Lawrence v Commissioner of Police of the Metropolis [1971] UKHL 2

House of Lords
Between
LawrenceAppellantCommissioner of Police of the MetropolisRespondent
Before
Lord Donovan Viscount DilhorneLord PearsonLord DiplockLord Cross of Chelsea
my lords.I have had the advantage of reading the opinion of my noble and learned friend, Viscount Dilhorne. I agree with it and would therefore dismiss this appeal.

Viscount Dilhorne

My Lords,The Appellant was convicted on the 2nd December, 1969, of theft con- trary to section 1(1) of the Theft Act, 1968. On the 1st September, 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 taxidriver, 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 one pound out of his wallet and gave it to the Appellant who then, the wallet being still open, took a further six pounds out of 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 six pounds.In cross-examination, Mr. Occhi when asked whether he had consented to the money being taken, said that he had " permitted ". He gave evidence through an interpreter and it does not appear that he was asked to explain what he meant by the use of that word. He had not objected when the six pounds were taken. He had not asked for the return of any of it. It may well be that when he used the word " permitted ", he meant no more than that he had allowed the money to be taken. It certainly was not established at the trial that he had agreed to pay to the Appellant a sum far in excess of the legal fare for the journey and so had consented to the acquisition by the Appellant of the six pounds.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 six pounds 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, 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 (D).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 word " 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. 2Parliament 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.Megaw L.J., delivering the judgment of the Court of Appeal, said 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 pro- perty 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 seven pounds 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 under- stand 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 con- sented to the appropriation of six pounds 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. Bach, Q.C., for the Appellant contended that if Mr. Occhi consented to the Appellant taking the six pounds, 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 dis- tinction between the offence of false pretences and larceny had been pre- served. 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 per- " manently 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 appro- priated belonged to another, to Mr. Occhi.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.Having done so, they granted a certificate that a point of law of general public importance was involved and granted leave to appeal to this House. Under the Administration of Justice Act, 1960. section 1(1), they have power to grant such leave if they think that a point of law of general public im- portance is involved and also that the point is one which ought to be considered by this House. The certificate granted does not state that they thought that the point was one which ought to be considered by this House but I infer that they were of that opinion from the fact that leave to appeal was granted.3The first question posed in the certificate was "Whether section 1(1) of " the Theft Act, 1968, is to be construed as though it contained the words " ' without having the consent of the owner' or words to that effect". In my opinion, the answer is clearly No.The second question was:
"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"
. Again, in my opinion, the answer is No. There is nothing in the Act to suggest that they should be regarded as mutually exclusive and it is by no means un- common for conduct on the part of an accused to render him liable to con- viction for more than one offence. Not infrequently there is some over- lapping of offences. In some cases the facts may justify a charge under section 1(1) and also a charge under section 15(1). On the other hand, there are cases which only come within section 1(1) and some which are only within section 15(1). If in this case the Appellant had been charged under section 15(1), he would, I expect, have contended that there was no decep- tion, that he had simply appropriated the money and that he ought to have been charged under section 1(1). In my view, he was rightly charged under that section.I must confess to some surprise that a certificate for leave to appeal should have been granted in this case. While it may be true to say that few points of law affecting the general criminal law of the country are not points of general public importance, the second limb of section 1(1) of the Adminis- tration of Justice Act, 1960, is one to which great regard should be had, namely, that the point is one which ought to be considered by this House.I can say with some confidence that prior to the Administration of Justice Act, 1960, it is most unlikely that the Attorney-General's fiat would have been granted for an appeal to this House in a case such as this.For the reasons I have stated, in my opinion this appeal should be dismissed.

Lord Pearson

My Lords,1 have read the opinion of my noble and learned friend, Viscount Dilhorne, and I agree with it; and for the reasons given by him I would dismiss the appeal.

Lord Diplock

My Lords,I agree, for the reasons given by my noble and learned friend, Viscount Dilhorne, that this appeal should be dismissed.

Lord Cross of Chelsea

My Lords,I agree, for the reasons given by my noble and learned friend, Viscount Dilhorne, that this appeal should be dismissed.(316644) Dd. 197075 100 6/71 St.S.