R v Morris (David)
| Jurisdiction | England & Wales |
| Judge | Lord Fraser of Tullybelton,Lord Edmund-Davies,Lord Roskill,Lord Brandon of Oakbrook,Lord Brightman |
| Judgment Date | 13 October 1983 |
| Judgment citation (vLex) | [1983] UKHL J1013-1 |
| Date | 13 October 1983 |
| Court | House of Lords |
[1983] UKHL J1013-1
House of Lords
Lord Fraser of Tullybelton
Lord Edmund-Davies
Lord Roskill
Lord Brandon of Oakbrook
Lord Brightman
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Roskill. I entirely agree with it, and for the reasons given by him I would answer the certified questions in the way he proposes, and I would dismiss both appeals.
My Lords,
Having had the advantage of reading in draft form the speech prepared by my noble and learned friend, Lord Roskill, I too would answer the questions certified in these appeals in the manner indicated by him and dismiss both appeals.
My Lords,
These two consolidated appeals, one from the Court of Appeal (Criminal Division), the other from the Divisional Court, have been brought by leave of your Lordships' House in order that controversial questions of law arising from the dishonest practice of label switching in connection with shoplifting in supermarkets may be finally decided. These matters have been in controversy for some time and have been the subject of judicial decisions which are not always easy to reconcile as well as disagreement between distinguished academic lawyers.
The facts giving rise to these appeals are simple. Morris, the appellant from the Court of Appeal (Criminal Division), on the 30th October 1981 took goods from the shelves of a supermarket. He replaced the price labels attached to them with labels showing a lesser price than the originals. At the checkout point he was asked for and paid those lesser prices. He was then arrested. Burnside, the appellant from the Divisional Court, was seen to remove a price label from a joint of pork in the supermarket and attach it to a second joint. This action was detected at the checkout point but before he had paid for that second joint which at that moment bore a price label showing a price of £2.73 whereas the label should have shown a price of £6.91½. Burnside was then arrested.
The only relevant difference between the two cases is that Burnside was arrested before he had dishonestly paid the lesser price for the joint of pork. Morris was arrested after he had paid the relevant lesser prices. Morris was tried in Acton Crown Court on two charges of theft contrary to section 1(1) of the Theft Act 1968. A third count of obtaining property by deception contrary to section 15 of that Act appeared in the indictment but the learned Assistant Recorder did not take a verdict upon it and ordered that count to remain on the file. Morris appealed. The Court of Appeal (Criminal Division) (Lord Lane C.J., O'Connor L.J. and Talbot J.) dismissed his appeal in a reserved judgment given on the 8th March 1983 by the learned Lord Chief Justice.
Burnside was convicted at Manchester Magistrates Court on the 27th January 1982 on a single charge of theft contrary to section 1(1) of the Theft Act. He appealed by way of case stated. On the 5th November 1982, the Divisional Court (Ackner L.J. and Webster J.) dismissed the appeal.
Both the Court of Appeal (Criminal Division) and the Divisional Court granted certificates. The former certificate read thus:
"If a person has substituted on an item of goods displayed in a self-service store a price label showing a lesser price for one showing a greater price, with the intention of paying the lesser price and then pays the lesser price at the till and takes the goods, is there at any stage a 'dishonest appropriation' for the purposes of section 1 of the Theft Act 1968 and if so, at what point does such appropriation take place."
The certificate in the latter case reads:
"If a person has substituted on an item of goods displayed in a self-service store a price label showing a lesser price for one showing a greater price, with the intention of paying the lesser price, and then pays the lesser price at the till and takes the goods, is there at any stage a 'dishonest appropriation' for the purposes of section 1 of the Theft Act 1968."
The two certificates though clearly intended to raise the same point of law are somewhat differently worded and, with respect, as both learned counsel ultimately accepted during the debate before your Lordships, do not precisely raise the real issue for decision, at least in the terms in which it falls to be decided.
My Lords, in his submissions for the appellants, which were conspicuous both for their clarity and their brevity, Mr. Denison Q.C. urged that on these simple facts neither appellant was guilty of theft. He accepted that Morris would have had no defence to a charge under section 15(1) of obtaining property by deception for he dishonestly paid the lesser prices and passed through the checkpoint having done so before he was arrested. But Morris, he said, was not guilty of theft because there was no appropriation by him before payment at the checkpoint sufficient to support a charge of theft, however dishonest his actions may have been in previously switching the labels.
Mr. Denison pointed out that if, as he accepted, an offence was committed against section 15(1) and if the prosecution case were right, Morris would be liable to be convicted of obtaining property by deception which he had already stolen - a situation which learned counsel suggested was somewhat anomalous.
