Theft and Fair Labelling

AuthorC. M. V. Clarkson
DOIhttp://doi.org/10.1111/j.1468-2230.1993.tb01885.x
Publication Date01 July 1993
Date01 July 1993
7ke
Modern
Law
Review [Vol.
56
theft or with obtaining by deception.% The decision of the House of Lords in
Gomez is an attempt to cut the Gordian knot by a substantial merger of the two
kinds of crime.31 Not only does this fly in the face of the Committee Report that
preceded the Theft Act
1968,
but it overlooks the fact that a principled and workable
distinction can be drawn between the two crimes that avoids the historic difficulties.
Both theft and obtaining by deception involve what Lord Roskill once called ‘an
adverse interference with or usurpation
of
another’s rights. But only theft involves
appropriation, and appropriation is essentially an involuntary transfer, a taking,
whereas transfers of property obtained by deception are, by their nature, voluntary:
they
are
givings. It is this conceptual basis for the distinction between theft and
obtaining by deception that expresses the moral distinction between the crimes that
has now been largely obliterated in law by Gomez.
Theft
and
Fair Labelling
C.M.
V. Clarkson
*
The House of Lords in
DPP
v Gomez’ has largely* collapsed the distinction
between theft and obtaining property by deception by holding that an authorised
act can amount to an appropriation. Lord Keith (with whom three other Lords
agreed) makes no argument for this extraordinary conclusion other than to say that
Lawrence3 is a ‘clear decision’ which has ‘stood for
12
years’ and that ‘there is
no question of it now being right to depart from it.’4 Stephen Shute and Jeremy
Horder have rightly urged that there is a clear moral distinction between the two
offences, but their proposed basis for demarcation
-
that it should rest on the
difference between ‘involuntary’ and ‘voluntary’ transfers of property
-
is, while
clearly preferable to anything the House of Lords has been able to offer, nevertheless
defective
.5
Criminal offences should accurately describe the prohibited conduct as far as
possible. English law has chosen to reject the plea6 for a single offence of homi-
cide. Even those arguing for the abolition of the mandatory life sentence for murder
would retain the separate offences of murder and manslaughter.7 Similarly, argu-
ments for abandoning the distinction between rape and indecent assault and replacing
them with a broad offence of sexual assault have been resisted.s The reasons for
30 Glanville Williams,
Textbook of Criminal
Law
(London: Stevens,
2nd
ed, 1983), at p 804 points
to
the importance of having such guidance.
In
fact, the considerations that he discusses reinforce the
case for keeping theft and obtaining property by deception largely as separate offences.
A
path down which Glazebrook suggests the law should venture even further: see n 25
ante.
31
*Reader in Law, University of Bristol.
1
[1992] 3 WLR 1067.
2
Lord Browne-Wilkinson pointed out that the categories of land that cannot be stolen
(s
4(2)) can be
obtained bv deceDtion as the other subsections of
s
4, apart from
s
4(1), do not apply to
s
15
(s
34(1)).
3 [1972] Ak 626.’
4 At p 1080.
5
(1993) 56 MLR 548. The facts and decision in
Gomez
are well outlined in their note and will not
be repeated here.
Lord Kilbrandon in
Hyam
v
DPP
[1975] AC
55,
at 98.
House
of
Lords.
Reuort ofthe Select Committee on Murder and Life Imprisonment
(Session 1988-89),
6
7 HL Paper 78-1; 19’89.
Criminal Law Revision Committee, Fifteenth Report,
Sexual Offences
(1984) Cmnd 9213.
8
554
0
The Modem Law Review Limited
1993

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