Law Report: Transfer of house fixtures was theft: Director of Public Prosecutions v Lavender - Queen's Bench Divisional Court (Lord Justice Watkins and Mr Justice Tuckey), 20 May 1993

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A person who secretly removed fixtures from a landlord's premises to use them at other premises owned by the same landlord was guilty of theft because, in so dealing with the fixtures regardless of the landlord's rights, he was 'permanently depriving' the landlord of them in the sense defined by section 6(1) of the Theft Act 1968.

The Queen's Bench Divisional Court allowed the prosecutor's appeal by way of case stated from the decision of the Elloes Justices in Lincolnshire who, on 25 August 1992, dismissed an information charging the respondent, Melvyn Lavender, with theft.

The respondent lived with his girlfriend in a council house at 37 Royce Road, Spalding, of which she was the tenant. The council refused to replace damaged doors at the premises because the damage was not due to wear and tear but was the tenant's responsibility. The respondent took two doors from another council house, 25 Royce Road, which was unoccupied while undergoing repairs, to replace those damaged at No 37.

The justices concluded that the respondent did not have the necessary intention permanently to deprive the council of the doors for it to be theft.

By section 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 . . .'

Keith Jackson (CPS) for the DPP; David Matthew (Knipe Miller & Co, Spalding) for the respondent.

MR JUSTICE TUCKEY, giving the court's judgment, said the justices, by focusing on the words 'to dispose of' and applying a dictionary definition to them, took too narrow an approach.

The question was, did the respondent intend to treat the doors as his own in dealing with the council, regardless of their rights? The answer must be 'yes'.

The council's rights included the right not to have the doors at No 25 removed and to require the tenant at no 37 to replace or pay for the damaged doors. In dealing with the doors regardless of those rights, the respondent manifested an intention to treat them as his own.

Paul Magrath, Barrister