Criminal Law

with
Shaveen Bandaranayake

Theft
Case Summaries

© Shaveen Bandaranayake 1
Theft

1. R v Aziz

Court of Appeal Criminal Division

BELDAM LJ, CONNELL, EBSWORTH JJ

The appellant and Mr Brar were apparently celebrating at the Sterling Hotel near
Heathrow. They decided to carry on the revelry of the evening by going to a club in
Ealing. They therefore summoned a taxi which arrived with a chauffeur called Mr
Johal. They entered the taxi; there was no discussion about the fare that was to be
paid. The distance between the hotel and the night club to which they directed the
driver to go in Ealing was about thirteen miles. All went well until they arrived at the
night club when the driver, Mr Johal, asked for a fare of fifteen pounds which was, so
far as the evidence went, the appropriate fare for that distance.

According to Mr Johal the appellant and Mr Brar disputed that this was a reasonable
fare for the journey, saying it was only four miles and it should be four pounds, or at
most five. With that Mr Johal spoke to his controller over the radio which was fitted in
the car and the controller confirmed that fifteen pounds was the appropriate fare. As is
often the case, the conversation could be heard by those who were in the taxi. The
controller said that if the passengers were unwilling to pay he should take them to the
police station. Whereupon the two said they would be delighted to go as they were CID
officers. That, of course, was not correct.

After further discussion Mr Johal said, "All right, I will take you back to your hotel",
but as he set off he decided that in fact he would go to the police station. On the way,
Mr Brar pulled out the lead which powered the radio and tried to ram the gear lever of

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 the car into reverse. One way or another a scuffle developed in the taxi so that Mr
Johal pulled into a garage and asked the assistant on duty there to call the police. He
had in the meantime used the central-locking mechanism in his taxi in order, as he
thought, to prevent the appellant and Mr Brar from escaping payment, but whilst he
was distracted in trying to get the police summoned Mr Brar managed to get out of the
car. He released the door on the appellant's side and they both of them ran off.

Mr Johal, on seeing this, started in pursuit and he described how he followed the
smaller one, who turned out to be the appellant, up a number of side roads and
eventually caught up with him. There is a dispute as to how far the appellant had
actually got, but it appears that he had gone about half a mile. Having stopped the
appellant, Mr Johal told him that the police were about to arrive and told him to get
back into the cab, which the appellant did.

Those were the short facts which the jury had to consider on the charge which required
the prosecution to prove that Mr Aziz, knowing that payment on the spot was required
for the fare to be paid, dishonestly made off without having paid and with the intent to
avoid payment.

Decision:

It is to be noted that the Act itself does not require payment to be made at any
particular spot. The words 'on the spot', or as the Criminal Law Revision Committee
paraphrased them, 'there and then', relate to the knowledge which the customer has to
have of when and where payment is to be made. The words 'dishonestly makes off
without having paid' are not qualified in any way and it is clear from some of the
decided cases that questions have arisen, in particular in relation to payment at
restaurants, as to where payment is expected to be made and whether a person has in
fact made off. Sometimes the words 'on the spot' have been used interchangeably with
the words 'at the spot' or 'from the spot', namely makes off from the spot where

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 payment is required. It may be that in particular cases that use of language creates no
confusion, but the words 'make off' involve a departure without paying from the place
where normally payment would be made. In the case of a taxi, payment may be made
whilst still sitting in the taxi, or it may be made by standing beside the window and
paying the taxi driver there. In this particular case the payment was asked for while
the fares were still within the cab. It became apparent then that they were disputing
the amount of the fare and Mr Johal obviously realised there was a prospect that they
did not intend to pay the standard fare for the journey. The fact that he then drove off
either to the police station, or somewhere else, locking the door, does not, in the view
of the Court, mean that when subsequently the appellant ran off from the taxi when it
stopped he could not be making off without having paid, dishonestly intending to
avoid payment.

The fact of the matter is that it is for the jury to say, on the evidence, whether the
person has made off with the necessary intention and without having paid. It may be
that at the time that a dispute arises about fare, for example, the passenger may
intend to pay what he regards as a reasonable sum, but if he cannot reach an
accommodation with the taxi driver and if he subsequently flees from the scene, or
escapes and makes off, he is nonetheless making off without payment. It is of course
at the time he makes off which is the critical time at which he has to have formed the
intention to avoid payment.

Appeal dismissed.

2. R v Lavender

Court of Appeal, Criminal Division

Underhill J and Judge Goddard QC

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 In May 2005, the defendant started work as a postman for Royal Mail. In October
2006, police officers obtained authority to conduct a search of his home. In the event,
24 delivery pouches were found. An investigation, subsequently conducted by Royal
Mail, revealed that 14 of the pouches contained some 431 items of ordinary post,
which had been postmarked at various dates between June 2005 and September
2006. The items were unopened, and the opinion was formed that the defendant had
had no intention to open them. On that basis, the defendant was charged with one
count of theft. A count of intentionally delaying postal packets contrary to s 83 of the
Postal Services Act 2000 was also preferred on the basis that about 9,500 items of
'junk mail' had been retained. The defendant pleaded guilty in respect of both counts
in the magistrates' court, and was committed to the Crown Court for sentence. At the
Crown Court, the judge noted that the defendant had two comparatively minor
convictions of no real materiality for the purposes of sentencing for the instant
offences. A pre-sentence report revealed that the defendant had suffered from a
serious drugs problem throughout the period of his employment, and that that had
affected his ability to complete his rounds, but by October 2006, he no longer had an
addiction to drugs. The report also concluded that there were no factors which
indicated a likelihood of re-offending, and that a community sentence would be
appropriate. The judge was of a different view, and imposed a sentence of eight
months' imprisonment for the theft, which was to run concurrently with a sentence of
one month imprisonment for intentionally delaying postal packets. The defendant
appealed against sentence.

