House in Reg. v.
Morris (David) [1984] A.C.
320. Since, however, the House in
Reg. v. Morris
considered that there had plainly been an
appropriation in
Reg. v. Lawrence (Alan) [1972] A.C. 626,
this must (I think)
have been because the Italian student,
although he had
permitted or allowed his money to be taken, had
not in
truth consented to the taxi driver taking anything in
excess
of the correct fare. This is not wholly
satisfactory
reconciliation, since it might be said that a
supermarket
consents to customers taking goods from its shelves
only
- 12 -
when they honestly intend to pay
and not otherwise. On
the facts of the present case, however, it
can be said, by
analogy with Reg. v. Lawrence, that
although the plaintiff
permitted and allowed his property to be
taken by the third
party, he had not in truth consented to the
third party
becoming owner without giving a valid draft drawn by
the
building society for the price. On this basis I conclude
that
the plaintiff is able to show an appropriation sufficient
to
satisfy section 1(1) of the Theft Act 1968 when the third
party
accepted delivery of the article."
It was argued for the respondent
in the present appeal that
the case of Dobson was wrongly
decided. I disagree, and on the
contrary find myself in full
agreement with those parts of the
judgment of Parker L.J. to which
I have referred. As regards the
attempted reconciliation by
Bingham L.J. of the reasoning in
Morris with the ruling in
Lawrence it appears to me that the
suggested basis of
reconciliation, which is essentially speculative, is
unsound. The
actual decision in Morris was correct, but it was
erroneous,
in addition to being unnecessary for the decision, to
indicate
that an act expressly or impliedly authorised by the owner
could
never amount to an appropriation. There is no material
distinction
between the facts in Dobson and those in the present
case.
In each case the owner of the goods was induced by fraud
to part
with them to the rogue. Lawrence makes it clear that
consent
to or authorisation by the owner of the taking by the
rogue is
irrelevant. The taking amounted to an appropriation
within the
meaning of section 1(1) of the Theft Act. Lawrence
also
makes it clear that it is no less irrelevant that what
happened
may also have constituted the offence of obtaining
property by
deception under section 15(1) of the Act.
In my opinion it serves no useful
purpose at the present
time to seek to construe the relevant
provisions of the Theft Act
by reference to the Report which
preceded it, namely the Eighth
Report of the Criminal Law Revision
Committee (1966) Cmnd.
2977. The decision in Lawrence was a
clear decision of this
House upon the construction of the word
"appropriate" in section
1(1) of the Act, which had
stood for twelve years when doubt was
thrown upon it by obiter
dicta in Morris. Lawrence must be
regarded as authoritative
and correct, and there is no question of
it now being right to
depart from it.
It is desirable to say a few words
about the cases of Reg.
v. Skipp 1975 Crim.L.R. 114 and
Reg. v. Fritschy 1985 Crim.L.R.
745. In the first case the
defendant, posing as a haulage
contractor, was instructed to
collect consignments of goods from
three different places and
deliver them to a certain destination.
He collected the goods and
made off with them. The Court of
Appeal, on his appeal against his
conviction for theft upon one
count covering all three
consignments, on the ground that the
count was bad for duplicity
in that there were three separate
appropriations, held that there
had been no appropriation until the
last of the goods were loaded,
or probably until the defendant
deviated from the route to the
proper destination. In the second
case the defendant was
instructed by the owner to collect a
quantity of Krugerrands in
London and deliver them to a safe
deposit in Switzerland. Although
the short report is not very clear
on the matter, it seems that
the defendant, having collected the
- 13 -
coins, took them to Switzerland
and there made away with them.
The trial judge directed the jury
if at the time he collected the
coins the defendant had formed the
dishonest intention of keeping
them for himself he was guilty of
theft. The Court of Appeal
overturned the resultant conviction for
theft on the ground,
following Morris, that there had been
no appropriation in England
because the defendant had there taken
possession of the
Krugerrands with the owner's authority. In my
opinion both these
cases were inconsistent with Lawrence
and were wrongly decided.
There were cited to your Lordships
a number of cases
involving the abstraction of moneys from a
limited company by a
person who was in a position to give the
consent of the company
to the abstraction. It is sufficient to say
that I agree with what
my noble and learned friend Lord
Browne-Wilkinson has to say
about these cases in the speech to be
delivered by him, and that
in my opinion a person who thus
procures the company's consent
dishonestly and with the intention
of permanently depriving the
company of the money is guilty of
theft contrary to section 1(1)
of the Act of 1968.
