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R v Marshall, Coombes & Eren [1998] 2 Cr App R 282 Court of Appeal

The appellants obtained unexpired travel tickets from commuters on the London Underground and sold them on to others. The trial judge ruled that the tickets remained the property of London Underground, that there had been an appropriation with intent to permanently deprive. He was going to leave the question of dishonesty to the jury. The defendants changed their plea to guilty then appealed against the judge's ruling with regards to intention to permanently deprive on the grounds that the tickets would be returned to London Underground and would have no less value or loss of virtue than when they had been issued. It was argued that the issuing of the ticket is analogous to the drawing of a cheque in that in each instance a chose in action is created which in the first case belongs to the customer and in the second to the payee. So the property acquired belonged to the customer and not London Underground and there can have been no intention on the part of the appellant to deprive London Underground of the ticket which would in due course be returned to the possession of London Underground.

Held:

The convictions were upheld. The appellants had intended to treat the tickets as their own to dispose of regardless of the other's rights within the meaning of s.6.

Mantell LJ:

"A 'chose in action' is a known legal expression used to describe all personal rights of property which can only be claimed or enforced by action, and not by taking physical possession." (See Talkington -v- Magee (1902) 2KB 427 per Channell at 230). On the issuing of an underground ticket a contract is created between London Underground and the purchaser. Under that contract each party has rights and obligations. Theoretically those rights are enforceable by action. Therefore it is arguable, we suppose, that by the transaction each party has acquired a chose in action. On the side of the purchaser it is represented by a right to use the ticket to the extent which it allows travel on the underground system. On the side of London Underground it encompasses the right to insist that the ticket is used by no one other than the purchaser. It is that right which is disregarded when the ticket is acquired by the appellant and sold on. But here the charges were in relation to the tickets and travel cards themselves and a ticket form or travel card and, dare we say, a cheque form is not a chose in action. The fact that the ticket form or travel card may find its way back into the possession of London Underground, albeit with its usefulness or 'virtue' exhausted, is nothing to the point. Section 6 (1) prevails for the reasons we have given."
 
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