R v Morris (David)
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 08 March 1983 |
| Neutral Citation | [1983] EWCA Crim J0308-8 |
| Judgment citation (vLex) | [1983] EWCA Crim J0308-9 |
| Docket Number | No. 2543/B/82 |
| Court | Court of Appeal (Criminal Division) |
| Date | 08 March 1983 |
[1983] EWCA Crim J0308-8
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Lane)
Lord Justice O'Connor
and
Mr. Justice Talbot
No. 2543/B/82
MR. N. DENISON, Q.C. and MRS. P. JESSEL appeared on behalf of the Appellant.
MR. D. JEFFERIES, Q.C. and MISS L. HARRIS appeared on behalf of the Crown.
This is the judgment of the Court.
On 23rd April 1982 in the Crown Court at Acton, this appellant was convicted on two counts of theft under section 1(1) of the Theft Act and was fined £50 on each count. A third count laid under section 15 of the Act, which was alternative to count 2, was left on the file on the usual terms.
He now appeals against that conviction.
The prosecution case, which was clearly accepted by the jury, was that the appellant had, on 30th October 1981, taken articles from the shelves of a self-service store and had at some stage attached to those articles, in place of or on top of the true price labels, labels which he had removed from cheaper articles. he was asked for and paid the lower prices. He was then arrested.
The ground of appeal runs as follows: "That the learned trial Judge erred in law in directing that the alleged changing of price labels by the appellant in this case amounted to an appropriation under section 3(1) of the Theft Act 1968."
This matter has been fully argued before us by Mr. Denison on behalf of the appellant. It was at our encouragement that he did so, and the arguments which he has placed before the Court have proved most helpful. The case raises two principal questions. First, the meaning of the word "appropriation" in the Theft Act. Subsidiary to this point is the question of what the effect is in law of a customer in a self-service store changing price labels on an article so as to indicate a sale price lower than the original and true price. The second point is the relationship between section 1 of the Act on the one hand and section 15 of the other.
The self-service store, generally speaking, operates as follows. Articles are displayed on racks or shelves or on pegs in the store. The price of each article is or should be marked on it by means, usually, of an adhesive label. Wire trolleys or baskets are provided for the convenience of customers into which they can put the articles which they wish to buy and have therefore taken from the shelves. The articles are then taken to a "check out" point where an assistant lists the price of each item, totals them up, usually on a cash till. The customer pays and takes the goods away.
Looked at from the legal point of view, the articles displayed on the shelves with their price tags constitute an invitation to the customer to take an article or articles for purchase and to pay for them at the check out. At the check out the customer offers to buy at the price shown, the cashier accepts and the sale is complete.
When payment is made, the ownership of the articles passes to the customer ( Lacis v. Cashmarts (1969) 2 Q.B. 400). It should be noted that there is no obligation on the customer to use either a trolley or a basket. Providing the customer takes the article to the check out and there pays the proper price, it is immaterial what means he uses to get the article to the check out. However, for reasons which will soon be apparent, if they are not so already, it may be imprudent to use any receptacle other than those provided by the store for taking the articles to the check out point.
Self-service stores of this sort and the type of dishonest activity which they seem to engender have caused problems in the criminal courts. These problems arise largely from the difficulty in determining the point at which it can be said that appropriation has taken place, which in its turn is caused by a difficulty in deciding what is meant by appropriation. The area of dispute is a very narrow one. The amount of debate which has resulted is disproportionate to the importance of the issue.
The relevant provisions of the Theft Act 1968 are as follows:
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.
"(2) It is immaterial whether the appropriation is made with a view to gain, or is made for the thief's own benefit.
"(3) The five following sections of this Act shall have effect as regards the interpretation and operation of this section (and, except as otherwise provided by this Act, shall apply only for purposes of this section)."
Section 2:
"(1) A person's appropriation of property belonging to another is not to be regarded as dishonest – (a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; (b) 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 ……
"(2) A person's appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property."
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 5 – "Belonging to another":
"(1) Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest)."
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.
The following are the authorities which support the first school of thought:
In Eddy v. Niman (1981) Cr. L. R. 502, the defendant and a friend entered a self-service supermarket with the intention of stealing goods from it. Goods were taken from a shelf and put into the trolley supplied by the store with that intention. Thereupon the defendant changed his mind and decided not to carry on with the plan. He left the goods with his friend and went out of the store. He was later arrested. He accepted that the facts were as stated and was charged with theft contrary to section 1 of the 1968 Act. The Justices found that although the defendant had a dishonest intention, there had been no appropriation by him, because the public were authorised and indeed encouraged by the owners of the store to take goods from the shelf and put them in the trolley.
The prosecutor appealed. It was held by the Divisional Court, dismissing the appeal, that for the prosecution to prove theft, they must show, in addition to a dishonest intention, that the defendant assumed the rights of an owner. The placing of goods in a receptacle provided by the store was acting within the store's implied consent, so that such an act could not amount to appropriation. The Court distinguished the decision in R. v. McPherson (1973) Cr. L. R. 191, on the grounds that in that case the customer put the articles into her shopping bag rather than the store's basket, which was an act inconsistent with the owner's rights.
R. v. Skipp (1975) Cr. L. R. 114 . The defendant was convicted on a count which charged him with stealing a number of boxes of fruit and vegetables. He had falsely posed as a genuine haulage contractor and thereby obtained instructions to collect two loads of oranges and one load of onions from three different places in London. He was to deliver these to customers in Leicester. Having collected the goods he made off with them. It was submitted by him on appeal to the Court of Appeal (Criminal Division) that as he had had the intention to steal the goods from the outset, the count was bad for duplicity in that there were three separate appropriations. The Court of Appeal dismissed the appeal on the basis that the different acts constituted parts of one activity and consequently the three loads were properly included in the one count.
They held that an assumption of the rights of an owner did not necessarily take place at the same time as an intent permanently to deprive the owner of the property. There might be many cases in which a person having formed the intent was lawfully in possession of the goods and could not be said to have assumed the rights of an owner because he had not done something inconsistent with those rights. The Court took the view that up to the point when all the goods were loaded and probably up to the point when the goods were diverted from their true destinations, there had been no assumption of rights and so there was only one appropriation.
R. v. Meech (1973) 3 All E.R. 939 . In this case the defendant cashed a cheque in accordance with the instructions of the owner. At...
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