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R v Gomez

Legal Citation:

DPP v Gomez [1993] A.C. 442, House of Lords

 

[On appeal from REGINA v. GOMEZ]

1992 July 20, 21, 22; Dec. 3

Lord Keith of Kinkel, Lord Jauncey of Tullichettle, Lord Lowry, Lord Browne-Wilkinson and Lord Slynn of Hadley

Crime - Theft - Dishonest appropriation - Shop employee by deceit obtaining authority to supply customer with goods against stolen cheques - Employee knowing that cheques stolen - Whether "appropriation" - Theft Act 1968 (c. 60), ss. 1(1), 3(1)

The defendant, the assistant manager of a shop, was approached by a customer who wanted to acquire goods in exchange for two stolen cheques. Knowing that the cheques were stolen, the defendant deceived the shop manager into authorising the sale of the goods to the customer in exchange for the cheques. He was charged with theft contrary to section 1(1) of the Theft Act 1968.(Theft Act 1968, s. 1(1): see post, p. 454D-E. S. 3(1): see post, p. 454E.) At his trial, the judge rejected his submission that there was no case to answer in that the goods had been sold under a contract between the customer and the shop and that there had been no appropriation of property belonging to another. He thereupon pleaded guilty and was convicted. The Court of Appeal (Criminal Division) allowed his appeal against conviction.

On appeal by the Crown: -

Held, allowing the appeal (Lord Lowry dissenting), that an act expressly or impliedly authorised by the owner of goods or consented to by him could amount to an appropriation of the goods within section 1(1) of the Theft Act 1968 where such authority or consent had been obtained by deception; and that, accordingly, the defendant had been rightly convicted of theft (post, pp. 457B, 460C-E, 464A-D, 465B-C, 495C, 497C).

Reg. v. Lawrence (Alan) [1972] A.C. 626, H.L.(E.) and Dobson v. General Accident Fire and Life Assurance Corporation Plc. [1990] 1 Q.B. 274, C.A. applied.

Dicta of Lord Roskill in Reg. v. Morris (David) [1984] A.C. 320, 332-333, H.L.(E.) not applied.

Decision of the Court of Appeal (Criminal Division) [1991] 1 W.L.R. 1334; [1991] 3 All E.R. 394 reversed.

The following cases are referred to in their Lordships’ opinions:

The following additional cases were cited in argument:

Appeal from the Court of Appeal (Criminal Division).

This was an appeal by the Crown by leave of the Court of Appeal (Criminal Division) (Lord Lane C.J., Hutchison and Mantell JJ.) from its decision on 22 April 1991 allowing an appeal by the defendant, Edwin Gomez, against his conviction at Isleworth Crown Court (Mr. Recorder Bassingthwaighte) on two counts of theft, the defendant having on

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20 April 1990 pleaded guilty on re-arraignment to one count and on 24 April 1990 been found guilty by verdict of a jury on a further count.

The Court of Appeal on application by the Crown on 14 October 1991 granted a certificate under section 1(2) of the Administration of Justice Act 1960 that the following point of law of general public importance was involved in its decision:

"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 [interference] with or usurpation of some right of the owner?"

The facts are set out in the opinion of Lord Keith of Kinkel.

Michael Austin-Smith Q.C. and Philip Shorrock for the Crown. The House of Lords is invited to resolve decisively the perceived difference between Reg. v. Lawrence (Alan) [1972] A.C. 626 and Reg. v. Morris (David) [1984] A.C. 320 in a way that makes for simplicity and ease of understanding. The issue is whether Lawrence is right or whether Morris casts doubt on it: there is no point in going through previous decisions. [Reference was made to the Theft Act 1968, sections 1 to 6 and 15.]

"Appropriate" has a number of meanings: the straightforward English meaning as in section 1; or the concept as expanded in section 3(1); or just "taking." The only way in which one can make sense of the Act without great complexity is to interpret "the rights of an owner" in the most literal way possible. The Act was intended to deal with the rights of owners rather than with possession of the property. "The rights of an owner" means the rights that owners normally have, not the rights of the particular owner in question.