My Lords, for the reasons which I
have given I would
answer branch (a) of the certified question in
the affirmative and
branch (b) in the negative, and allow the
appeal.
LORD JAUNCEY OF TULLICHETTLE
My Lords,
I have had the advantage of
reading in draft the speeches
of my noble and learned friends,
Lord Keith of Kinkel and Lord
Browne-Wilkinson, and for the
reasons which they give I agree that
the appeal should be allowed
and the questions answered in the
way in which my noble and
learned friend, Lord Keith of Kinkel,
proposes.
LORD LOWRY
My Lords,
This is an appeal brought by the
Director of Public
Prosecutions with the leave of the Court of
Appeal (Criminal
Division) from a decision of that court on 22
April 1991 allowing
the appeal of the present respondent, Edwin
Gomez, against his
convictions on 20 and 24 April 1990 at
Isleworth Crown Court on
two counts of theft, for which he
received concurrent sentences of
2 years' imprisonment, and
quashing those convictions.
The facts are as follows. Gomez
was the assistant manager
of the Ealing Branch ("the shop")
of a chain of retail electrical
goods shops trading as "Bennetts
Retail". On 14 September 1989
an acquaintance, Jit Ballay,
asked Gomez, and Gomez agreed, to
supply goods from the shop in
exchange for two undated building
- 14 -
society cheques for £7,950
and £9,250, which both Ballay and
Gomez knew to be stolen
and worthless cheques. Gomez then
prepared and submitted to the
manager of the shop, Mr. Gilberd, a
list of goods to the value of
£7,950, telling him that the list
represented a bona fide
order placed by one Johal and asking him
to authorise the supply
of the goods against a building society
cheque for that amount. On
being told by the manager to check
with the bank, he pretended to
have done so and assured the
manager that the cheque was "as
good as cash", whereupon the
manager authorised the
transaction. On 20 September Gomez paid
the cheque into his
employers' bank and on 23 September Ballay
took possession of the
listed goods. Gomez helped to load the
goods into Ballay's van. A
further consignment of goods was
ordered and supplied against the
second stolen cheque, Mr. Gilberd
having agreed to the transaction
without further inquiry.
The judge's note of Mr. Gilberd's
evidence when he was
cross-examined at the trial included the
following:
"I was involved in both
transactions. Exceptionally high
orders. I would expect to be
consulted as I was. I
authorised discount. I authorised release. I
expressly
authorised this."
The manager at all times believed
that the stolen cheques were
genuine. On 5 October 1989, however,
both cheques were returned
by the bank marked "Orders not to
pay. Stolen cheque."
Gomez, Ballay and Jatindur Rai,
another employee of
Bennetts Retail, were arrested and jointly
tried on an indictment
alleging two counts of handling the stolen
cheques against Ballay
(counts 1 and 2), one count of conspiracy
(count 3, which was not
proceeded with) and two counts of theft of
the electrical goods
against all the defendants (counts 4 and 5).
All three were found
guilty as charged, save that Gomez had
pleaded guilty to count 4
after a ruling against him on a legal
submission. He had
continued to plead not guilty in respect of
count 5, but the only
defence made after the legal ruling was the
defence of duress,
which was rejected by the jury and with which
the Court of
Appeal was not concerned.
Under the law before 1968 the
facts of this case would
have led to charges, to which there would
have been no defence,
of obtaining goods by false pretences. Since
the passing of the
Theft Act 1968 the accused could equally well
have been
prosecuted successfully for obtaining property by
deception
contrary to section 15 of the Act. Under the old law
they could
not have been found guilty of larceny, because the
seller agreed to
transfer the property in the goods to Ballay, and
the fact that the
seller's agreement was obtained by a fraud does
not affect that
conclusion. Indeed, if the seller's consent could
have been vitiated
in that way, Parliament would never have needed
to create the
statutory offence of obtaining by false pretences.
The accused in
this case, however, were prosecuted for theft under
section 1(1) of
the Act and were convicted notwithstanding the
submission of
counsel for the defence to the effect that the crime
for which the
accused were indicted did not amount to theft
because the seller
had consented to sell the property, albeit
consent had been
obtained by fraud, as alleged. When Gomez
appealed, the Court
- 15 -
of Appeal upheld that submission
and quashed his convictions. In
order to restore those
convictions, the Crown must say that the
Theft Act has altered the
law in such a way (among others) that
anyone who, by a false
representation such as a worthless cheque,
induces an owner to
sell property is thereby guilty of stealing.
