Director of Public Prosecutions v Gomez

The House of Lords considered whether property transferred to a defendant with the owner's consent obtained by deception can amount to an "appropriation" for the purposes of section 1(1) of the Theft Act 1968. The court held that the authority of R. v. Lawrence [1972] AC 626 should be maintained: "appropriation" in section 1(1) embraces acts which may occur even where the owner has apparently consented, so long as the other elements of theft (dishonesty and intention to permanently deprive) are proved. The court rejected attempts to read into section 1(1) an implicit requirement of absence of consent and criticised dicta in R. v. Morris [1984] AC 320 to the extent that they suggested an act authorised by the owner could never be an appropriation. The House restored the respondent's convictions, emphasising the continued role of section 15(1) (obtaining property by deception) but confirming that some cases of deception will also amount to theft under section 1(1).

The respondent, an assistant manager at a retail shop, authorised delivery of goods in return for building society cheques he and a third party knew to be stolen and worthless. The manager of the shop had authorised the transactions, believing the cheques genuine. The respondent was convicted at Isleworth Crown Court of two counts of theft contrary to section 1(1) of the Theft Act 1968. On appeal the Court of Appeal quashed the convictions, holding that where the owner transferred property under a (voidable) contract induced by deceit there was no appropriation. The Director of Public Prosecutions appealed to the House of Lords.

The appeal required resolution of an apparent conflict between Lawrence v Metropolitan Police Commissioner [1972] AC 626 (which had held that absence of consent is not an ingredient of theft and that appropriation may occur despite owner consent) and Reg. v. Morris [1984] AC 320 (where Lord Roskill described appropriation as involving adverse interference with the owner's rights). The Lords reviewed the relevant provisions of the Theft Act 1968 (notably sections 1(1), 2(1), 3(1), 4, 6 and 15(1)), the Criminal Law Revision Committee report which preceded the Act, and numerous authorities.

The principal issues were (i) the proper construction of "appropriates" in section 1(1), and (ii) whether a transfer of property induced by deception can amount to an appropriation. The House held that Lawrence was authoritative and that the word "appropriates" should not be construed so as to import a requirement of absence of consent; "dishonest appropriation" remains the central concept and covers instances where consent was procured by deception if the other elements of theft are present. The House therefore allowed the Crown's appeal, restored the respondent's convictions and remitted the cause to the Court of Appeal to act consistently with the judgment.

Procedural posture: appeal from the Court of Appeal (Criminal Division) which quashed convictions on 22 April 1991; convictions originally entered at Isleworth Crown Court on 20 and 24 April 1990. Relief sought: restoration of convictions quashed by the Court of Appeal.

Appeal allowed. The House held that Lawrence v Metropolitan Police Commissioner remains authoritative: the omission of the words "without the consent of the owner" from section 1(1) does not mean that appropriation cannot occur where the owner has apparently consented; "dishonest appropriation" remains the key concept. Dicta in Reg. v. Morris suggesting that authorised acts could never be appropriations were of excessive breadth and cannot displace Lawrence. Accordingly the Court restored the respondent's convictions because the essential elements of theft under section 1(1) were satisfied.

Convictions entered at Isleworth Crown Court on 20 and 24 April 1990. Court of Appeal (Criminal Division) quashed the convictions on 22 April 1991 ([1991] 1 W.L.R. 1344). Crown appealed to the House of Lords; appeal allowed and convictions restored (judgment 3 December 1992).