Anderton (Respondent.)
v.
Burnside (A.P.)(Appellant)
(On Appeal from a Divisional Court of the
Queen’s Bench Division)
Regina (Respondent)
v.
Morris (Appellant.)
(On Appeal from the Court of Appeal (Criminal Division))
(Consolidated Appeals)
JUDGMENT
Die Jovis 13° Octobris 1983
Upon Report from the Appellate Committee to whom was
referred the Cause Anderton against Burnside and Regina
against Morris, That the Committee had heard Counsel as well
on Wednesday the 20th as on Thursday the 21st days of July
last upon the Petition and Appeal of James Burnside of 17
Keswick Court, Langley, Middleton, in the County of Greater
Manchester praying that the matter of the Order set forth
in the Schedule thereto, namely an Order of a Divisional
Court of Her Majesty’s High Court of Justice of the 5th day
of November 1982, might be reviewed before Her Majesty the
Queen in Her Court of Parliament and that the said Order
might be reversed, varied or altered or that the Petitioner
might have such other relief in the premises as to Her
Majesty the Queen in Her Court of Parliament might seem
meet; as also the Petition and Appeal of David Alan Morris
of Flat 3, 79 Grafton Road, Acton, London W3 praying that
the matter of the Order set forth in the Schedule thereto,
namely an Order of Her Majesty’s Court of Appeal (Criminal
Division) of the 24th day of March 1983, might be reviewed
before Her Majesty the Queen in Her Court of Parliament and
that the said Order might be reversed, varied or altered or
that the Petitioner might have such other relief in the
premises as to Her Majesty the Queen in Her Court of
Parliament might seem meet (which said Appeals were by an
Order of the House of the 7th day of June last Ordered to be
Consolidated); and Counsel having been heard on behalf of
Cyril James Anderton and Asda Stores Limited (on behalf of
Her Majesty) the Respondents to the said Appeals; and due
consideration had this day of what was offered on either
side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled. That the said Orders, of a Divisional Court of
Her Majesty’s High Court of Justice of the 5th day of
November 1982, and of Her Majesty’s Court of Appeal
(Criminal Division) of the 24th day of March 1983 complained
of in the said Appeals be, and the same are hereby, Affirmed
HOUSE OF LORDS
ANDERTON (RESPONDENT)
v.
BURNSIDE (A.P.) (APPELLANT)
(ON APPEAL FROM A DIVISIONAL COURT OF THE QUEEN’S
BENCH DIVISION)
REGINA (RESPONDENT)
v.
MORRIS (APPELLANT)
(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL
DIVISION)
(CONSOLIDATED APPEALS)
Lord Fraser of Tullybelton
Lord Edmund-Davies
Lord Roskill
Lord Brandon of Oakbrook
Lord Brightman
LORD FRASER OF TULLYBELTON
My Lords,
I have had the advantage of reading in draft the speech
prepared by my noble and learned friend, Lord Roskill. I entirely
agree with it, and for the reasons given by him I would answer
the certified questions in the way he proposes, and I would dismiss
both appeals.
LORD EDMUND-DAVIES
My Lords,
Having had the advantage of reading in draft form the
speech prepared by my noble and learned friend, Lord Roskill, I
too would answer the questions certified in these appeals in the
manner indicated by him and dismiss both appeals.
– 1 –
LORD ROSKILL
My Lords,
These two consolidated appeals, one from the Court of
Appeal (Criminal Division), the other from the Divisional Court,
have been brought by leave of your Lordships’ House in order that
controversial questions of law arising from the dishonest practice
of label switching in connection with shoplifting in supermarkets
may be finally decided. These matters have been in controversy
for some time and have been the subject of judicial decisions
which are not always easy to reconcile as well as disagreement
between distinguished academic lawyers.
The facts giving rise to these appeals are simple. Morris,
the appellant from the Court of Appeal (Criminal Division), on the
30th October 1981 took goods from the shelves of a supermarket.
He replaced the price labels attached to them with labels showing
a lesser price than the originals. At the checkout point he was
asked for and paid those lesser prices. He was then arrested.
Burnside, the appellant from the Divisional Court, was seen to
remove a price label from a joint of pork in the supermarket and
attach it to a second joint. This action was detected at the
checkout point but before he had paid for that second joint which
at that moment bore a price label showing a price of £2.73
whereas the label should have shown a price of £6.91 1/2. Burnside
was then arrested.