As regards Burnside, Mr. Denison submitted that for the same reason there was no appropriation before his arrest sufficient to support a charge of theft. He also submitted that Burnside's actions however dishonest would not support a charge of attempting to obtain property by deception contrary to section 15(1) since his dishonest act was no more than an act preparatory to obtaining property by deception and was not sufficiently proximate to an attempt to obtain property by deception.
My Lords, if these submissions be well founded it is clear that however dishonest their actions, each respondent was wrongly convicted of theft. The question is whether they are well founded. The answer must depend upon the true construction of the relevant sections of the Theft Act 1968 and it is to these that I now turn. For ease of reference I set them out:
"l.-(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 the purposes of this 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; or
(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; or
(c) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.
(2) A person's appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.
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.
(2) Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor's title amount to theft of the property.
4.-(1) 'Property' includes money and all other property, real or personal, including things in action and other intangible property."
It is to be observed that the definition of "appropriation" in section 3(1) is not exhaustive. But section 1(1) and section 3(1) show clearly that there can be no conviction for theft contrary to section 1(1) even if all the other ingredients of the offence are proved unless "appropriation" is also proved.
The starting point of any consideration of Mr. Denison's submissions must, I think, be the decision of this House in Lawrence [1972] A.C. 626. In the leading speech, Viscount Dilhorne expressly accepted the view of the Court of Appeal (Criminal Division) in that case that the offence of theft involved four elements, (1) a dishonest (2) appropriation (3) of property belonging to another, (4)...
To continue reading
Request your trial
-
R v Wille
... ... They are a David Baldwin and John Gregory knew each other socially and became connected in business, and in about 1982 Baldwin and Gregory acquired a quantity of ... 24 However, in the case of Morris (1983) 77 Cr. App. R. 309 , Lord Roskill, in a speech with which the other members of the House concurred, at page 315 said: "Mr. Denison ... ...
-
R v Hinks (Karen Maria)
...the meaning of the word "appropriates" in section 1(1) of the Act, namely in Reg. v. Lawrence [1972] A.C. 626; in Reg. v. Morris [1984] A.C. 320; and in Reg. v. Gomez [1993] A.C. 442. The law as explained in Lawrence and Gomez, and applied by the Court of Appeal in the present case ( Regina......
-
Director of Public Prosecutions v Gomez
...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 2The facts of this case are that the respo......
-
Wheatley and Another v Commissioner of Police of the British Virgin Islands
...The Court of Appeal took a different view. Directing itself in accordance with R v Lawrence (Alan) [1972] AC 626, R v Morris (David) [1984] AC 320, R v Gomez [1993] AC 442 and R v Hinks [2001] 2 AC 241, it concluded (para 37) that considerations of gain and loss were irrelevant to the d......
-
The Fraud Act 2006—Some Early Observations and Comparisons with the Former Law
...human intervention) 8 (1966) 51 Cr App R 28.9 (1987) 86 Cr App R 213.10 (1837) 7 C & P 784.11 [1978] 1 All ER 1061.12 [1978] AC 55.13 [1984] AC 320.14 [1977] AC 177.15 [1983] QB 953.16 (1989) 91 Cr App R 217.17 [2000] 1 Cr App R 242.The Journal of Criminal The representation must be ‘false’......
-
Table of Cases
...Rollock [2004] UKHL 2, [2004] 1 AC 1118, [2004] 2 WLR 201, [2004] 1 All ER 925 343–362 R v Morris (David); sub nom Anderton v Burnside [1984] AC 320, [1983] 3 WLR 697, [1983] 3 All ER 288, HL 291, 295 R v Pan [2001] 2 SCR 344, 2001 SCC 42, Canadian Sup Ct 350 R v Qureshi [2001] EWCA Crim 18......
-
Dishonest Appropriation after Gomez and Hinks
...keeping or dealing with it as owner.’6 Applying Lawrence v Metropolitan Police Commissioner [1972] AC 626, HL andoverruling R v Morris [1984] AC 320, HL.7 As in Morris where the defendant attached a price label to goods in a supermarketwhich showed a price lower than that which was properly......
-
Can Dishonesty Be Salvaged? Theft and the Grounding of the MSC Napoli
...Commission Report No. 276, Fraud (2002) para. 3.6. Hereafter ‘Law Com.Report No. 276’.21 [1993] AC 442.22 [2001] 2 AC 241.23 R v Morris [1984] AC 320 at 332, per Lord Roskill.24 Law Commission Consultation Paper No. 155, Fraud and Deception (1999) paras3.17 and 3.20. Hereafter ‘Law Com. CP ......