Section 1(1) of the Theft Act 1968 provides:
"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."
This appeal turns on the meaning
in that subsection of the word
"appropriates" and will
involve the consideration, among other
things, of conflicting
statements in this House, which I shall come
back to at a later
stage. One was by Viscount Dilhorne in R. v.
Lawrence
[1972] AC 626 ("Lawrence") where, having noted the
absence
from the subsection of the words "without the consent of
the
owner", he said at p. 632A:
"Parliament by the omission
of these words has relieved the
prosecution of the burden of
establishing that the taking was
without the owner's consent. That
is no longer an
ingredient of the offence."
Lord Roskill, on the other hand,
in R. v. Morris [1984] A.C. 320
("Morris") said
at p. 332D):
"In the context of section
3(1), the concept of appropriation
in my view involves not an act
expressly or impliedly
authorised by the owner but an act by way
of adverse
interference with or usurpation of those rights."
The certified question in this appeal is -
"When theft is alleged and
that which is alleged to be
stolen passes to the defendant with
the consent of the
owner, but that consent has been obtained by a
false
representation, has
an appropriation within the
meaning of section 1(1) of
the Theft Act 1968 taken place, or
must such a passing of property
necessarily involve an
element of adverse interference with or
usurpation of some
right of the owner?"
I can say now that I would answer
(a) "No" and (b) "No, because
such a passing of
property does not involve an appropriation".
Since the question turns on the
meaning of the word
"appropriates" in section 1(1) of
the Theft Act 1968, the problem
is therefore one of statutory
interpretation and it will be helpful
to start by setting out the
immediately relevant provisions of the
Act:-
"Definition of 'theft'
- 16 -
"l.-(l) 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.
(2.) It is immaterial whether the
appropriation is made
with a view to gain, or is made for the
thief's own benefit.
(3.) The five following sections
of this Act shall have
effect as regards the interpretation and
operation of this
section (and, except as otherwise provided by
this Act, shall
apply only for purposes of this section).
"2.-(l) 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; or
if he appropriates the property
in the belief that he
would have the other's consent if
the other knew of the
appropriation and the circumstances of
it; or
(c) (except where the property
came to him as trustee or
personal representative) if he
appropriates the property in
the belief that the person to whom
the property belongs
cannot be discovered by taking reasonable
steps.
(2) A person's appropriation of
property belonging to
another may be dishonest notwithstanding
that he is willing
to pay for the property.
"3.-(1) Any assumption by a person of the rights of an
owner amounts to an appropriation,
and this includes, where
he has come by the property (innocently
or not) without
stealing it, any later assumption of a right to it
by keeping
or dealing with it as owner.
(2) Where property or a right or
interest in property is
or purports to be transferred for value to
a person acting in
good faith, no later assumption by him of
rights which he
believed himself to be acquiring shall, by reason
of any
defect in the transferor's title, amount to theft of
the
property.
"4.-(1) 'Property'
includes money and all other
property, real or
personal, including things in action and
other intangible
property.
(2) A person cannot steal land, or
things forming part of
land and severed from it by him or by his
directions, except
in the following cases, that is to say -
(a) when he is a trustee or
personal representative, or is
authorised by power of attorney, or
as liquidator of a
company, or otherwise, to sell or dispose of
land belonging
to another, and he appropriates the land or
anything forming
part of it by dealing with it in breach of the
confidence
reposed in him; or
- 17 -
(b) when he is not in possession
of the land and
appropriates anything forming part of the land by
severing it
or causing it to be severed, or after it has been
severed; or
(c) when, being in possession of
the land under a tenancy,
he appropriates the whole or part of any
fixture or
structure let to be used with the land.
For purposes of this subsection
'land' does not include
incorporeal hereditaments; 'tenancy' means
a tenancy for
years or any less period and includes an agreement
for such
a tenancy, but a person who after the end of a
tenancy
remains in possession as statutory tenant or otherwise is
to
be treated as having possession under the tenancy, and
'let'
shall be construed accordingly.
. . .
"5.-(1) Property shall be regarded as belonging to any
person having possession or
control of it, or having in it any
proprietary right or interest
(not being an equitable interest
arising only from an agreement to
transfer or grant an
interest).
. . .
"6.-(1) 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.
(2) Without prejudice to the
generality of subsection (1)
above, where a person, having
possession or control (lawfully
or not) of property belonging to
another, parts with the
property under a condition as to its
return which he may
not be able to perform, this (if done for
purposes of his
own and without the other's authority) amounts to
treating
the property as his own to dispose of regardless of
the
other's rights.
