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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Lawrence v Commissioner of Police of the Metropolis [1971] UKHL 2 (30 June 1971) URL: http://www.bailii.org/uk/cases/UKHL/1971/2.html Cite as: [1972] AC 626, [1971] UKHL 2 |
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Parliamentary
Archives,
HL/PO/JU/4/3/1204
HOUSE OF LORDS
LAWRENCE
v.
COMMISSIONER OF POLICE FOR
THE METROPOLIS
Lord Donovan
Viscount
Dilhorne
Lord Pearson
Lord Diplock
Lord Cross
of Chelsea
Lord Donovan
my lords.
Viscount Dilhorne
MY LORDS,
The Appellant was convicted on
the 2nd December, 1969, of theft con-
trary to section 1(1) of the
Theft Act, 1968. On the 1st September, 1969,
a Mr. Occhi, an
Italian who spoke little English, arrived at Victoria Station
on
his first visit to this country. He went up to a taxidriver, the
Appellant,
and showed him a piece of paper on which an address in
Ladbroke Grove
was written. The Appellant said that it was very
far and very expensive.
Mr. Occhi got into the taxi, took one
pound out of his wallet and gave it
to the Appellant who then, the
wallet being still open, took a further six
pounds out of it. He
then drove Mr. Occhi to Ladbroke Grove. The
correct lawful fare
for the journey was in the region of 10s. 6d.
The Appellant was charged with
and convicted of the theft of the six
pounds.
In cross-examination, Mr. Occhi
when asked whether he had consented to
the money being taken, said
that he had " permitted ". He gave evidence
through an
interpreter and it does not appear that he was asked to explain
what
he meant by the use of that word. He had not objected when the
six
pounds were taken. He had not asked for the return of any of it.
It
may well be that when he used the word " permitted ",
he meant no more
than that he had allowed the money to be taken.
It certainly was not
established at the trial that he had agreed
to pay to the Appellant a sum
far in excess of the legal fare for
the journey and so had consented to the
acquisition by the
Appellant of the six pounds.
The main contention of the
Appellant in this House and in the Court of
Appeal was that Mr.
Occhi had consented to the taking of the six pounds
and that,
consequently, his conviction could not stand.
In my opinion, the facts of this
case to which I have referred fall far
short of establishing that
Mr. Occhi had so consented.
Prior to the passage of the
Theft Act, which made radical changes in and
greatly simplified
the law relating to theft and some other offences, it was
necessary
to prove that the property alleged to have been stolen was
taken
"without the consent of the owner" (Larceny Act,
1916, section 1 (D).
These words are not included in
section 1(1) of the Theft Act, but the
Appellant contended that
the subsection should be construed as if they were,
as if they
appeared after the word " appropriates ".
Section 1(1) reads as follows: —
" A person is guilty of
theft if he dishonestly appropriates property
" belonging to
another with the intention of permanently depriving the
"
other of it; and 'thief' and 'steal' shall be construed accordingly".
I see no
ground for concluding that the omission of the words "without
the
consent of the owner" was inadvertent and not deliberate, and to
read
the subsection as if they were included is, in my opinion,
wholly unwarranted.
2
Parliament by the omission of these words has relieved
the prosecution of
the burden of establishing that the taking was
without the owner's consent.
That is no longer an ingredient of
the offence.
Megaw L.J., delivering the judgment of the Court of
Appeal, said that
the offence created by section 1(1) involved
four elements: (i) a dishonest (ii)
" appropriation (iii) of
property belonging to another (iv) with the intention
" of
permanently depriving the owner of it."
I agree. That there was appropriation in this case is
clear. Section 3(1)
states that any assumption by a person of the
rights of an owner amounts
to an appropriation. Here there was
clearly such an assumption. That an
appropriation was dishonest
may be proved in a number of ways. In this
case it was not
contended that the Appellant had not acted dishonestly.
Section
2(1) provides, inter alia, that a person's appropriation of
property
belonging to another is not to be regarded as dishonest
if he appropriates
the property in the belief that he would have
the other's consent if the other
knew of the appropriation and the
circumstances of it. A fortiori, a person
is not to be
regarded as acting dishonestly if he appropriates another's
pro-
perty believing that with full knowledge of the circumstances
that other
person has in fact agreed to the appropriation. The
Appellant, if he believed
that Mr. Occhi, knowing that seven
pounds was far in excess of the legal
fare, had nevertheless
agreed to pay him that sum, could not be said to have
acted
dishonestly in taking it. When Megaw L.J. said that if there was
true
consent, the essential element of dishonesty was not established, I
under-
stand him to have meant this. Belief or the absence of
belief that the owner
had with such knowledge consented to the
appropriation is relevant to the
issue of dishonesty, not to the
question whether or not there has been an
appropriation. That may
occur even though the owner has permitted or
consented to the
property being taken. So proof that Mr. Occhi had con-
sented to
the appropriation of six pounds from his wallet without agreeing
to
paying a sum in excess of the legal fare does not suffice to show
that there
was not dishonesty in this case. There was ample
evidence that there was.
