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DPP v Gomez [1993] AC 442 House of Lords


Gomez, was an assistant manager at an electrical goods shop. He along with other co-workers were asked by an acquaintance to supply goods from the shop in return for payment by two stolen building society cheques. Gomez prepared a list of goods to the value of the cheques which he submitted to the manager asking him to authorise the supply of the goods in return for a building society cheque in that sum. The manager instructed Gomez to confirm with the bank that the cheque was acceptable, and he told him that he had done so and that such a cheque was "as good as cash." The manager then authorised the transaction and the goods were delivered. The cheques were then dishonoured by the bank and the involvement of Gomez and the other employees was discovered. They were convicted of theft and appealed contending that as the manager had authorised the transaction there was no appropriation following R v Morris which required an adverse interference of the rights of an owner. It was contended on behalf of the Crown that this was in conflict with the House of Lords decision in Lawrence which held that an appropriation can occur notwithstanding the consent of the owner of the property.

Held:

The House of Lords followed Lawrence and upheld the convictions. An appropriation doesnot require absence of consent. The Lords were critical of Lord Roskill's analysis of appropriation in R v Morris.

Lord Keith of Kinkel:

"In my opinion Lord Roskill was undoubtedly right when he said in the course of the passage quoted that the assumption by the defendant of any of the rights of an owner could amount to an appropriation within the meaning of section 3(1), and that the removal of an article from the shelf and the changing of the price label on it constituted the assumption of one of the rights of the owner and hence an appropriation within the meaning of the subsection. But there are observations in the passage which, with the greatest possible respect to my noble and learned friend Lord Roskill, I must regard as unnecessary for the decision of the case and as being incorrect. In the first place, it seems to me that the switching of price labels on the article is in itself an assumption of one of the rights of the owner, whether or not it is accompanied by some other act such as removing the article from the shelf and placing it in a basket or trolley. No one but the owner has the right to remove a price label from an article or to place a price label upon it. If anyone else does so, he does an act, as Lord Roskiil puts it, by way of adverse interference with or usurpation of that right. This is no less so in the case of the practical joker figured by Lord Roskill than in the case of one who makes the switch with dishonest intent. The practical joker, of course, is not guilty of theft because he has not acted dishonestly and does not intend to deprive the owner permanently of the article. So the label switching in itself constitutes an appropriation and so to have held would have been sufficient for the dismissal of both appeals. On the facts of the two cases it was unnecessary to decide whether, as argued by Mr. Jeffreys, the mere taking of the article from the shelf and putting it in a trolley or other receptacle amounted to the assumption of one of the rights of the owner, and hence an appropriation. There was much to be said in favour of the view that it did, in respect that doing so gave the shopper control of the article and the capacity to exclude any other shopper from taking it. However, Lord Roskill expressed the opinion that it did not, on the ground that the concept of appropriation in the context of section 3(1) "involves not an act expressly or impliedly authorised by the owner but an act by way of adverse interference with or usurpation of those rights." While it is correct to say that appropriation for purposes of section 3(1) includes the latter sort of act, it does not necessarily follow that no other act can amount to an appropriation and in particular that no act expressly or impliedly authorised by the owner can in any circumstances do so. Indeed, Lawrence v. Commissioner of Metropolitan Police is a clear decision to the contrary since it laid down unequivocally that an act may be an appropriation notwithstanding that it is done with the consent of the owner."
 
Back to lecture outline on the law of theft or the defence of consent in Criminal Law