Authorised Acts and Appropriation

Publication Date01 Mar 1992
AuthorC.M.V. Clarkson
DOIhttp://doi.org/10.1111/j.1468-2230.1992.tb01875.x
CASES
Authorised Acts and Appropriation
C.
M.
V. Clarkson
*
The law of theft is dominated by two seemingly irreconcilable House of Lords
decisions,
Lawrence’
and
Morris.2 Lawrence
allows an appropriation when the
defendant is acting with the consent or authorisation of the person to whom the
property belongs. It therefore concedes a significant overlap between theft and
obtaining by deception.
Morris,
on
the
other hand, insists that
an
appropriation involve
an act of ‘adverse interference with or usurpation’ of the rights of the other. This
test would not be satisfied by taking property with consent or authorisation, and
there is thus no overlap between theft and obtaining by deception. In
1989,
the Court
of
Appeal in
Philippou
(in the Criminal Divi~ion)~ and
Dobson
v
General Accident
Fire and Life Assurance Corp plc
(in the Civil Divi~ion)~ showed a clear prefer-
ence for
Lawrence.
However, in the recent case of
Gornez,
the Court of Appeal
(Criminal Di~ision)~ has thrown its weight firmly behind
Morris.
The object
of
this note is to expose some of the problems associated with this approach, but
nevertheless to welcome the decision and to express the hope that, if the House
of Lords is to be seized of the matter, then this is the approach that will be followed.
In
Lawrence,
the defendant taxi driver took
E6
extra from his non-comprehending
Italian customer. This was held to be an appropriation, despite the fact that the Italian
was consenting to the removal of his property. It was not necessary that the defendant
do anything objectively wrong. This approach was approved in
Philippou
where
the appellant and his co-director were the sole shareholders of a company and, in
withdrawing money for their own purposes, they were doing an act authorised by
the company (themselves); it was, nevertheless, an appropriation. In
Dobson
v
General Accident Fire and Life Assurance Corp plc,
a rogue obtained a watch and
a diamond ring from his victim after handing over a worthless stolen cheque. The
victim was only insured for ‘theft’ and not for loss of property by deception. It
was held that there had been an appropriation and therefore theft. Parker LJ drew
a difficult distinction between cases where there is ‘mere consent’ and those where
there is ‘express authorisation’ by the victim to parting with the property. In the
former situation, which was the case in
Dobson
and presumably in
Lawrence
itself,
there could be an appropriation
-
but where there had been an ‘express authorisation’
there would be no appropriation.
The opposite approach was adopted by the House of Lords in
Morris,
where it
was held that an appropriation was ‘not an act expressly or impliedly authorised
by the owner but an act by way of adverse interference with or usurpation of those
rights.’h In this case, the defendant swapped labels on goods and was held to have
*Reader
in
Law,
University
of
Bristol.
1
[
19721 AC 626.
2 [1984] AC 320.
3 [I9891 CLR 585.
4
[I9891 3 WLR 1066.
5
[I9911 3 All ER 394.
6
[I9841 AC
320,
332.
The
Modern
Law
Review
5.5~2
March
1992 0026-7961
265

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