The following propositions may properly be derived from Reg. v. Lawrence [1972] A.C. 626, 631D-E, 632A-B, D-F. (a) Section 1(1) of the Act of 1968 is not to be construed as though it contained the words "without having the consent of the owner" or words to that effect. That was the answer to the first certified question in Lawrence and was therefore part of the ratio decidendi of the case. The offence of theft is thus complete upon proof of the four elements: (i) a dishonest (ii) appropriation (iii) of property belonging to another (iv) with the intention of permanently depriving the owner of it. (b) Where consent is in issue, it is relevant, not to appropriation, but to dishonesty. (c) Consent in the context of the law of theft means true consent with full knowledge of the relevant facts. (d) Sections 1(1) and 15(1) of the Act of 1968 are not mutually exclusive, so that, if the facts proved justify a conviction under section 15(1), there can lawfully be a conviction under section 1(1) on the same facts. That was the answer to the second certified question and is part of the ratio decidendi.

The proposition that it is not necessary to prove absence of consent as an element of theft means that the word "appropriates" is to be given its ordinary English meaning, namely, "takes as one’s own or to oneself,"

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a working definition apparently accepted by the courts without controversy (see, e.g., Reg. v. Philippou (1989) 89 Cr.App.R. 290, 299) and usually abbreviated in practice to "takes." It would be appropriate to depart from the ordinary English meaning only if the context clearly so required; that is not the case.

Parliament has expressly provided by section 1(3) that section 3(1) has effect as regards the interpretation and operation of section 1(1). Thus "appropriates" is to be interpreted in such a way that any assumption of the rights of an owner amounts to an appropriation. The result is to extend the ordinary meaning but not to restrict it, so that every "taking" will necessarily involve an assumption of one or more of the rights of the owner, although the converse might not be true (e.g., in the case of a label switcher). In the ordinary case, it will not normally be necessary to consider section 3(1) with its potential complications of the civil law as to what are the rights of an owner. It will be necessary to do so only in the relatively rare case where the appropriation is alleged to have been an interference with a right of the owner without more (e.g., label switching). Ordinarily, the factual issue as to appropriation will simply be whether the defendant is proved to have taken the property in question. The recorder was, therefore, correct to direct the jury in terms of "appropriation" as meaning "taking."

The decision in Lawrence achieves the object set out by Lord Roskill in Reg. v. Morris (David) [1984] A.C. 320, 334G-H. The result of Lawrence is that all cases of obtaining by deception are capable of being within section 1 of the Act of 1968.

The only propositions properly to be derived from Morris [1983] Q.B. 587; [1984] A.C. 320, 331C-D, 332A are that (a) there can be no conviction for theft unless all four elements contained in section 1(1) are proved;

(b) for the purposes of section 3(1) it is sufficient to prove the assumption of any of the rights of the owner in the goods in question; (c) the substitution of a label showing a lesser price on goods for one showing a greater price constitutes an assumption of one of the rights of the owner of the goods and amounts to an appropriation of those goods: that was the ratio decidendi of the case.

The following propositions derived from Morris [1984] A.C. 320, 332B-H are obiter dicta and wrong in principle, namely, that (a) the concept of appropriation in section 3(1) involves an element of adverse interference with or usurpation of some right of the owner so that, if the owner expressly or impliedly consents to the act in question, it could not amount to an appropriation; (b) there is no appropriation at the moment when a customer removes an item from a shelf; (c) a dishonest shopper also has the implied authority of the owner to remove items from the shelf; and (d) the switching of labels, without more, is not an appropriation.

If Morris represents the law, the prudent prosecutor would on the facts of Lawrence nowadays have to charge both theft and obtaining by deception to cater for the possible findings of the jury: theft on the basis that there was no authorised act and no misrepresentation; obtaining by deception on the basis that the loser was deceived into authorising the

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act. However, the House of Lords in Morrisdid not regard itself as stating anything in conflict with Lawrence.