...”
Fraud and blackmail
"15.-(1) A person who by any deception dishonestly
obtains property belonging to
another, with the intention of
permanently depriving the other of
it, shall on conviction on
indictment be liable to imprisonment
for a term not
exceeding ten years.
(2) For purposes of this section a
person is to be treated
as obtaining property if he obtains
ownership, possession or
control of it, and 'obtain' includes
obtaining for another or
enabling another to obtain or to retain.
- 18 -
(3) Section 6 above shall apply
for purposes of this
section, with the necessary adaptation of the
reference to
appropriating, as it applies for purposes of section
1.
(4) For purposes of this section
'deception' means any
deception (whether deliberate or reckless)
by words or
conduct as to fact or as to law, including a deception
as to
the present intentions of the person using the deception
or
any other person."
To be guilty of theft the
offender, as I shall call him, must
act dishonestly and must have
the intention of permanently
depriving the owner of property.
Section 1(3) shows that in order
to interpret the word
"appropriates" (and thereby to define theft),
sections 1
to 6 must be read together. The ordinary and natural
meaning of
"appropriate" is to take for oneself, or to treat as
one's
own, property which belongs to someone else. The primary
dictionary
meaning is "take possession of, take to oneself,
especially
without authority", and that is in my opinion the
meaning
which the word bears in section 1(1). The act of
appropriating
property is a one-sided act, done without the consent
or authority
of the owner. And, if the owner consents to transfer
property to
the offender or to a third party, the offender does not
appropriate
the property, even if the owner's consent has been
obtained by
fraud. This statement represents the old doctrine in
regard to
obtaining property by false pretences, to which I shall
advert
presently.
The references in sections 2, 3
and 4 qualify but do not
impair the meaning of the words
"appropriates" and "appropriation",
as they
are used in section 1. Section 2(1) does not change the
meaning of
appropriation but it tells us when appropriation is not
to be
regarded as dishonest (and so does not amount to
stealing).
Paragraphs (a), (b) and (c) of the sub-section all
describe
unilateral, though honest, acts of the appropriator, who
takes the
property for himself and treats it as his own. For the
benefit of
those who would suggest that section 2(1)(b) shows
that
appropriation is something which can be done with the
consent of
the owner, I would paraphrase that provision by saying
"if he
appropriates the property in the belief that he would
have the
other's consent if the other knew what he had done and
the
circumstances in which he did it." The opportunity for
confusion
arises from the use of the word "appropriates"
in a clearly
unilateral sense followed by the word "appropriation"
(describing
what the appropriator has unilaterally done)
hypothetically linked
to the idea of consent.
Coming now to section 3, the
primary meaning of
"assumption" is "taking
on oneself", again a unilateral act, and this
meaning is
consistent with subsections (1) and (2). To use the
word in its
secondary, neutral sense would neutralise the word
"appropriation",
to which assumption is here equated, and would
lead to a number of
strange results. Incidentally, I can see no
magic in the words "an
owner" in subsection (1). Every case in
real life must
involve the owner or the person described in
section
5(1); "the rights" may mean "all the
rights", which would be the
normal grammatical meaning, or
(less probably, in my opinion) "any
rights": see R.
v. Morris [1984] A.C. at p. 332H. For present
- 19 -
purposes it does not appear to
matter; the word "appropriate" does
not on either
interpretation acquire the meaning contended for by
the Crown.
Still looking at section 3(1), I point out that "any
later
assumption of a right to it" (that is, a right to the
property)
amounts to an appropriation of a right to it and that
normally "a
right to it" means a right to the property
and not a right in it".
Section 3(2) protects an innocent
purchaser from an accusation of
theft when, having bought in good
faith from someone with a
defective title, he later treats the
property as his own.
Section 4(2) lists three
exceptions to the general proposition
that a person cannot steal
land etc. The word "appropriates" in
paragraph (a), (b)
and (c) is thoroughly consistent with unilateral
action.
Section 6(1) introduces a deemed
intention of permanently
depriving the owner of his property when
the person appropriating
the property "for the time being",
as one might say, intends "to
treat the thing as his own to
dispose of regardless of the other's
rights". Here again the
offender's act is unilateral and the same
can clearly be said of
section 6(2).
