R v Gomez (Edwin) (Director of Public Prosecutions v Gomez)

An appropriation for the purposes of theft may occur with the owner’s consent or authorisation. Under section 3(1) of the Theft Act 1968, an assumption of any right of an owner is sufficient. It need not involve adverse interference with, or usurpation of, the owner’s rights.

Accordingly, a person who dishonestly induces an owner by deception to transfer property may commit theft, provided the other elements of the offence are proved. The same conduct may also constitute obtaining property by deception. A person controlling a company may steal its property; any purported consent given through that person’s control does not prevent an appropriation.

The respondent, an assistant shop manager, dishonestly induced his manager to authorise two consignments of electrical goods in exchange for stolen and worthless building society cheques. He was convicted at Isleworth Crown Court of two counts of theft under section 1(1) of the Theft Act 1968.

The Court of Appeal (Criminal Division), reported at [1991] 1 W.L.R. 1344, quashed the convictions. It held that the consensual transfer of the goods under voidable contracts involved no appropriation. The Director of Public Prosecutions appealed.

The central question was whether property transferred with an owner’s consent obtained by false representation had been appropriated, and whether appropriation required adverse interference with or usurpation of an owner’s right.

1. Appeal allowed by a majority of four to one. Lord Keith of Kinkel delivered the leading speech. Lord Jauncey of Tullichettle, Lord Browne-Wilkinson and Lord Slynn of Hadley agreed that the convictions should be restored. Lord Lowry dissented.

2. Per Lord Keith, Lawrence v Metropolitan Police Commissioner [1972] AC 626 authoritatively established that absence of the owner’s consent is not an ingredient of theft. An appropriation may occur although the owner permitted or authorised the taking. Consent and authorisation are indistinguishable for this purpose. Under section 3(1) of the Theft Act 1968, the assumption of any one of an owner’s rights is sufficient.

3. The contrary observation in Reg v Morris [1984] AC 320, that appropriation necessarily involves adverse interference with or usurpation of an owner’s rights, was unnecessary to that decision and incorrect. The actual result in Morris remained correct. Changing a price label is itself an assumption of an owner’s right, irrespective of whether another act accompanies it. Dishonesty and an intention permanently to deprive remain separate requirements.

4. The shop manager’s fraudulently procured authorisation did not prevent appropriation. The transfer of the goods could therefore constitute theft under section 1(1), notwithstanding that the conduct might also amount to obtaining property by deception under section 15(1). The two offences substantially overlap.

5. Per Lord Browne-Wilkinson, the same reasoning applies where a person controlling a company dishonestly extracts its property. A controller’s acts and intentions may be attributed to a company when the company is accused of an offence. They are not attributed to it so as to manufacture consent where the controller is charged with an offence against the company.

6. Lord Lowry would have dismissed the appeal. He considered appropriation to be a unilateral act performed without the owner’s consent or authority. On his construction, a consensual transfer of ownership induced by fraud fell under section 15 rather than section 1.

7. The Court of Appeal’s order was set aside, the convictions were restored, and the cause was remitted to that court to act consistently with the House’s judgment.

1. House of Lords: By a majority of four to one, allowed the Director of Public Prosecutions’ appeal, set aside the Court of Appeal’s order, restored the theft convictions and remitted the cause.

2. Court of Appeal (Criminal Division): On 22 April 1991, allowed the respondent’s appeal and quashed both convictions, holding that the authorised transfers involved no appropriation: [1991] 1 W.L.R. 1344.

3. Isleworth Crown Court: On 20 and 24 April 1990, convicted the respondent on two counts of theft contrary to section 1(1) of the Theft Act 1968 and imposed concurrent sentences of two years’ imprisonment.