The proposition that appropriation involves an element of adverse interference with or usurpation of some right of the owner, if correct in law, is concerned only with appropriation within section 3(1): see per Lord Roskill [1984] A.C. 320, 331E-F, 332D, 332F-333B, 334B. In particular, it deals with the situation where an alleged thief is in possession with the consent of the owner for a limited purpose, that is to say, there is a bailment or some other authorised possession or control. Lord Roskill was doing no more than stating the fundamental proposition of English law that no crime is committed while it remains in intention only. There must be an actus reus and evidence of that actus reus. Compare, however, Lord Roskill’s approval of the dictum of Webster J. in Eddy v. Niman (1981) 73 Cr.App.R. 237, 241. That case was wrongly decided. It would have been right if it had said that the defendant’s change of mind was immaterial. If Reg. v. Skipp [1975] Crim.L.R. 114, Reg. v. Fritschy [1985] Crim.L.R. 745 and Reg. v. Meech [1974] Q.B. 549 are interpreted as stating any principle wider than the requirement that there should be evidence of an appropriation, they were wrongly decided.

Professor J. C. Smith in his commentary on Reg. v. Shuck [1992] Crim.L.R. 209, 211-213 says that, if there is an intention on the part of the owner to pass all his property rights to another so that that other gets a voidable title, there is nothing left for him to appropriate: see also his commentary on Reg. v. Fritschy [1985] Crim.L.R. 745, 746-747 and P. R. Glazebrook, "Thief or Swindler: Who Cares?" [1991] C.L.J. 389. If, however, an owner of property is induced by a misrepresentation expressly to authorise the passing of the property to another, the fact of such authorisation does not prevent the passing amounting to an appropriation within the meaning of section 1(1) of the Act of 1968. [Reference was made to Smith, The Law of Theft, 6th ed. (1989), pp. 12-24; Professor Glanville Williams, "Theft, Consent and Illegality (1)" [1977] Crim.L.R. 127; Glanville Williams, "Theft, Consent and Illegality: Some Problems" [1977] Crim.L.R. 327; Glanville Williams (and reply by J. C. Smith), "Theft and Voidable Title" [1982] Crim.L.R. 64 and Glanville Williams, "Theft and Voidable Title" [1981] Crim.L.R. 666.]

As to the company cases, if Lawrence was correctly decided, it removes the complications considered in cases such as Reg. v. McHugh (1988) 88 Cr.App.R. 385 and Reg. v. Philippou, 89 Cr.App.R. 290, and it follows that the approach of the Court of Appeal in Attorney-General’s Reference (No. 2 of 1982) [1984] Q.B. 624 was correct. [Reference was also made to Reg. v. Nadir, The Independent, 23 June 1992.] The initial question is one of fact: whether there was an appropriation either in the sense of a taking or in the extended sense of section 3(1), where the act alleged is in the sense of a taking. The issue of whether the company consented to that appropriation is material to the issue of dishonesty and is covered by section 2 of the Act of 1968. The purpose of section 2 is to demonstrate that "appropriate" is at least neutral. An alternative definition of "appropriate" could be "to assume for oneself or another."

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That would embrace a consensual appropriation (borrowing a car or umbrella) and a hostile taking. In the present case, the appropriation in fact was the selection of the items on the list.

The House of Lords in Morris did not consider the position where consent or authorisation was obtained as a result of deception. Rather, it was accepted that Lawrence was correctly decided and that the facts of that case disclosed an appropriation. The proposition that the passing of title prevents the acquisition of the property being an appropriation for the purposes of the Act of 1968 is mistaken. A robber obtains a voidable title to the property he takes, the loser consenting to part with the property because of duress. It was nonetheless the intention of Parliament that the acquisition of property in those circumstances should involve a theft. Just as the obtaining of a voidable title by reason of duress does not operate to prevent there being a theft, so the obtaining of such a title obtained by deception has no different effect. The Court of Appeal failed to take full account of Dobson v. General Accident Fire and Life Assurance Corporation Plc. [1990] 1 Q.B. 274, where the Court of Appeal (Civil Division) decided on materially indistinguishable facts that there was an appropriation: see the commentary by Professor J. C. Smith [1990] Crim.L.R. 271, 273-274.

