DPP v Gomez [1992] UKHL 4

"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] AC 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."

"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."

"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?"

"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."

"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."

"'Property' includes money and all other property, real or personal, including things in action and other intangible property."

"A person guilty of theft shall on conviction on indictment be liable to imprisonment for a term not exceeding ten years."

"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."

"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

"(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."

'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.

"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.

"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."

"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

"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

'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.'

"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."

"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."

"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 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] AC 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

"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] AC 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:

'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] AC 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."'

"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."

"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] AC 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."

"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] AC 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

"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."

"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."

"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."

"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 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

"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.-(l) A person's appropriation of property belonging to another is not to be regarded as dishonest -

"4.-(1) 'Property' includes money and all other property, real or personal, including things in action and other intangible property.

"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

"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."

'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."

"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:

"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

"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

'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

"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."

"While I respectfully agree that recommendations of a Committee may not help much when there is a possibility that Parliament may have decided to do something different, where there is no such possibility, as where the draft Bill has been enacted without alteration, in my opinion it can safely be assumed that it was Parliament's intention to do what the Committee recommended and to achieve the object the Committee had in mind. Then, in my view the recommendations of the Committee and their observations on their draft Bill may form a valuable aid to construction

"In our view, no such implication is justified. The words contained in the former definition of larceny, in section 1 of the Larceny Act, 1916, 'without the consent of the owner,' have been omitted, and, we have no doubt, deliberately omitted from the definition of theft in the new Act. If the owner does not resist the taking of his property, or actually hands it over, because of, for example, threats of violence, in one sense it could be said that there is 'consent': yet the offence of robbery, as defined in section 8(1) of the Theft Act, 1968, involves, as one of its elements, theft. Again, the former offences of larceny by a trick and obtaining property by false pretences, though technically distinct offences under the old law, both involved what in one sense could be described as 'consent' by the victim. It was conceded by counsel for the defendant, necessarily and rightly, that the old offence of larceny by a trick is covered by section 1(1) of the Act of 1968, as well as by section 15(1) to which we shall refer later, despite what may be called the apparent consent of the victim.

"The court sees no ground for saying that, for present purposes, it makes the slightest difference whether under the old law the offence would have been false pretences or larceny by a trick. The old and unsatisfactory distinction is not to be unnecessarily perpetuated where the language of the Theft Act, 1968, does not so require. There is no magic in the word 'property' in section 1(1) in view of the definition in section 4(1) of the Act. In either case, the fact that a charge could have been brought under section 15(1), which covers both, in no way operates to prevent the charge being validly laid as theft under section 1(1) if the prosecution can prove what they must prove, as previously described, under that subsection. This is conceded in respect of an offence which would once have been larceny by a trick. It applies equally to what would once have been obtaining by false pretences, if, as is here the case, the requirements of section 1(1) are also satisfied. That submission also fails.

"It may be that the result of our decision is that in any case where the facts would establish a charge under section 15(1) they would also establish a charge under section 1(1). The alternative, however, involves the writing back into section 1(1) of words which the legislature, no doubt deliberately omitted, and the re-introduction into the criminal law of the distinction between larceny by a trick and obtaining by false pretences."

"A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force."

"Where the owner, of his own free will, parts not only with the possession but also with the property in the goods taken, the person taking the goods cannot be guilty of larceny, however fraudulent were the means by which the delivery of the goods was procured."

"Where a man, having the animus furandi (see ante, para. 1469), obtains possession of goods by frightening the owner, as by threatening him with temporary imprisonment unless he delivers up his goods, and the owner does deliver them under the influence of the fear inspired by his threat, this is considered such a taking (although there is a delivery in fact) as to constitute larceny: R. v. Lovell (1881) 8 Q.B.D. 185."

"It may of course be perfectly proper for the court to put on the Act an interpretation different from that intended by the framers of it. The question is one of the proper interpretation of the words enacted by Parliament and it could be that the Act does what the Committee thought was not practicable and what they did not intend to do. It is submitted, however, that the right interpretation of the Act is that intended by the Committee."

"There is, however, a considerable degree of doubt about this matter, because of the case of Lawrence. The Court of Appeal in that case thought that the distinction between larceny by a trick and obtaining by false pretences depended

"[Appropriation] may occur even though the owner has permitted or consented to the property being taken."

"As to the meaning of the word 'appropriation', there are two schools of thought. The first contends that the word 'appropriate' has built into it a connotation that it is some action inconsistent with the owner's rights, something hostile to the interests of the owner or contrary to his wishes and intention or without his authority. The second school of thought contends that the word in this context means no more than to take possession of an article and that there is no requirement that the taking or appropriation should be in any way antagonistic to the rights of the owner. Support can be found for each of those two points of view both in the authorities and also amongst the textbook writers."

"He stated tersely in terms, at p. 633:

'The 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."