He submitted that the imposition of custodial sentences was wrong in principle, and
that the total length of the sentences were manifestly excessive.

Appeal allowed.

It was a matter of serious importance that the public could place their trust in the
delivery of mail. Theft of an item of mail, whether for gain or not, had potential to

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 cause serious inconvenience, and often serious loss, for their intended recipient.

In the instant case, no exceptional circumstances were extant which could justify the
imposition of a non-custodial sentence. It was true that the defendant had not
committed the offences for gain, however, the substantial quantity of post which had
been withheld, and the prolonged period in which the offences had been committed,
pointed to the conclusion that there was no alternative, but to impose an immediate
custodial sentence. Notwithstanding those considerations, however, it could be said
that the offences were near the bottom of the scale of gravity, and as such a very short
prison sentence was all that was required.

Accordingly, the sentences which had been imposed would be quashed, and a total
sentence of four months' imprisonment would be substituted in its stead.

3. R v Ghosh

Court of Appeal Criminal Division

LORD LAND CJ, LLOYD, EASTHAM JJ

The defendant, a consultant who had been acting as a locum tenens at a hospital, was
charged on indictment with attempting to obtain, and obtaining, money by deception,
contrary to s 15(1)a (Section 15(1) provides: 'A person who by any deception dishonestly
obtains property belonging to another, with the intention of permanently depriving the
other of it, shall on conviction on indictment be liable to imprisonment for a term not
exceeding ten years'.)of the Theft Act 1968, by falsely pretending that money was due
to him in respect of an operation which had in fact been carried out by someone else
and/or under the national health service. His defence was that he had not acted
dishonestly because the sums in question were legitimately payable to him as

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 consultation fees. The judge directed the jury that it was for them to decide, by
applying their own standards of honesty, whether the defendant had acted 'dishonestly'
within the meaning of the 1968 Act. The defendant was convicted.

He appealed against conviction, contending that the judge had misdirected the jury.
The question arose whether the test of 'dishonesty' for the purposes of s 1(1) b (Section
1(1), so far as material, provides: '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.') of the
1968 Act was a subjective test descriptive of the accused's state of mind (ie whether the
accused had known he was acting dishonestly) or an objective test intended to
characterise a course of conduct (ie whether the accused had in fact acted dishonestly).

Decision:

(1) The question whether an accused person had acted dishonestly could not be
determined completely objectively by the jury applying their own standards of
honesty, because for the purposes of s 1(1) of the 1968 Act acting dishonestly
described not a course of conduct but a state of mind which could not be established
independently of the knowledge and belief of the accused. In determining whether the
accused had acted dishonestly, the test was first whether the accused's actions had
been dishonest according to the ordinary standards of reasonable and honest people
and if so, whether the accused himself had realised that his actions were, according to
those standards, dishonest. Thus a genuine belief by the accused that he was morally
justified in acting as he did was no defence if he knew that ordinary people would
consider such conduct to be dishonest.

(2) In so far as the judge had misdirected the jury, there had been no miscarriage of
justice because once the jury had rejected the defendant's explanation of what had
happened (which they clearly had), the finding of dishonesty was inevitable whichever
of the tests of dishonesty was applied. The appeal would accordingly be dismissed.

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 4. DPP v Gomez

House of Lords

The respondent, who was employed as the assistant manager of an electrical goods
shop, was approached by B, who asked to be supplied with quantities of electrical
goods from the shop in exchange for two stolen building society cheques which were
worthless. The respondent agreed and asked the shop manager to authorise the supply
of the goods against the cheques. The manager told him to find out from the bank
whether the cheques were acceptable and the respondent later pretended to have done
so and told him that the cheques were 'as good as cash'. The cheques were then used
for the purchase of goods to the value of over £16,000 and were later dishonoured on
presentation. The respondent was jointly charged with B and another with theft. At his
trial it was submitted that there was no case to answer, on the ground that the
electrical goods were sold to B pursuant to a contract of sale between B and the shop
(the owners of the goods) and although it was conceded that the contract had been
induced by the fraudulent misrepresentation of the respondent and that the manager
would not have agreed to the removal of the goods had he known the truth, the
manager had expressly authorised the goods to be removed and therefore there had
been no 'appropriation' within s 1(1) of the Theft Act 1968. The judge rejected that
submission and the respondent then pleaded guilty. He appealed on the ground that
the judge's ruling was wrong. The Court of Appeal held that there had been no
appropriation and accordingly it allowed the respondent's appeal and quashed his
conviction. The Crown appealed to the House of Lords.