The Act of 1968 was passed in order to simplify the law relating to theft and related offences. Lawrence achieves this by providing a simple and principled approach to the law relating to appropriation. To overrule it would be to substitute the arcane complications arising from Morris without noticeably increasing the clarity of the law. The need is for a prosecutor to be equipped with the range of offences necessary to meet the range of dishonesty intended by Parliament to be criminally culpable. The consequence of interpreting the law so as to follow Lawrence is to give him a choice that may be exercised so as to make the task of the tribunal of fact as simple as possible.

Anthony Hacking Q.C. and James Pavry for the defendant. In the Act of 1968 Parliament intended to provide a simpler and more effective system of law relating to theft and kindred offences. The inclusion of the offence of obtaining property by deception was deliberate and demonstrated that Parliament intended and achieved a distinction in law between the offence of theft and the offence of obtaining property by deception. Central to this distinction is the fact that a thief does not acquire and cannot pass on ownership of the property he steals, whereas the swindler who uses, for example, a worthless cheque may obtain property and pass on ownership to an innocent third party: see paragraph 38 of the Eighth Report of the Criminal Law Revision Committee on Theft and Related Offences (1966) (Cmnd. 2977). A person does not commit an appropriation when he does no more than he is authorised to do by the owner; he does not assume the rights of an owner if the owner confers those rights on him.

The problem is that the prosecutor wrongly charged an offence of theft and failed to charge an offence of obtaining property by deception. But for that, no questions concerning ownership or whether a contract was void or voidable would have arisen.

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Theft, under the Act of 1968, embraces the old offences of larceny, embezzlement and fraudulent conversion where the common feature was the absence of any consent or authorisation by the "victim" and no acquisition of ownership by the "rogue." Obtaining property by deception, under the Act of 1968, embraces the old offences of obtaining by false pretences where ownership passed to the "rogue" and larceny by a trick where it did not. Where the entire proprietary interest in the property passes, there is nothing left to appropriate. The answers to the questions certified by the Court of Appeal depend on what it is that passes to the defendant with the consent of the owner. If it is something less than the owner’s entire proprietary interest then there may be an appropriation of the owner’s surviving rights and theft may be committed. But there is no appropriation where the entire proprietary interest passes.

It is proper, where necessary, to have recourse to civil law principles, and there should be no distinction between the relevant principles of civil law and criminal law. Such recourse is helpful, not harmful. It makes for certainty in the criminal law. [Reference was made to Phillips v. Brooks Ltd. [1919] 2 K.B. 243, 246, 248; Lake v. Simmons [1927] A.C. 487, 497-499, 501 and Lewis v. Averay [1972] 1 Q.B. 198.]

One of the defects of the law of stealing and kindred offences under the Larceny Act 1916 was the tendency to define offences in terms of the detail and method of their commission rather than concentrating on the essential elements of the offence. Parliament intended that the Act of 1968 should define the essential elements of each offence. These elements include the legal consequences that flow from the commission of an offence. The distinction between thief and swindler is not one of detail since the legal consequences that flow will frequently depend on whether ownership has passed.

The true meaning of "appropriates" in the Act of 1968 is "converts to one’s own use or benefit or the use or benefit of any other person," and this accords with the popular perception of "helping oneself to somebody else’s property:" see p. 19, para. 35 of the Eighth Report of the Criminal Law Revision Committee. If the Crown is right, any dishonest taking of property is theft. The sentence for theft prescribed by section 7 of the Act of 1968, ten years, is to be amended to seven years by section 26(1) of the Criminal Justice Act 1991. The sentence of ten years prescribed by section 15(1) of the Act of 1968 for obtaining property by deception remains. The reason for the different periods is that Parliament recognises that they are different offences. Sections 24(4) and 28(6) show that section 15 is not always or solely dealing with theft. In order to construe Parliament’s intention with regard to the Act of 1968, in particular sections 1 and 15, regard should be had to the Eighth Report of the Criminal Law Revision Committee: see Reg. v. Kassim [1992] 1 A.C. 9, 16F-H.

