Appropriation after Gomez
| DOI | 10.1177/002201839305700209 |
| Author | Simon Cooper,Michael J Allen |
| Date | 01 May 1993 |
| Published date | 01 May 1993 |
| Subject Matter | Article |
APPROPRIATION
AFTER
GOMEZ
Simon Cooper" and Michael JA lien**
In
our
earlier article, 'Rethinking Appropriation',1we argued that the
decisions in Lawrence- and Morris3could be reconciled but the recent
decision of the House of Lords in Gomez' renders areconciliation
unnecessary. Twenty-four years after the passing of the Theft Act 1968
the meaning of the word 'appropriates' in the offence of theft has finally
been resolved.'The confusion as to the meaning of the word 'appropriation'
derived from the conflicting dicta in the speeches in Lawrence and Morris
which, in turn, resulted in a plethora of Divisional Court and Court of
Appeal decisions from which no consistent or coherent principle could be
extracted. The crucial issue was whether there could be an appropriation
where the owner of the property had consented to the 'taking' of it by the
alleged thief. In
Gomez,
as with several of the earlier cases," the owner
consented to the taking of the property but only because of a deception
practised upon him by the rogue. While these facts would support a
conviction for the offence of obtaining property by deception contrary to
s 15(1) of the Theft Act 1968, would they also enable a conviction to be
obtained for the simple offence of theft contained in s 1(1)? Lawrence
suggested an affirmative answer while Morris had been construed as
suggesting the contrary.7
•Lecturer in law, Newcastle Law School, University of Newcastle upon Tyne .
••
Senior Lecturer in law, Newcastle Law School, University of Newcastle upon Tyne.
156 JCL 87.
2(1972] AC 626.
3[1984]AC 320.
4[1992]3 WLR 1061.
5The Theft Act resulted from the Eighth Report of the CLRC, Theft and Related Offences,
Cmnd 2977. The CLRC expressed the view that the word appropriation would not seem
strange for more than a short time.
6See Lawrence, above, and Dobson v General Accident Fire and Life Assurance Corp pic
(1990]QB 274.
7In the Court of Appeal in Gomez (1991] 3 All ER 394, Lord Lane CJ concluded (at
p 398) that Morris had decided that when a person by dishonest deception induces the owner
to transfer his entire proprietary interests in property this could not be theft. In fact Lord
Roskill never made any statement in Morris approximating to this conclusion. In referring
to the cases of shoppers who dishonestly switch price labels on goods and then purchase the
goods at a lower price, Lord Roskill stated (at pp 334-335):
I see no reason in principle why, when there is clear evidence of both offences being
committed, both offences should not be charged. But . . . those concerned with
prosecutions may in future think it preferable in the interests of simplicity to charge only
an offence against s 15(1).
See further PR Glazebrook, 'Thief or Swindler: Who Cares?' [1991]
CU
389 for a critique
of Lord Lane CJ's reasoning.
186
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