Mr. Hacking Q.C., for the
respondent, also drew attention to
sections 24(4) and 28(6) of the
Theft Act, which can be required
only on the basis that section
15, in at least some respects is not
dealing with theft. He also
pointed out the amendment in section
26 of the Criminal Justice
Act 1991 (effective from 1 October
1992) reducing the maximum term
of imprisonment for theft from
10 to 7 years, thereby
distinguishing theft from obtaining by
deception, the maximum term
for which remains at 10 years.
Accordingly, reading sections 1 to
6 as a whole, and also
taking into account sections 24(4) and
28(6) and the 1991
amendment, the ordinary and natural meaning of
"appropriates" in
section 1(1) is confirmed. So clear is
this conclusion to my mind
that, notwithstanding anything which
has been said in other cases,
I would be very slow to concede that
the word "appropriates" in
section 1(1) of the Theft Act
is in its context ambiguous. But, as
I have indicated, the Crown
case requires that there must be
ambiguity and further requires
that the ambiguity must be resolved
against the ordinary meaning
of the word and in favour of the
neutral meaning preferred and
required by the Crown's argument.
Therefore, my Lords, I am
willing for the purpose of argument to
treat the word
"appropriates" as ambiguous in its context and, on
that
basis, following the principles enunciated in
Black-Clawson
International Ltd. v. Papierwerke
Waldhof-Aschaftenburg A.G.
[1975] A.C. 591 and the example of
Lord Ackner in R. v. Kassim"
[1992] 1 A.C. 9 at p. 16,
where the construction of section 20(2)
of the Theft Act 1968 was
the question at issue, I turn, for such
guidance as it may afford,
to the Eighth Report of the Criminal
Law Revision Committee,
"Theft and Related Offences" (1966)
(Cmnd. 2977).
While the Report may not
completely resolve the question
for your Lordships, it provides in
the first place a very useful
summary of the state of the law in
1966. It also discusses in
some detail the shortcomings of the law
in regard to theft and
kindred offences, as they appeared to the
Committee, and it
proposes remedies. A reading of the Theft Act,
which was based
- 20 -
on the draft Bill annexed to the
Report, leads me to the
conclusion that, when using the very words
of the draft,
Parliament intended to implement the Committee's
thinking. Of
course, if the words of the Act clearly achieve a
different result
from that which seemed to be intended by the
Committee, it is
the words which must prevail and strained
constructions must not
be adopted in order to give effect to the
Report.
In paragraph 15 the Committee
discuss "the chief defects in
the existing law of larceny",
including its failure to deal with
certain kinds of dishonesty. In
paragraph 16 they point out that
the defects stem from regarding
larceny as a violation of
possession and not of rights of
ownership, with the offence
depending on a taking of the
property. The notion of taking had
been extended both judicially
and by statute and examples of
statutory extension by way of
sections 17(l)(b) (embezzlement) and
20(1)(iv) (fraudulent
conversion) of the Larceny Act 1916 are given
in paragraph 17. The
Committee observed at paragraph 18 that
the fact that
misappropriation of property was dealt with under
the three
separate heads of larceny, embezzlement and fraudulent
conversion
inevitably made for difficulty and complication.
Paragraph 19
introduces what will be seen as a specially relevant
topic.
"19. In addition to the
division of misappropriation into
three main offences the
distinction between larceny and
obtaining by false pretences
contrary to 1916 s. 32 is
sometimes very subtle. A person commits
the latter
offence if he
'by any false pretence . . . with
intent to defraud,
obtains from any other person any chattel,
money, or
valuable security, or causes or procures any money to
be
paid, or any chattel or valuable security to be
delivered to
himself or to any other person for the
use or benefit or on
account of himself or any other
person'.
'The essential difference between
this offence and larceny is
that in larceny the victim does not
part with the ownership
but in obtaining by false pretences he
does. But since
"obtaining the possession by any trick'
amounts to a taking
for the purpose of larceny, it is notoriously
difficult to draw
any logical distinction between larceny by a
trick and
obtaining by false pretences and to decide whether
a
particular case amounts to the one offence or the other.
The
matter is made worse by the fact that the two
offences are
construed as being mutually exclusive; and the
resulting
difficulties are not entirely overcome by the
provisions in 1916
s. 44 as to the verdicts open to the jury
when they find that the
accused committed an offence
different from that charged (cf.
paragraph 90)."
Paragraph 21 exposes a gap,
pointing out that an innocent
acquisition followed by a dishonest
decision to keep or dispose of
the property was in general not
larceny and that larceny by
finding was committed only where at
the time of the finding the
finder believed that the owner
could be discovered by taking
reasonable steps. After discussing
various loopholes in the law of
- 21 -
theft the Committee proceeded in
what may be seen as a key
paragraph.