Larceny at common law consisted in a taking and carrying away of property from the possession of another without his consent. It was a trespassory interference with another’s possession of goods. In 1857 Parliament enlarged the offence of larceny by adding the concept of larceny by a bailee. When larceny was defined by statute for the first time in the Act of 1916 that extension of the offence was included in a

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proviso. The Criminal Law Revision Committee, when they decided to reject the idea of theft as a trespassory interference with possession, took the notion of conversion, as used in the proviso and in section 20 of the Act of 1916, as the central concept of the new offence of theft: see paragraph 35 of the Eighth Report. Dishonest appropriation, and not trespassory possession, is the basis of the offence of theft, and this is made clear by section 3(1). The adoption of appropriation as the act constituting the offence gets rid of the necessity for both a trespassory "taking" and a "carrying away" as constituents of stealing: see Smith, The Law of Theft, pp. 13-14, para. 31.

As to section 15, the offence of obtaining property by criminal deception, when the Act was passed, corresponded to a number of existing offences concerned with obtaining something by false pretences or other deception or with practising deception for that purpose. [Reference was made to sections 31(1) and 44 of the Act of 1916; the statute 30 Geo. 2, c. 24; Archbold, Criminal Pleading Evidence Practice, 36th ed. (1966),p. 556, para. 1497; Rex v. Edmundson (1912) 8 Cr.App.R. 107 and Reg. v. Caslin [1961] 1 W.L.R. 59.]

Whilst the decisions in Lawrence and Morris were correct, any attempt to reconcile the apparently conflicting dicta in them may lead to further confusion in the law relating to theft and kindred offences.

Lawrence should not be interpreted as going beyond the peculiar facts of the case: see Morris [1984] A.C. 320, 331H. Both the certified questions were answered correctly, but that should not be taken as support for the proposition that consent is never relevant to the issue of appropriation or that there is a substantial overlap between sections 1 and 15. The passage in Lawrence [1972] A.C. 626, 632E is correct because it is dealing with the state of mind of the defendant and how dishonesty can be established, but that passage is not a basis for saying that where consent is in issue it is relevant not to appropriation but to dishonesty. If the taking of possession with permission or consent is in itself an appropriation, then Reg. v. Meech [1974] Q.B. 549 and Reg. v. Skipp [1975] Crim.L.R. 114 were wrongly decided.

Consent in the context of the law of theft does not mean true consent with full knowledge of the relevant facts. It is undesirable that the definition of appropriation should depend on the notion of true consent with full knowledge of the relevant facts. The forest of case law referred to in Morris will continue to grow apace if such a vague proposition is correct. The effect of the Crown’s proposition would be to identify the swindler with the thief. Although the moral stigma attached to both is much the same where payment for goods is avoided by deception by the offering and acceptance of a worthless cheque, there are factual situations where the description of the activity as theft is inappropriate in law and is contrary to common sense. The purchaser of a firearm who uses a bogus forged firearms certificate has committed the offence not of theft but of obtaining property by deception. The under-age child (over 14) buying cigarettes or spirits at the off-licence by representing that he is over 18 does not steal the cigarettes or spirits. The only ratio decidendi of Lawrence is that sections 1 and 15 are not mutually exclusive and that a conviction for one offence does not necessarily preclude a conviction

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for the other on the same facts. The present case only falls within section for the other on the same facts. The present case only falls within section 15(1). Further, the Crown’s proposition, taken to its logical conclusion, is that there can be no cases that are exclusively section 15 offences. The judicial and academic diversity of opinion since Lawrence as to what its ratio is demonstrates the falsity of the Crown’s conclusion that the decision achieved the object set out in Morris as to simplicity. [Reference was made to Smith, The Law of Theft, pp. 13-14, paras. 31, 32, pp. 19-20, paras. 37, 38.]

