1 8th Report on Theft and Related Offences (1966) Cmnd 2977.

2 Hadden [1967] Crim LR 669.

3 [1970] 3 All ER 933 at 935. Endorsed by the House of Lords at [1971] 2 All ER 1253 at 1255.

4 Noted by Professor Cross, very prophetically, in a contemporary commentary as being the word which‘… is in many ways the most important in the whole new definition of theft.’ [1966] Crim LR 415 at 417.

5 It is contended in the text at n 30, infra, that ‘consent’ must bear a narrow meaning, focusing upon the question of whether property rights have been interfered with.

6 R v Gomez [1993] 1 All ER 1.

7 R v Lawrence [1971] 2 All ER 1253 and R v Morris and Anderton v Burnside [1983] 3 All ER 288.

8 Cf Dobson v General Accident Fin and Life Assurance plc [1989] 3 All ER 927 and R v Gomez [1991] 3 All ER 394, CA, infra.

9 The separate deception offence owes its genesis to Fielding's Act of 1757 30 Geo 2, c 24, termed obtaining by false pretences which in 1916, was embraced by s 32 of the Larceny Act. Cf now s 15 of the Theft Act 1968.

10 Dennant v Skinner and Collom [1948] 2 KB 164.

11 Heap v Motorists Advisory Agg Ltd [1923] 1 KB 577 at 583 per Lush J. For an archetypal recent illustration of what would have formerly (jurisdictional problems aside) comprised the offence of larceny by trick see: R v Atakpu (1993) Times, 22 March.

12 See text at n 43, infra, and R v Atakpu, supra, n 11.

13 Commentators such as Giles and Uglow who make clear their opposition to any assimilation of the s 15 offence into s I, fail to express any cogent reasons for their position: ‘Appropriation and Manifest Criminality in Theft’ 56 JCL 179.

14 [1971] 2 All ER 1253.

15 Ibid at 1255.

16 Ibid at 1254.

17 [1983] 3 All ER 288.

18 The civil law generally holds ownership to pass when payment is made: Lacis v Cashmarts [1969] 2 QB 400. Cf Lord Keith's reasoning in Corny which would not allow this to frustrate a theft charge: see text at n 43, infra.

19 See also: Anderton v Wish [1980] Crim LR 319 per Roskill LJ.

20 Lord Lowry's description in Gomez. See n 62, infra.

21 Supra, n 17 at 293.

22 This definition is clearly in keeping with the views of the Criminal Law Revision Committee who at para 35 of their report observed that ‘appropriation’ was synonymous with ‘fraudulent conversion’, the new term being preferred for its clarity and lack of technicality.

23 Lord Keith has pointed out in Gomcz that the singular act of switching the price labels is enough: see text at n 46, infra. This must be correct if the objective of the Theft Act is accepted as being to protect interfernce with property rights. Cf Giles and Uglow op cit, n 13 at 182.

24 It is acknowledged by Lords Keith and Lowry in Gomez, supra n 6, at 9 and 38, that no sensible distinction could be drawn between consent and authorisation and therefore the decisions could not be rationalised despite valiant efforts to the contrary by Parker LJ in Dobson, infra n 29 and O'Connor LJ in R v Philippou [1989] Crim LR 585.

25 Supra n 17 at 292.

26 Implicit in Lord Roskill's statement is the distinction between appropriation in its everyday sense and its technical, extended definition to be found in s 3(1) of the Theft Act 1968. Lord Roskill appears to be drawing from a treatise of Professor Glanville Williams who has himself asserted this distinction (Textbook of Criminal Law (1983, 2nd edn)).

27 See for example Eddy v Niman [1981] Crim LR 502.

28 Cf the judgment of Lord Keith in Gomez. See text at n 51, infra, according to whom an appropriation occurs as soon as the item is placed in the store's trolley.

29 Dobson u General Accident Fire and Life Assurance plc [1989] 3 All ER927. Approved by the House of Lords in Comer, supra n 6.

30 Ibid.

31 Supra n 14 at 1254.

32 Giles and Uglow op cit n 13, at 181, n 16 apparently consider that such an approach is heretical in that it: ‘devalues the whole distinction between consenting and non consenting victims’. Central to this paper is the premiss that there exists no value in retaining such a distinction. With respect, the authors have been distracted from the purpose of the Act by focusing upon the mean employed by D rather than the result suffered by V. They also charge that the approach favoured herein is likely to lead to uncertainty, however once it is accepted that real consent in the present context must be considered rare this objection disappears. Where it does exist the issue is likely to turn upon dishonesty as the company fraud cases illustrate. A postulated case of real consent negativing, however, the actus rcur of theft (but not the means rea) is the following: D, being illiterate, enters a supermarket and sees products which are being offered to the public gratuitously for promotional reasons. Unaware of this he helps himself to the product believing he is acting unlawfully. He is not. This is due entirely to the factual presence of the proprietor's actual consent which negatives an appropriation.

33 Supra n 29.

34 Section 24(4) of the Theft Act infrn n 70 was, strangely, not argued.

35 Sufis n 29 at 935.

36 Ibid at 930–93 1.

37 Ibid at 937.

38 [1991] 3 All ER 394, CA; [1993] I All ER 1, HL.