"30. The essence of the
offence of fraudulent conversion
under 1916 s. 20(1)(iv) (referred
to in paragraph 17) is
misappropriation of property by a person
who has possession
on behalf of somebody else. The offence was
created by
the Larceny Act 1901 (c. 10) in order to provide for
cases
of dishonest misappropriation which were not covered
by
larceny (in particular because there was no taking)
or
embezzlement (because the offender was not a clerk or
servant)
or by other statutory offences of fraudulent
conversion which
depended on the offender being in a
special position, for example
a trustee. The language of s.
20(l)(iv)(b) is wide enough to cover
larceny by a bailee or
part owner and embezzlement; but it is a
matter of dispute
whether it does so or whether it is limited to
those types
of misappropriation, originally not criminal, for
which the
1901 Act was intended to provide. Whichever is the
true
view, the general offence of fraudulent conversion has
proved
valuable, covering as it does in clear language a
wide range of
circumstances in which property may be
misappropriated. As will be
seen (paragraph 35), the idea
contained in the words 'fraudulently
converts to his own use
or benefit, or the use or benefit of any
other person'
corresponds to what we propose should be the essence
of
the new offence of theft."
Paragraph 33 states an important conclusion:
'The committee generally are
strongly of opinion that
larceny, embezzlement and fraudulent
conversion should be
replaced by a single new offence of theft.
The important
element of them all is undoubtedly the
dishonest
appropriation of another person's property - the
treating of
'tuum' as 'meum'; and we think it not only logical,
but right
in principle, to make this the central element of
the
offence. In doing so the law would concentrate on what
the
accused dishonestly achieved or attempted to achieve and
not
on the means - taking or otherwise - which he used in
order to do
so. This would avoid multiplicity of offences.
Accordingly clause
1(1) of the draft Bill 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, 'steals' and 'stolen' shall be construed
accordingly.'
"This will be the main
provision in the definition of theft,
replacing the definition in
1916 s. 1(1). There are ancillary
definitions in clause 1 and in
clauses 2-5 which are referred
to in the notes. The more important
elements of the
definition of the new offence are referred to in
paragraphs
34-58."
This conclusion, in order to
create a single comprehensive offence
in place of larceny,
embezzlement and fraudulent conversion,
makes "appropriation"
(the treating of "tuum" as "meum") the key
- 22 -
element in place of taking, and it
is the activity expressed by the
word "appropriation"
which dispenses with the need for the phrase
"without the
consent of the owner", which preceded the words
"takes
and carries away" in the old definition of larceny in
section
1(1) of the 1916 Act. The opening lines of paragraph 34
further
elucidate the Committee's thinking:
"We hope, and believe, that
the concept of 'dishonest
appropriation' will be easily understood
even without the aid
of further definition. But there is a partial
definition of
'appropriates' in clause 3(1), which is included
partly to
indicate that this is the familiar concept of conversion
but
also for particular reasons later to be mentioned. Clause
3(1)
provides that -
'Any assumption by a person of the
rights of an
owner amounts to an appropriation . . .'
"It seems to us natural to
refer to the act of stealing in
ordinary cases as 'appropriation'.
We see no reason why the
word should seem strange for more than a
short time. It is
moreover not a new word to use in connection
with theft.
Sir James Fitzjames Stephen (afterwards Stephen J.),
in his
'General View of the Criminal Law' (1863 edition, p.
129),
suggested as a definition of theft:
'To steal is unlawfully, and with
intent to defraud, by
taking, by embezzlement, by obtaining by
false
pretences, or in any other manner whatever to
appropriate
to the use of any person any property
whatever real or personal in
possession or in action,
so as to deprive any other person of the
advantage of
any beneficial interest at law or in equity, which
he
may have therein.'
"Sir James Stephen added:
'The effect of adopting this
definition would be to
include under one description all the
cognate offences
which at present make up the crime of theft.
Its
terms would include larceny, embezzlement, false
pretences,
larceny by bailees, fraudulent breaches of
trust, and offences by
factors, agents, and bankers,
and thus five or six useless and
intricate distinctions
between cognate crimes would be
abolished'."
(I digress for a moment to point
out that, while this proposal
would have included obtaining by
false pretences within the
definition of stealing, that was not
the option preferred by the
Committee, as your Lordships will have
noted.)
