Thieving and Deceiving: What is the Difference?

DOIhttp://doi.org/10.1111/j.1468-2230.1993.tb01884.x
Published date01 July 1993
Date01 July 1993
CASES
Thieving and Deceiving: What is the Difference?
Stephen Shute* and Jeremy
Harder**
The decision of the House of Lords in
DPP
v
Gomez‘
brings to a head the debate
in the higher courts and in academic journals over the relationship between the
offences of theft and of obtaining property by deception. This is the third time that
the House of Lords has been called on to examine this general area of the law in
just over twenty years.* In
Gomez,
the defendant persuaded
his
unwitting employer
to
accept two building society cheques, known by the defendant to have been stolen,
in exchange for goods at the shop where they both worked. The defendant had,
inter alia,
falsely told the manager of the shop that a building society cheque was
‘as good as cash.
Some time later the
two
cheques were returned by the bank marked:
‘Orders not to pay. Stolen cheque.’ Somewhat surprisingly, perhaps, Gomez was
charged with theft contrary to
s
l(1)
of the Theft Act
1968,
rather than with obtaining
property by deception contrary to
s
15
of that Act. When he was convicted, he
appealed on the grounds that he had not ‘appropriated’ the goods in question, as
required for the offence of theft under
s
l(1).
His defence was that the very idea
of an ‘appropriation’ under
s
1(
1)
involved an unauthorised or non-consensual
transfer,
so
the consent of the shop manager to the transfer of the goods to the
defendant, albeit obtained by fraud, effectively precluded any finding of an appro-
priation in
his
case. Since fraudulently obtained authorisation for a transfer of property
is an intrinsic part of the offence of obtaining property by deception, he could (and
should) have been charged under
s
15,
but he was The Appeal Court allowed
his appeal and certified that the following point of law of general public importance
was involved:
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 appro-
priation within the meaning of section
l(1)
of the Theft Act
1968
taken place,
or
(b)
must
such
a
passing of property [ie in order
to
count as an appropriation] necessarily involve an
element of adverse interference with
or
usurpation
of
some right of the owner?
By a majority of
4
to
1
(Lord Lowry dissenting), the House of Lords answered
question (a) in the affirmative and question
(b)
in the negative. In
so
doing, they
gave their unequivocal support to the previous decision of the House in
Lawrence
v
Metropolitan
Police
Cornmissi~ner,~
and characterised the conflicting statements
made by Lord Roskill in
R
v
Morriss
as ill-considered
obiter
dicta.
The effect of
*Fellow of Corpus Christi College, Oxford.
1
[1992] 3
WLR
1067.
2
3
**Fellow
of
Worcester College, Oxford.
See
also
Lawrence
v
Metropolitan Police Comissioner
[I9721 AC
626
and
R
v
Morris
[I
9841 AC 320.
We agree with the House of Lords in
DPP
v
Gomez
that no sensible distinction can be drawn between
‘consent’ and ‘authorisation.’ Later we argue that intrinsic
to
obtaining by deception is a
voluntary
transfer of property rather than a ‘consensual’
one.
[I9721 AC 626. The House in
DPP
v
Gomez
took the opportunity
to
declare that two Court of Appeal
decisions, thought to be inconsistent with
Lawrence,
were wrongly decided, namely
R
v
Skipp
[
19751
Crim
LR
114 and
R
v
Fritschy
[1985] Crim
LR
745.
4
5
[1984] AC 320.
0
The
Modern
Law
Review
Limited
1993
548

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