The question in the certificate in Morris directed the House specifically to consider the definition of appropriation whereas the certificate in Lawrence was directed towards the question of whether there was an additional ingredient to the offence of theft to be implied alongside the four elements specifically set out in section 1(1). Whilst the definition of appropriation in Morris [1984] A.C. 320, 332D, was probably an obiter dictum, it is correct in principle and accords with the intention of Parliament: see [1991] 1 W.L.R. 1334, 1338F-G. The criticism of Dobson v. General Accident Fire and Life Assurance Corporation Plc. [1990] 1 Q.B. 274 made by the Court of Appeal is valid. [Reference was made to Professor Smith’s commentary [1990] Crim.L.R. 271, 273-274.]

In the context of section 3(1) of the Act of 1968, "assumption" involves a dealing with property that is opposed to the wishes of the party from whom the property has been taken. Further, "usurpation" was used as a synonym in Morris for "assumption," as was the use of "adverse interference" to denote the contempt that the owner’s rights are in some way challenged or affected. The alternative approach postulated by the Crown is not clear. The suggestion that there is a distinction between appropriation under section 1(1) and that under section 3(1), is misconceived. The purpose of section 3(1) was to explain more fully the concept of appropriation introduced for the first time in criminal law in section 1(1), namely that it was analogous to conversion and would cover cases of dishonest retention and disposal after an innocent acquisition: see pp. 19-20, para. 36 of the Eighth Report of the Criminal Law Revision Committee. Parliament recognised that there would be circumstances where a person comes by property dishonestly without stealing it, and in those circumstances it is the later assumption of a right to it that amounts to appropriation.

As to the company cases, it does not follow from Morris that Attorney-General’s Reference (No. 2 of 1982) [1984] Q.B. 624 was incorrect. The actions of the directors were ultra vires. An ultra vires act cannot be regarded as the consent or authority of the company. If Reg. v. Philippou, 89 Cr.App.R. 290 is in conflict with Reg. v. McHugh, 88 Cr.App.R. 385, McHugh is to be preferred: see Smith, The Law of Theft, p. 32, para. 58.

The relevance of dishonesty to appropriation in theft by company controllers derives from company law and not from the construction of the Act of 1968. Where there is theft from a company, company law principles must be applied. In corporate fraud it is necessary to look very carefully at the nature and limits of the authority before considering whether the questioned transaction is in truth a transaction authorised by the company: see Reg. v. McHugh, 88 Cr.App.R. 385. The court will

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only imply a power to enter into a particular transaction if the transaction was reasonably incidental to the carrying on of the company’s business. Even if the power is express, the validity of its exercise will likewise depend on whether it was employed in pursuit of the objects of the company: contrast Introductions Ltd. v. National Provincial Bank Ltd. [1970] Ch. 199 and In re Halt Garage (1964) Ltd. [1982] 3 All E.R. 1016.

In a "company theft" case, if the prosecution can prove that the purpose of transferring the assets was unlawful, no authority can be attributed to the company. If the transaction cannot be sanctioned by the company, it cannot be authorised by it: see Rolled Steel Products (Holdings) Ltd. v. British Steel Corporation [1982] Ch. 478, 499B-500D; Reg. v. Roffel [1985] V.R. 511 and Reg. v. Nadir, The Independent, 23 June 1992.

The decision and ratio of the Court of Appeal follows Morris and is correct. They do nothing to undermine the offence of robbery, as suggested by the Crown. The robber does not obtain a voidable title to the property he takes. An essential ingredient of the offence of robbery, as opposed to blackmail, is the immediacy of violence. There is no contract at all, and no gift is intended. There is no outward appearance of an intention to create a legal relationship, and there is no consideration. There is a material distinction between submission to the immediate threat of force and consent induced by deception.