Decision:

(Lord Lowry dissenting)- A person could be guilty of theft, contrary to s 1(1) of the 1968
Act, by dishonestly appropriating goods belonging to another if the owner of the goods
was induced by fraud, deception or a false representation to consent to or authorise the

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 taking of the goods, since it was the actual taking of the goods, whether with or without
the consent of the owner, in circumstances where it was intended to assume the rights
of the owner that amounted to the 'appropriation' and the fraud, deception or false
representation practised on the owner made the appropriation dishonest. It was
irrelevant that the taking of the goods in such circumstances could also constitute the
offence of obtaining property by deception under s 15(1) of the 1968 Act. It followed
that the respondent had been properly convicted. The Crown's appeal would therefore
be allowed and the conviction restored.

5. R v Turner (No 2)

Court of Appeal Criminal Division

LORD PARKER CJ, WIDGERY LJ AND BRIDGE J

The Appellant took his car to B's garage to be repaired. When the work was done the
appellant told B that he would return the next day to pay for the repairs and to take the
car away. A few hours later the appellant, without telling B, took the car from where it
had been parked in the road near B's garage. B reported the car's disappearance to the
police. B eventually discovered the car near the appellant's home. Initially the
appellant denied all knowledge of the incident to the police but later admitted that he
had taken the car away without paying but alleged that he had B's consent. In evidence
at his trial for theft of the car the appellant said: 'I believe that I was entitled in law to
do what I did'. The judge directed the jury (i) that they were not concerned whether or
not B had a lien on the car, the sole question being whether B had possession or control
of it, and (ii) that in order to find him guilty of theft it was essential to prove that the
appellant had acted dishonestly, and in weighing his evidence it was immaterial that he
had no basis in law for his belief that he had a claim of right to the car. On appeal
against conviction,

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 Decision:

The jury had been properly directed and the appeal would be dismissed because--

(i) there was no ground for qualifying the words 'possession or control' in s 5 a of the
Theft Act 1968, it being sufficient that the person from whom the property was
appropriated was at the time in fact in possession or control;

(ii) the test of dishonesty was the mental element of belief and the jury were
properly told that if the appellant believed that he had a right within the meaning of s
2(1)b of the Act, albeit there was none, he would fall to be acquitted’

6. Oxford v Moss

Crown Court

An information was preferred against a university student who had acquired the proof
of an examination paper, alleging that he had stolen certain intangible property,
namely, confidential information being the property of the Senate of the university. It
was agreed that the student had not intended permanently to deprive the university of
the proof itself. The justices dismissed the charge on the grounds that confidential
information was not intangible property within the Theft Act 1968 s 4: rather, the
confidence consisted in a right to control publication of the proof, which was a right
over property. The prosecutor appealed by case stated: Held there was no property in
the confidential information capable of being the subject of a charge of theft.

Decision:

Appeal dismissed.

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 7. R v Morris

Court of Appeal Criminal Division

LORD LANE CJ, O'CONNOR LJ AND TALBOT J

The defendant removed articles from shelves in a self-service store and attached in
place of or on top of the correct price labels price labels removed from lower-priced
articles in the store. He then paid at the check-out point the lower prices indicated on
the false labels. He was charged with theft of the articles contrary to s 1(1) a of the Theft
Act 1968. The judge directed the jury that the changing of the price labels amounted to
'appropriation' of the articles within s 3(1) b of the 1968 Act and that therefore the
defendant had committed theft by appropriation within s 1(1). The defendant was
convicted. He appealed on the ground of misdirection of the jury.

Decision:

For the purposes of ss 1 and 3(1) of the 1968 Act the term 'appropriates' meant taking
possession of an article and assuming any of the owner's rights in it: it was not
necessary for the prosecution to prove that possession was taken without the owner's
consent or that the defendant had assumed all the owner's rights. Accordingly, taking
an article from a supermarket shelf with a view to carrying it to the check-out was an
appropriation of the article for the purposes of s 3(1) since it amounted to the
assumption of one of the owner's rights, that of removing the article from the shelf,
notwithstanding that the taking would not have been without the owner's consent at
the time. It followed that the defendant had appropriated the articles, within s 3(1),
when he removed them from the shelves. Moreover, even if he did not have a dishonest
intent at the time and had thus come by the articles without stealing them,
nevertheless his subsequent switching of the price labels amounted to a 'later

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 assumption of a right to [them] by keeping or dealing with [them] as owner' and
therefore an appropriation within s 3(1).

Appeal dismissed.

Per curiam. Sections 1(1) and 15(1) c (Section 15(1), so far as material, provides:
'A person who by any deception dishonestly obtains property belonging to
another, with the intention of permanently depriving the other of it, shall on
conviction on indictment be liable to imprisonment ...) of the 1968 Act are not
mutually exclusive and therefore a person who dishonestly switches the price
label on goods in a store and thereby deceives the cashier at the check-out point
into charging too low a price for the goods is guilty of the offences of theft under
s 1(1) and obtaining property by deception under s 15(1).

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