39 It is settled law that one who exceeds his authority may thereby commit an appropriation: A-G of Hong Kong v Nai-Keung [1988] Crim LR 125.

40 [199] 3 All ER 394 at 400.

41 Lord Lane's suggestion is also contrary to the dictum of Lord Roskill in Morris, supra n 17 at 295 endorsed by Lord Keith in Gomez, supra n 6 at 12. Indeed it is conceded in the text infra at n 68 et seq that s 1 is now virtually co-extensive with s 15 but that such a development, in encouraging the efficacy of the Theft Act, is to be welcomed.

42 Supra n 40 at 398.

43 Ibid. Lords Keith, Slynn, Jauncey, and Browne-Wilkinson. Lord Lowry dissenting.

44 Most notably the furore surrounding Lord Roskill's example of a prankster who switches labels in jest, itself a fertile source of academic comment, has finally been laid to rest. Lord Roskill's view that the prankster had not thereby appropriated the property was exposed by Lord Keith (supra n 6 at 9) as being plainly wrong in that it conflated the issues of actus reus and mens rea.

45 Ibid.

46 Ibid.

47 Cf Giles and Uglow, op cit n 13 at 182.

48 Supra n 6 at 9.

49 Supra n 6 at 13. The Court of Appeal decisions in R v Fritschy [1985] Crim LR 745 and R v Skipp [1975] Crim LR 114 in applying the aggressive definition to appropriation, were incorrect and were overruled. Supra n 6 at 13. The same must be true of the decision in R v Meech [1973] 3 All ER 939 which was not discussed in Gomez.

50 By including such early conduct within the actus reus of theft the House of Lords' decision will give rise to problems of jurisdiction where the fraudulent activity originates abroad: Atakpu, see n 11 supra. Cf Fritchy supra n 49.

51 See text at n 23 supra.

52 Supra n 6 at 9.

53 However the majority decision in Comer would seem to effect a reversal of the decision in Eddy v Niman Supra, n 27, with the accused now guilty of theft on account of his dishonest intentions when he put the items in the store's basket.

54 See n 74 infra.

55 Supra n 29.

56 Company fraud cases apart see text infra at n 73.

57 Supra n 17 endorsed by Lord Lowry in Gomez, see text infra at n 61.

58 See n 32 supra.

59 Supra n 6 at 38.

60 Emphasising Viscount Dilhorne's prefatory observation that the facts appeared to him to fall far short of establishing that Mr Occhi had in fact given his consent. See text supra at n 31.

61 Supra n 6 at 29.

62 Ibid at 22. Preferring his own ‘less aggressive’ definition for its greater portability throughout the Theft Act.

63 See n 22 supra.

64 Supra n 6 at 39.

65 This conclusion is made more compelling by the fact that s 4(1) which, supra, does apply to the deception offence, specifically provides that ‘property’ includes, inter alia, real property.

66 1 October 1992.

67 Which offence, untouched by the Act, continues to attract a maximum sentence often years. It is betrayed in para 38 of the CLRC report that one reason put forward by the majority for the retention of the two separate offences was the view that deception was often to be regarded as a less heinous crime: ‘a bogus beggar is regarded as a rogue but not as a thief, and so are his less petty counterparts’.

68 See para 38 of their report and supra n 67.

69 Op cit n 2 at 671.

70 Indeed s 24(4) of the Theft Act is opposed to rigid classifications providing that for the purposes of the Act goods obtained, inter alia, by deception are to be regarded as stolen.

71 See: Heap u Motorists Advisory Agency Ltd, supra n 11 and associated text.

72 See, for example, the judgments of Parker LJ in Dobson supra n 29 and Lord Lane in Gomez supra n 40 at 399–400. In this regard it is noteworthy that counsel for the insurers in the former case sought to distinguish Lawrence from their facts on the passing of possession/passing of property distinction. See text at n 9 supra.

73 See text supra at n 32.

74 Where real consent is genuinely believed by D to exist there can be no dishonesty: s 2(l)(b) of the Theft Act 1968. The bearing which consent may have upon dishonesty rather than appropriation was expressly acknowledged by Viscount Dilhorne in Lawrence, supra n 14 at 1255. See also the conclusion drawn by Lord Browne-Wilkinson in Gomez, supra n 6 at 40.

75 Salomon u A Salomon B Co Ltd [1897] AC 22.

76 The majority decision in Gomez facilitates this conclusion in holding that in any case the presence of consent is consistent with an appropriation. Cf Lord Lowry who asserted (supra n 6 at 36) that in the company fraud cases there is novalid consent and accordingly Mom's would be applied in order to identify the appropriation from the ‘unilateral and non consensual’ act of the director.

77 Supru n 24 approved in Gomez by Lords Lowry and Browne-Wilkinson.

78 Cf R v Roffell [1985] VR 511; and R v McHugh and Tringham (1988) Cr App R 385 (not referred to in Philippou, but disapproved in Gomez) where Morris was applied in each case to deny the existence of an appropriation due to the presence of consent.

79 Considered by Lord Lowry in Gomez (supra n 6 at 38) to be an exercise which was ‘a complete waste of time’.