Director of Public Prosecutions v Gomez
| Jurisdiction | England & Wales |
| Judge | Lord Keith of Kinkel,Lord Jauncey of Tullichettle,Lord Lowry,Lord Browne-Wilkinson,Lord Slynn of Hadley |
| Judgment Date | 03 December 1992 |
| Neutral Citation | [1992] UKHL J1203-2 |
| Judgment citation (vLex) | [1992] UKHL J1203-3 |
| Date | 03 December 1992 |
| Court | House of Lords |
[1992] UKHL J1203-2
House of Lords
Lord Keith of Kinkel
Lord Jauncey of Tullichettle
Lord Lowry
Lord Browne-Wilkinson
Lord Slynn of Hadley
My Lords,
This appeal raises the question whether two decisions of your Lordships' House upon the proper construction of certain provisions of the Theft Act 1968 are capable of being reconciled with each other, and, if so, in what manner. The two decisions are Lawrence v. Metropolitan Police Commissioner [1972] A.C. 626 and Reg. v. Morris [1984] A.C. 320. The question has given rise to much debate in subsequent cases and in academic writings.
The facts of this case are that the respondent, Edwin Gomez, was employed as assistant manager at a shop trading by retail in electrical goods. In September 1987 he was asked by an acquaintance called Jit Ballay to supply goods from the shop and to accept payment by two stolen building society cheques, one for £7,950 and the other for £9,250, which were undated and bore no payee's name. The respondent agreed, and prepared a list of goods to the value of £7,950 which he submitted to the manager, Mr. Gilberd, saying that it represented a genuine order by one Johal and asking him to authorise the supply of the goods in return for a building society cheque in that sum. Mr. Gilberd instructed the respondent to confirm with the bank that the cheque was acceptable, and the respondent later told him that he had done so and that such a cheque was "as good as cash." Mr. Gilberd agreed to the transaction, the respondent paid the cheque into the bank, and a few days later Ballay took possession of the goods, the respondent helping him to load them into his vehicle. Shortly afterwards a further consignment of goods to the value of £9,250 was ordered and supplied in similar fashion (apart from one item valued at £1,002.99 which was not delivered), against the second stolen building society cheque. Mr. Gilberd agreed to this transaction without further inquiry. Later the two cheques were returned by the bank marked "Orders not to pay. Stolen cheque."
The respondent, Ballay and another employee of the shop, named Rai, were arrested and later tried on an indictment the fourth and fifth counts in which charged all three with theft contrary to section 1(1) of the Theft Act 1968 in respect of the two transactions. After evidence had been led for the prosecution counsel for the respondent submitted that there was no case to answer on the theft charges because the manager of the shop had authorised the transactions, so that there had been no appropriation within the meaning of section 1(1) of the Theft Act. The trial judge rejected this submission, whereupon the respondent pleaded guilty to count 4, but defended himself on count 5 on the basis that he had acted under duress. The jury, however, convicted him on this count, and he was sentenced to two years' imprisonment on each count to run concurrently. The respondent appealed to the Court of Appeal (Criminal Division) which on 22 April 1991 (Lord Lane C.J., Hutchison and Mantell JJ.) quashed the convictions: ( [1991] 1 W.L.R. 1344). Lord Lane C.J., delivering the judgment of the court, after considering Lawrence v. Commissioner of Metropolitan Police [1972] A.C. 626 and Reg. v. Morris [1984] A.C. 320, said at p. 1338:
"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] A.C. 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."
And later, at p. 1339:
"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."
The court later granted a certificate under section 1(2) of the Administration of Justice Act 1960 that a point of law of general public importance was involved in the decision, namely
"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?"
The Crown now appeals, with leave granted here, to your Lordships' House.
The provisions of the Theft Act 1968 principally relevant are these:
Section 1(1)
"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."
Section 3(1)
"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."
Section 4(1)
"'Property' includes money and all other property, real or personal, including things in action and other intangible property."
Section 7
"A person guilty of theft shall on conviction on indictment be liable to imprisonment for a term not exceeding ten years."
Section 15(1)
"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."
It is to be observed that by section 26 of the Criminal Justice Act 1991 the maximum sentence for theft was reduced from 10 to 7 years. The section 15(1) penalty was left unchanged.
The facts in Lawrence v. Metropolitan Police Commissioner [1972] A.C. 626, as set out in the speech of Viscount Dilhorne, were these:
"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 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 £6."
The conviction was upheld by the Court of Appeal (Criminal Division) which in granting leave to appeal to your Lordships' House certified the following questions as involving a point of law of general public importance:
"(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."
Viscount Dilhorne, whose speech was concurred in by Lord Donovan, Lord Pearce, Lord Diplock and Lord Cross of Chelsea, after stating the facts, and expressing some doubts as to what Mr. Occhi had meant when he said that he "permitted" the taxi driver to take £6, continued, at p. 631:
"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...
To continue reading
Request your trial
- R v Ngan
-
R v Atakpu and Another
...the theft had been committed abroad. In the light of the decision of the House of Lords in R v GomezTLRWLR (The Times December 8, 1992; [1992] 3 WLR 1067) that unattractive submission was undoubtedly correct. So interesting questions arose as to (i) whether the theft committed abroad contin......
-
R v Kendrick
...the decision in the case of DPP v. Gomez (1993) Cr.App.R. 359." 6 The Court made it clear that had the law been the law as is represented by Gomez and as outlined in Archbold there would, on its face, appear to be nothing wrong with this summing-up. However, he went on that the directions i......
- R v Mazo
-
Subject Index, Volume 77, 2004
...270, 271R v Ford (1989) QB 868 275R v Fox, Campbell and Hartley (1990) 13 EHRR 157 263, 264R v Geddes [1996] Crim LR 895 242R v Gomez [1993] AC 442 249R v Gribben (1999) NIJB 30 275R v Hassan, June 2004, CA (Crim) 268–272R v Hoare and Pierce, April 2004, CA (Crim) 257–260R v Howell (1982) Q......
-
Table of Cases
...[1982] QB 1053, [1982] 3 WLR 110, [1982] 2 All ER 689, CA 186, 189, 193, 292, 293, 304, 305, 308, 312, 313 R v Gomez; sub nom DPP v Gomez [1993] AC 442, [1992] 3 WLR 1067, [1993] 1 All ER 1, HL 291–294, 296, 298, 300–303, 305, 308, 310, 315 R v Hinks [2001] 2 AC 241, [2000] 3 WLR 1590, [200......
-
Provocation: Speculative Defence Not to Be Left to the Jury
...While this principle has become anestablished part of the criminal law, perhaps it is time to reconsider thisapproach and R v Gomez [1993] AC 442. Trying to draw a distinctionbetween theft and fraud offences on the basis of remoteness is artificial.There is no moral difference between a ca......
-
Defining Fraud: An Argument in Favour of a General Offence of Fraud
...2 All ER 316. R ν Cohen and others (1992) New Law Journal, 18th September, 1992. R ν Ghosh (1982) 3 WLR 110, 2 All ER 689. R ν Gomez (1993) AC 442. R ν Grant Adams (1995) 1 WLR 52. R ν Hallam (1994) The Times, 27th May, 1994. R ν Hancock & Shankland (1986) 2 WLR 357. R ν Hyam (1983) 5 Cr Ap......