Parliament did not intend to include all offences of dishonestly obtaining property within the definition of theft in section 1(1) of the Act of 1968. A person does not commit an appropriation when he does no more than he is authorised to do by the owner; he does not assume the rights of an owner if the owner confers those rights on him. Further, there is no appropriation where the entire proprietary interest in the goods passes, whether or not there has been a deception (whether deliberate or reckless) by words or conduct as to fact or as to law. Parliament could have got rid of section 15. It could have rejected the Eighth Report of the Criminal Law Revision Committee, but in fact it endorsed the report and the draft bill annexed to it formed the basis of the Act of 1968.

Pavry following. A working definition of "appropriate" for a jury is, "I appropriate if I treat as mine what is yours. If it is no longer yours, I do not appropriate." It may be an unattractive submission to argue that if one avoids payment by deception one is not guilty of theft, but what if the deception is not directed towards the avoidance of payment and payment is made for the goods? In these circumstances a juror may say "he didn’t steal the goods, he bought them."

Under section 3(1), one would not assume the rights of the owner of a book if one were lent a book to read. One might be exercising one of the rights of an owner, but it would be wrong to describe it as an assumption of rights. If the Crown’s argument is right, the commission of a criminal offence will turn solely on whether the jury thinks that the action was dishonest: for example, where the deception was not practised by the accused but he took advantage of it.

Section 15 is not, as the Crown says, purely descriptive of a way in which a section 1 theft may be committed. The Crown’s argument that Parliament

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intended to give the prosecutor a choice of charges dependent on the facts of each case imputes a certain naiveté to the legislature. If there is no distinction between section 15 and section 3 the prosecutor will charge theft because less has to be proved.

Austin-Smith Q.C. in reply. The Eighth Report of the Criminal Law Revision Committee is so self-contradictory that there is no guidance to be got from it. [Reference was made to Professor Glanville Williams, "Theft and Voidable Title" [1981] Crim.L.R. 666, 671 and Professor J. C. Smith, "Theft and Voidable Title: A Reply" [1981] Crim.L.R. 677, 678.]

It appears to be accepted by the report that the committee recognise an overlap between the two offences in sections 15 and 1. The consequence is that there will be cases where the passing of something less than ownership, i.e., possession, where consensual, will suffice. The defendant’s argument based on Reg. v. Morris [1984] A.C. 320 must, therefore, be fallacious. It is the act of obtaining that will be both the obtaining and the appropriation.

Whether there has been a transfer of all rights is irrelevant to whether there has been an appropriation. Consent is, therefore, immaterial, as was decided in Reg. v. Lawrence [1972] A.C. 626. "Appropriation" may mean a number of things, positive, negative or neutral, but not "adversely interfere with:" Reg. v. Morris. If Morris imports the consent of the owner, that is wrong, as Lawrence says. The consequence of importing the mind of the loser is to import all the consequences in the company cases. It is not right, in the face of criticism of the complexity of fraud trials, that the House of Lords should contemplate that, as opposed to the question posed in Reg. v. Nadir, The Independent, 23 June 1992, etc.: "was the man dishonest?" It introduces a complexity that is inappropriate in the present context. The Crown’s interpretation would resolve many of the difficulties in the companies cases.

Section 28 of the Act of 1968 is of no assistance to the Crown’s argument:

see Lewis v. Averay [1972] 1 Q.B. 198. It might be thought that it gives a better right to the innocent purchaser than the civil courts, but it incorporates the word "entitlement," so it comes back to a question of civil law. The words of the Act drive one to the conclusion that consent is immaterial. The certified question is designed to focus on that issue. Section 24(4) cannot assist. Parliament must have intended an overlap between sections 1 and 15. Any conduct capable of being within section 15 is also capable of being within section 1.

Their Lordships took time for consideration.

See the judgment of the House of Lords here.


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