"Whilst appreciating the simplicity of this approach, we think, for the reasons already set out, that the wording of the Act, coupled with the decision in Reg. v. Lawrence [1972] AC 626 , does not allow us to adopt this solution."

"The facts of the present case appear to establish that the rogue assumed all the rights of an owner when he took or received the watch and ring from the plaintiff."

"If [the argument] were right, then the result would merely be that the making of the contract constituted the appropriation. It was by that act that the rogue assumed the rights of an owner and at that time the property did belong to the plaintiff."

"The difficulties caused by the apparent conflict between the decisions in Reg. v. Lawrence (Alan) [1972] AC 626 and Reg. v. Morris (David) [1984] AC 320 have provided, not surprisingly, a basis for much discussion by textbook writers and contributors of 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.

"I am fully conscious of the fact that in so concluding I may be said not to be applying Reg. v. Morris. This may be so, but in the light of the difficulties inherent in the decision, the very clear decision in Reg. v. Lawrence (Alan) [1972] AC 626 and the equally clear statement in Reg. v. Morris (David) [1984] AC 320 that the question whether a contract is void or only voidable is irrelevant, I have been unable to reach any other conclusion. I would therefore dismiss the appeal."

'This analysis appears to me to have been authoritatively adopted by the House of Lords in Reg. v. Lawrence (Alan) [1972] AC 626 . The first question certified 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.'

'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."'

"Reference was not made to Viscount Dilhorne's ruling that appropriation may occur even though the owner has permitted or consented to the property being taken.

"What in fact happened was that the owner was induced by deceit to agree to the goods being transferred to Ballay. 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] AC 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 not been avoided at the time the goods are handed over."

"We do not consider that the judgment in [Dobson] requires or allows us to disregard what we have earlier in this judgment sought to extract as the ratio of the decision in [Morris]. We therefore conclude that there was a 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. In the absence of any charge under section 15 of the Theft Act 1968, this appeal must therefore be allowed and the conviction quashed."

"Few principles of statutory interpretation are applied as frequently as the presumption against alterations in the common law. It is presumed that the legislature does not intend to make any change in the existing law beyond that which is expressly stated in, or follows by necessary implication from, the language of the statute in question."

"The Larceny Act 1916 required that the taking and carrying away should be 'without the consent of the owner'. The absence of the owner's consent was an essential feature of the trespassory taking which had to be proved. The omission of these words from the definition of theft lends some support to the argument that an act may amount to an appropriation although it is done with the consent of the owner. The omission of the words is, however, sufficiently accounted for by the fact that they were part of the definition of the trespassory taking which it was a principal object of the 1968 Act to abolish. It is not a reason for giving to the word 'appropriate' a meaning narrower than it would naturally bear. The Larceny Act itself provided for an alternative form of stealing - larceny by a bailee who 'fraudently converts' the bailed goods. The section did not say 'converts without the consent of the owner'. That would have been absurd because the word 'converts', itself implied that the bailee had done something with the bailed goods which was not authorised by the terms of the bailment. Similarly, fraudulent conversion, contrary to s. 20(1)(iv) of the Larceny Act, required an act inconsistent with the terms on which the property was received. Section 20(1)(iv) was the model for the definition of theft and 'appropriate' was intended to bear the same meaning. If 'converts' in the 1916 Act implied an unauthorised act, notwithstanding its proximity to the definition of larceny with its requirement of the absence of the owner's consent, there is, a fortiori, no reason why the word 'appropriates' in the Theft Act should not be similarly construed.

"One of the questions of law of general public importance which the House was required to answer was-

'Whether s. 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.'

"But whether, in the ordinary case to which section 5 of the Theft Act 1968 does not apply, goods are to be regarded as belonging to another is a question to which the criminal law offers no answer and which can only be answered by reference to civil law principles."

"Where a company is accused of a crime, the acts and intentions of those who are the directing minds and will of the company are to be attributed to the company. That is not the law where the charge is that those who are the directing minds and will have themselves committed a crime against the company."

"Whether a man in total control of a limited liability company (by reason of his shareholding and directorship) is capable of stealing the property of the company; and whether two men in total control of a limited liability company (by reason of their shareholdings and directorships) are (while acting in concert) capable of jointly stealing the property of the company."

"Secondly, we do not consider that in circumstances such as those alleged in the present case section 2(1)(b) has any application; nor that it can provide the basis for any defence. The essence of the defendants' argument is the alleged identity, in all respects, and for every purpose, between the defendants and the company. It is said, in effect, that their acts are necessarily the company's acts; that their will, knowledge, and belief are those of the company, and that their consent necessarily implies consent by the company. But how then can the company be regarded as "the other' for the purposes of this provision? One merely has to read its wording to see that it cannot be given any sensible meaning in a context such as the present, where the mind and will of the defendants are also treated in law as the mind and will of 'the other.' It is for this reason that in such cases there can be no conspiracy between the directors and shareholders on the one hand and the company on the other: Reg. v. McDonnell [1966] 1 Q.B. 233."