The next four paragraphs are
important in the Committee's
scheme of things and I must ask your
Lordships' indulgence while I
quote them in full:
"35. The idea of dishonest
appropriation which underlies
the new offence of theft
corresponds, as mentioned in
paragraph 30, to the idea in the
words 'fraudulently converts
to his own use or benefit, or the use
or benefit of any
- 23 -
other person' in the definition of
fraudulent conversion under
1916 s. 20(l)(iv). The new offence
will in fact consist of
the present offence of fraudulent
conversion without the
requirement that the offender should, at
the time of the
conversion, be in possession of the property
either in the
circumstances mentioned in s. 20(1)(iv) or at all.
With the
removal of this requirement the offence will extend
to
ordinary stealing by taking property from another's
possession.
The effect will be as if fraudulent conversion
were widened to
include the whole of larceny and
embezzlement; the new offence
will indeed include conduct
which may not be criminal under the
present law such as
the dishonest appropriation by a parent of
things taken and
brought home by a child under the age of
criminal
responsibility (cf. Walters v. Lunt (1951), 35 Cr.
App. R.
94). The expression 'dishonestly appropriates' in clause
1(1)
means the same as 'fraudulently converts to his own use
or
benefit, or for the use or benefit of any other person' in
1916
s. 20(1)(iv); but the former expression is shorter and,
we hope,
clearer. There is an argument for keeping the
word 'converts'
because it is well understood. But it is a
lawyers' word, and
those not used to legal language might
naturally think that it
meant changing something or
exchanging property for other
property. 'Appropriates'
seems altogether a better word.
"36. The offence will also
cover cases of dishonest
retention or disposal after an innocent
acquisition such as
are mentioned in paragraphs 21-5. This result
is probably
implicit in the concept of appropriation (or
'conversion'); but
it is made explicit by the provision in clause
3(1) that a
person's assumption of the rights of an owner
'includes,
where he has come by the property (innocently or
not)
without stealing it, any later assumption of a right to it
by
keeping or dealing with it as owner'. It seems natural
to
regard dishonestly keeping or dealing with the property
as
theft (as it is now in the case of bailees). This has
the
advantage that the cases referred to will be brought
within
the single concept of dishonest appropriation. If
taking
were to be kept as the basis of the offence, it would
be
necessary to create a separate offence of dishonest
retention
or disposal in order to deal with these cases.
"37. We propose however that
there should be a special
exception for one case. A person may buy
something in
good faith, but may find out afterwards that the
seller had
no title to it, perhaps because the seller or somebody
else
stole it. If the buyer nevertheless keeps the thing
or
otherwise deals with it as owner, he could, on the
principles
stated above, be guilty of theft. It is arguable that
this
would be right; but on the whole it seems to us
that,
whatever view is taken of the buyer's moral duty, the
law
would be too strict if it made him guilty of theft.
Clause
3(2) accordingly ensures that a later assumption of
ownership
in such circumstances will not amount to theft.
"38. The sub-committee for a
considerable time proposed
that the general offence of theft
should be made to cover
the present offence of obtaining by false
pretences under
- 24 -
1916 s. 32(1). It might seem
appropriate to extend theft in
this way in order to make it cover
as many ways as
possible of getting property dishonestly. But in
the end the
sub-committee gave up the idea (to the regret of
some
members), and the full committee agreed. In spite of
its
attractions, it seemed to the majority of the committee
that
the scheme would be unsatisfactory. Obtaining by false
pretences
is ordinarily thought of as different from theft,
because in the
former the owner in fact consents to part
with his ownership; a
bogus beggar is regarded as a rogue
but not as a thief, and so are
his less petty counterparts.
To create a new offence of theft to
include conduct which
ordinary people would find difficult to
regard as theft would
be a mistake. The unnaturalness of including
obtaining by
false pretences in theft is emphasized by the
difficulty of
drafting a satisfactory definition to cover both
kinds of
conduct. The examination by Mr. Griffith-Jones's
sub-sub-
committee, mentioned in paragraph 3, showed also that
it
would be difficult to frame an indictment charging theft
by
false pretences."
The Committee's proposed remedies
for the defects of the
law as they found it appear clearly from
the foregoing paragraphs.