I now turn to the third element " property
belonging to another ". Mr.
Bach, Q.C., for the Appellant
contended that if Mr. Occhi consented to the
Appellant taking the
six pounds, he consented to the property in the money
passing from
him to the Appellant and that the Appellant had not,
therefore,
appropriated property belonging to another. He argued
that the old dis-
tinction between the offence of false pretences
and larceny had been pre-
served. I am unable to agree with this.
The new offence of obtaining
property by deception created by
section 15(1) of the Theft Act also contains
the words "
belonging to another". " A person who by any deception
"
dishonestly obtains property belonging to another with the intention
of per-
" manently depriving the other of it" commits
that offence. " Belonging to
" another " in section
1(1) and in section 15(1) in my view signifies no more
than that,
at the time of the appropriation or the obtaining, the
property
belonged to another with the words " belonging to
another" having the
extended meaning given by section 5. The
short answer to this contention
on behalf of the Appellant is that
the money in the wallet which he appro-
priated belonged to
another, to Mr. Occhi.
There was no dispute about the Appellant's intention
being permanently
to deprive Mr. Occhi of the money.
The four elements of the offence of theft as defined in
the Theft Act
were thus clearly established and, in my view, the
Court of Appeal was right
to dismiss the appeal.
Having done so, they granted a certificate that a point
of law of general
public importance was involved and granted leave
to appeal to this House.
Under the Administration of Justice Act,
1960. section 1(1), they have power
to grant such leave if they
think that a point of law of general public im-
portance is
involved and also that the point is one which ought to be
considered
by this House. The certificate granted does not state that
they
thought that the point was one which ought to be considered
by this House
but I infer that they were of that opinion from the
fact that leave to appeal
was granted.
3
The first question posed in the
certificate was "Whether section 1(1) of
" the Theft
Act, 1968, is to be construed as though it contained the words
"
' without having the consent of the owner' or words to that effect".
In
my opinion, the answer is clearly No.
The second question was:
"Whether the provisions of section 15(1) and
" of
section 1(1) of the Theft Act, 1968, are mutually exclusive in the
sense
" that if the facts proved would justify a conviction
under section 15(1) there
" cannot lawfully be a conviction
under section 1(1) on those facts". Again,
in my opinion, the
answer is No. There is nothing in the Act to suggest that
they
should be regarded as mutually exclusive and it is by no means
un-
common for conduct on the part of an accused to render him
liable to con-
viction for more than one offence. Not infrequently
there is some over-
lapping of offences. In some cases the facts
may justify a charge under
section 1(1) and also a charge under
section 15(1). On the other hand,
there are cases which only come
within section 1(1) and some which are only
within section 15(1).
If in this case the Appellant had been charged under
section
15(1), he would, I expect, have contended that there was no
decep-
tion, that he had simply appropriated the money and that he
ought to have
been charged under section 1(1). In my view, he was
rightly charged under
that section.
I must confess to some surprise
that a certificate for leave to appeal should
have been granted in
this case. While it may be true to say that few points
of law
affecting the general criminal law of the country are not points
of
general public importance, the second limb of section 1(1) of
the Adminis-
tration of Justice Act, 1960, is one to which great
regard should be had,
namely, that the point is one which ought to
be considered by this House.
I can say with some confidence
that prior to the Administration of Justice
Act, 1960, it is most
unlikely that the Attorney-General's fiat would have
been granted
for an appeal to this House in a case such as this.
For the reasons I have stated,
in my opinion this appeal should be
dismissed.
Lord Pearson
MY LORDS,
1 have read the opinion of my
noble and learned friend, Viscount Dilhorne,
and I agree with it;
and for the reasons given by him I would dismiss the
appeal.
Lord Diplock
MY LORDS,
I agree, for the reasons given
by my noble and learned friend, Viscount
Dilhorne, that this
appeal should be dismissed.
Lord Cross of Chelsea
MY LORDS,
I agree, for the reasons given
by my noble and learned friend, Viscount
Dilhorne, that this
appeal should be dismissed.
(316644) Dd. 197075 100 6/71 St.S.