Law Report: Theft despite owner's consent: Regina v Gomez - House of Lords (Lord Keith of Kinkel, Lord Jauncey of Tullichettle, Lord Lowry, Lord Browne-Wilkinson, Lord Slynn of Hadley), 3 December 1992.

A person who by dishonest deception induces the owner of goods to part with them appropriates them and may be guilty of theft because an act may be an appropriation within section 1(1) of the Theft Act 1968 even though it is done with the consent or authority of the owner.

The House of Lords (Lord Lowry dissenting) allowed the Crown's appeal from the Court of Appeal's decision ((1991) 1 WLR 1344) to quash the defendant's convictions for theft.

Section 1(1) 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.'

The defendant, an assistant manager at an electrical shop, was asked by B to supply goods in exchange for two building society cheques which the defendant knew were stolen. The defendant obtained authority from the shop manager to supply the goods, without telling him the cheques were worthless. The defendant was charged with theft, contrary to section 1(1).

The trial judge rejected the defence submission that there was no 'appropriation' within the meaning of section 1(1) because the manager had authorised the transaction, whereupon the defendant pleaded guilty. On his appeal the Court of Appeal (Criminal Division) quashed the convictions on the ground that there was no appropriation.

Michael Austin-Smith QC and Philip Shorrock (CPS) for the Crown; Anthony Hacking QC and James Pavry (Vasallo & Dillon) for the defendant.

LORD KEITH said that in Lawrence v Metropolitan Police Commissioner (1972) AC 626, the House of Lords decided that it was no longer an ingredient of the offence of theft that the taking should be without the owner's consent and that an appropriation 'may occur even though the owner has permitted or consented to the property being taken'.

In R v Morris (1984) AC 320, the House of Lords decided that the concept of appropriation involved not an act expressly or impliedly authorised by the owner but an act by way of adverse interference with or usurpation of the owner's rights. However there were observations in Morris which were unnecessary and incorrect.

While it was correct to say appropriation included an act by way of adverse interference with or usurpation of the owner's rights, it did not necessarily follow that no other act would amount to an appropriation and in particular that no act expressly or impliedly authorised by the owner could do so. Lawrence was a clear decision to the contrary since it laid down unequivocally that an act might be an appropriation notwithstanding that it was done with the consent of the owner. The actual decision in Morris was correct but it was erroneous and unnecessary to indicate that an act expressly or impliedly authorised by the owner could never amount to an appropriation.

In a case where the owner of goods was induced by fraud to part with them to the rogue, Lawrence made it clear that the consent to or authorisation by the owner of the taking by the rogue was irrelevant. The taking amounted to an appropriation within section 1(1). Lawrence also made it clear that it was no less irrelevant that what happened might also have constituted the offence of obtaining property by deception under section 15(1). Lawrence must be regarded as authoritative and correct.

Accordingly, when theft was alleged and that which was alleged to be stolen passed to the defendant with the consent of the owner, but that had been obtained by a false representation, an appropriation had taken place within the meaning of section 1(1), and such a passing of property need not necessarily involve an element of adverse interference with or usurpation of some right of the owner.

LORD BROWNE-WILKINSON said in the company fraud cases, the re-establishing of the decision in Lawrence rendered the whole question of consent by the company irrelevant. Whether or not those controlling the company consented or purported to consent to the abstraction of the company's property by the accused, he would have appropriated the property of the company.

The question would be whether the other necessary elements were present: was such appropriation dishonest and was it done with the intention of permanently depriving the company of such property? It would offend both common sense and justice to hold that the very control which enabled such people to extract the company's assets constituted a defence to a charge of theft from the company. The question in each case must be whether the extraction of the property from the company was dishonest, not whether the alleged thief had consented to his own wrongdoing.

LORD JAUNCEY and LORD SLYNN agreed.

LORD LOWRY, dissenting, said that the word 'appropriate' bore the meaning 'take possession of, take to oneself, especially without authority'. The act of appropriating property was a one- sided act, done without the consent or authority of the owner. The absence of consent on the part of the owner was already inherent in the word 'appropriates' properly understood.

It was best to prosecute under section 15(1) in cases where deception was alleged to have been practised. In company fraud cases, the mistake was to say that a 'directing mind' accused was to be treated as having validly consented on behalf of the company to his dishonest taking of the company's property.

Ying Hui Tan, Barrister

Start your day with The Independent, sign up for daily news emails
Have you tried new the Independent Digital Edition apps?
News
ebooksAn unforgettable anthology of contemporary reportage
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Recruitment Genius: Business Development Manager / Sales - OTE £45,000

£35000 - £45000 per annum: Recruitment Genius: This company is a solutions / s...

Recruitment Genius: Sales Executive - OTE £45,000

£18000 - £45000 per annum: Recruitment Genius: A Sales Executive is required t...

Recruitment Genius: Test Development Engineer

£35000 - £40000 per annum: Recruitment Genius: Are you inspired to bring new a...

Recruitment Genius: Trainee Motor Engineer

£14000 - £18000 per annum: Recruitment Genius: This is an exciting opportunity...

Day In a Page

Sepp Blatter resignation: The beginning of Fifa's long road to reform?

Does Blatter's departure mean Fifa will automatically clean up its act?

Don't bet on it, says Tom Peck
Charles Kennedy: The baby of the House who grew into a Lib Dem giant

The baby of the House who grew into a Lib Dem giant

Charles Kennedy was consistently a man of the centre-left, dedicated to social justice, but was also a champion of liberty and an opponent of the nanny-state, says Baroness Williams
Syria civil war: The harrowing testament of a five-year-old victim of this endless conflict

The harrowing testament of a five-year-old victim of Syria's endless civil war

Sahar Qanbar lost her mother and brother as civilians and government soldiers fought side by side after being surrounded by brutal Islamist fighters. Robert Fisk visited her
The future of songwriting: How streaming is changing everything we know about making music

The future of songwriting

How streaming is changing everything we know about making music
William Shemin and Henry Johnson: Jewish and black soldiers receive World War I Medal of Honor amid claims of discrimination

Recognition at long last

Jewish and black soldiers who fought in WWI finally receive medals after claims of discrimination
Beating obesity: The new pacemaker which helps over-eaters

Beating obesity

The new pacemaker which helps over-eaters
9 best women's festival waterproofs

Ready for rain: 9 best women's festival waterproofs

These are the macs to keep your denim dry and your hair frizz-free(ish)
Cycling World Hour Record: Nervous Sir Bradley Wiggins ready for pain as he prepares to go distance

Wiggins worried

Nervous Sir Bradley ready for pain as he prepares to attempt cycling's World Hour Record
Liverpool close in on Milner signing

Liverpool close in on Milner signing

Reds baulk at Christian Benteke £32.5m release clause
On your feet! Spending at least two hours a day standing reduces the risk of heart attacks, cancer and diabetes, according to new research

On your feet!

Spending half the day standing 'reduces risk of heart attacks and cancer'
With scores of surgeries closing, what hope is there for the David Cameron's promise of 5,000 more GPs and a 24/7 NHS?

The big NHS question

Why are there so few new GPs when so many want to study medicine?
Big knickers are back: Thongs ain't what they used to be

Thongs ain't what they used to be

Big knickers are back
Thurston Moore interview

Thurston Moore interview

On living in London, Sonic Youth and musical memoirs
In full bloom

In full bloom

Floral print womenswear
From leading man to Elephant Man, Bradley Cooper is terrific

From leading man to Elephant Man

Bradley Cooper is terrific