"Fraudulent conversion" is
accepted as the starting point for the
new and comprehensive
definition of theft and "dishonest
appropriation" is
chosen as a synonym. Both expressions embody
the notion of an
adverse unilateral act done to the prejudice of
the owner and
without his authority; indeed, fraudulent conversion
can have no
other meaning. Paragraph 38 shows that the
Committee considered
the idea, once recommended by Sir James
Fitzjames Stephen, of
making "theft" cover the offence of
obtaining by false
pretences. But that idea was ultimately
abandoned for the reasons
there mentioned.
The Committee's philosophy with
regard to obtaining by
false pretences and its near relation,
larceny by a trick, is
expounded in paragraphs 86 to 90 of the
Report. Draft clause 12
was enacted as section 15 (which I have
reproduced above) and
section 16 of the Theft Act and has got rid
of some defects and
difficulties which had arisen from section 32
of the Larceny Act
1916 and from judicial interpretations of that
section. The false
pretence (or "deception", to use the
new term) was no long
confined to pretence about an existing fact
and no longer excluded
a misrepresentation as to the offender's
intention. An important
point, with a view to interpreting the
Theft Act and understanding
comments, both judicial and academic,
which have been made
about it, is the fusion in clause 12 and
section 15 of larceny by a
trick and obtaining by false pretences.
I refer to paragraph 90:
"On the other hand clause 12(1) provides that
'a person is to be treated as
obtaining property if he
obtains ownership, possession or control
of it ..."
"This is a departure from the
present law, which requires
that ownership should be obtained
(Kilham [(1870) L.R. 1
C.C.R. 261], mentioned in paragraph
89; Ball, [1951] 2 K.B.
109; 35 Cr. App. R. 24). The
extension of the offence to
include obtaining possession or
control will have the result
- 25 -
that if Kilham, although
pretending that he only wanted to
borrow the horse, had in fact
intended to deprive the owner
permanently, he would be guilty
under the clause, because
he obtained possession of the horse. The
extension will also
have the effect that the offences of theft and
criminal
deception will overlap and that conduct which under
the
present law is larceny by a trick and that which is
obtaining
by false pretences will be the same offence of
criminal
deception. In practice, if there is any doubt whether it
is
appropriate to charge theft or obtaining property by
deception,
it will be natural to charge the latter; and in our
opinion it
would be wise to do so, because this will be a
much easier offence
to establish than is the present offence
of obtaining by false
pretences, as it will be unnecessary to
show that the owner was
deceived into intentionally passing
the ownership but sufficient
to show that he was tricked
into parting with the possession.
Theft should be charged
only in very clear cases. The new law will
have the
advantage that the prosecution will not be in the
present
difficulty (referred to in paragraph 19) of deciding which
of
two mutually exclusive offences to charge. The
existing
difficulties in this respect are considerably reduced by
the
provision in 1916 s. 44(3) that a person charged with
larceny
may be convicted of obtaining by false pretences and
the
provision in s. 44(4) that a person charged with obtaining
by
false pretences may be convicted of this offence even if
the
evidence proves larceny. But these provisions are not
entirely
satisfactory. If a person is rightly charged with
larceny, but the
jury in reliance on s. 44(3) mistakenly
convict him of obtaining
by false pretences, the Court of
Criminal Appeal cannot substitute
a verdict of guilty of
larceny under s. 5(2) of the Criminal
Appeal Act 1907 (c.
23); for the verdict implies an acquittal of
larceny, so that
it cannot '[appear] to the Court of Criminal
Appeal that the
jury must have been satisfied of facts which
proved him
guilty of [larceny]' (Fisher (1921), 16 Cr. App.
R. 53).
Again, a person charged with attempted larceny cannot
be
convicted of attempting to obtain by false pretences
(Gallagher
(1929), 21 Cr. App. R. 172). The provision in s.
44(4) has been
criticized on the ground that it is wrong in
principle that a
person should be found guilty of an offence
which the jury find
that he did not commit. It seems to us
that the Bill would be open
to criticism if it had to rely on
provisions such as those in 1916
s. 44(3) and (4). But it
does not have to do so. Difficulties
of the kinds provided
for by those subsections will not arise,
because the
overlapping of the two offences under the Bill will
have the
result that the accused can be convicted of
whichever
offence is charged. It also seems right that the
offence
under clause 12(1), as well as applying to
obtaining
possession or control without ownership, should apply
to
obtaining ownership without possession or control.
For
ownership enables a person to pass the title to another
in
fraud of the person from whom the property is obtained,
and
this may make it difficult or impossible for the latter
to recover
the property."
(I am not entirely clear about the
wording of the sentence which I
have underlined, but I think the
sense is that the accused can be
- 26 -