United Kingdom House of Lords Decisions

Viscount Dilhorne

MY LORDS,

" 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

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,

Lord Cross of Chelsea

MY LORDS,

(316644) Dd. 197075 100 6/71 St.S.