R v Morris (David) (Anderton v Burnside)

For theft under section 1(1) of the Theft Act 1968, appropriation requires the assumption of any one of an owner’s rights. It does not require the assumption of every right. The act must adversely interfere with or usurp an owner’s right.

An honest shopper’s authorised removal of goods from a shelf is not an appropriation. Dishonestly substituting a lower-price label, whether alone or together with removal or another act, is an appropriation when it usurps the retailer’s right to ensure that the goods are sold at the proper price. The relevant acts may operate collectively, irrespective of their order or any interval between them.

Theft may be completed before checkout. A subsequent dishonest purchase at the lower price may constitute the separate, cumulative offence of obtaining property by deception.

These consolidated appeals concerned dishonest price-label switching in self-service supermarkets. Morris removed goods, replaced their labels with lower-price labels, paid the reduced prices and was convicted of theft. The Court of Appeal (Criminal Division) dismissed his appeal. Burnside transferred a lower-price label to a more expensive joint of meat and was arrested at the checkout before paying. The Divisional Court dismissed his appeal by case stated from the magistrates’ court.

The common issue was whether, and at what point, removing and relabelling goods constituted a dishonest appropriation under sections 1(1) and 3(1) of the Theft Act 1968. The House also considered the relationship between theft and obtaining property by deception under section 15(1).

1. Both appeals dismissed unanimously. Lord Roskill delivered the leading speech. Lord Fraser of Tullybelton, Lord Edmund-Davies, Lord Brandon of Oakbrook and Lord Brightman agreed. The orders of the Court of Appeal and the Divisional Court were affirmed.

2. Per Lord Roskill, sections 1(1) and 3(1) of the Theft Act 1968 require proof of appropriation in addition to dishonesty, property belonging to another and an intention permanently to deprive. “The rights of an owner” in section 3(1) means any of those rights, rather than all of them. That construction was supported by the references to “a right” later in section 3(1), to “rights” in section 3(2), and to “the right” in section 2(1)(a).

3. Per Lord Roskill, appropriation under section 3(1) involves adverse interference with or usurpation of an owner’s right. An honest shopper who removes goods from a shelf and takes them to the checkout acts with the retailer’s implied authority and does not thereby appropriate them.

4. Per Lord Roskill, mere label switching will not invariably suffice. In these cases, however, removing the goods and dishonestly substituting lower-price labels collectively usurped the retailer’s right to ensure that the goods were sold and paid for at the proper price. Acts may individually or collectively constitute the necessary interference. Their order and any interval between them are immaterial. Concealment in a trolley, bag or basket may make proof of appropriation overwhelming.

5. Per Lord Roskill, McPherson was correctly decided. Anderton v Wish and Eddy v Niman were also approved, although the suggestion in the latter that an inconsistent act must be “overt” was too narrow. Kaur v Chief Constable of Hampshire was disapproved. Questions whether a contract is void or voidable for mistake or fraud are irrelevant to liability under the Act.

6. Per Lord Roskill, theft was completed upon the earlier appropriation. Obtaining property by deception under section 15(1) occurred only when the reduced price was paid at the checkout. The offences were therefore cumulative, rather than alternatives, although charging only deception after checkout might often simplify the prosecution.

1. House of Lords: In [1984] AC 320, dismissed both consolidated appeals and affirmed the orders of the Court of Appeal (Criminal Division) and the Divisional Court.

2. Court of Appeal (Criminal Division): Dismissed Morris’s appeal from his convictions for theft at Acton Crown Court.

3. Divisional Court of the Queen’s Bench Division: Dismissed Burnside’s appeal by case stated from his conviction for theft at Manchester Magistrates’ Court.