The only relevant difference between the two cases is that
Burnside was arrested before he had dishonestly paid the lesser
price for the joint of pork. Morris was arrested after he had paid
the relevant lesser prices. Morris was tried in Acton Crown Court
on two charges of theft contrary to section 1(1) of the Theft Act
1968. A third count of obtaining property by deception contrary to
section 15 of that Act appeared in the indictment but the learned
Assistant Recorder did not take a verdict upon it and ordered that
count to remain on the file. Morris appealed. The Court of
Appeal (Criminal Division) (Lord Lane C.J., O’Connor L.J. and
Talbot J.) dismissed his appeal in a reserved judgment given on the
8th March 1983 by the learned Lord Chief Justice.
Burnside was convicted at Manchester Magistrates Court on
the 27th January 1982 on a single charge of theft contrary to
section 1(1) of the Theft Act. He appealed by way of case stated.
On the 5th November 1982, the Divisional Court (Ackner L.J. and
Webster J.) dismissed the appeal.
Both the Court of Appeal (Criminal Division) and the
Divisional Court granted certificates. The former certificate read
thus:
“If a person has substituted on an item of goods displayed in
“a self-service store a price label showing a lesser price for
“one showing a greater price, with the intention of paying
“the lesser price and then pays the lesser price at the till
“and takes the goods, is there at any stage a ‘dishonest
“appropriation’ for the purposes of section 1 of the Theft
“Act 1968 and if so, at what point does such appropriation
“take place.”
– 2 –
The certificate in the latter case reads:
“If a person has substituted on an item of goods displayed in
“a self-service store a price label showing a lesser price
“for one showing a greater price, with the intention of
“paying the lesser price, and then pays the lesser price at
“the till and takes the goods, is there at any stage a
“‘dishonest appropriation’ for the purposes of section 1 of
“the Theft Act 1968.”
The two certificates though clearly intended to raise the
same point of law are somewhat differently worded and, with
respect, as both learned counsel ultimately accepted during the
debate before your Lordships, do not precisely raise the real issue
for decision, at least in the terms in which it falls to be decided.
My Lords, in his submissions for the appellants, which were
conspicuous both for their clarity and their brevity, Mr. Denison
Q.C. urged that on these simple facts neither appellant was guilty
of theft. He accepted that Morris would have had no defence to
a charge under section 15(1) of obtaining property by deception ‘for
he dishonestly paid the lesser prices and passed through the
checkpoint having done so before he was arrested. But Morris, he
said, was not guilty of theft because there was no appropriation by
him before payment at the checkpoint sufficient to support a
charge of theft, however dishonest his actions may have been in
previously switching the labels.
Mr. Denison pointed out that if, as he accepted, an offence
was committed against section 15(1) and if the prosecution case
were right, Morris would be liable to be convicted of obtaining
property by deception which he had already stolen – a situation
which learned counsel suggested was somewhat anomalous.
As regards Burnside, Mr. Denison submitted that for the
same reason there was no appropriation before his arrest sufficient
to support a charge of theft. He also submitted that Burnside’s
actions however dishonest would not support a charge of
attempting to obtain property by deception contrary to section 15(1)
since his dishonest act was no more than an act preparatory to
obtaining property by deception and was not sufficiently proximate
to an attempt to obtain property by deception.
My Lords, if these submissions be well founded it is clear
that however dishonest their actions, each respondent was wrongly
convicted of theft. The question is whether they are well
founded. The answer must depend upon the true construction of
the relevant sections of the Theft Act 1968 and it is to these that
I now turn. For ease of reference I set them out:
“1.-(1) 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.
“(2) It is immaterial whether the appropriation is made
“with a view to gain, or is made for the thief’s own
“benefit.
– 3 –
“(3) The five following sections of this Act shall have
“effect as regards the interpretation and operation of this
“section (and, except as otherwise provided by this Act,
“shall apply only for the purposes of this section).
“2.-(1) A person’s appropriation of property belonging to
“another is not to be regarded as dishonest –
“(a) if he appropriates the property in the belief that he
“has in law the right to deprive the other of it, on behalf
“of himself or of a third person; or
“(b) 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; or
“(c) (except where the property came to him as trustee
“or personal representative) if he appropriates the property
“in the belief that the person to whom the property belongs
“cannot be discovered by taking reasonable steps.
“(2) A person’s appropriation of property belonging to
“another may be dishonest notwithstanding that he is willing
“to pay for the property.
“3.-(1) Any assumption by a person of the rights of an
“owner amounts to an appropriation, and this includes, where
“he has come by the property (innocently or not) without
“stealing it, any later assumption of a right to it by keeping
“or dealing with it as owner.
“(2) Where property or a right or interest in property
“is or purports to be transferred for value to a person
“acting in good faith, no later assumption by him of rights
“which he believed himself to be acquiring shall, by reason
“of any defect in the transferor’s title amount to theft of
“the property.
“4.-(1) ‘Property’ includes money and all other property,
“real or personal, including things in action and other
“intangible property.”
It is to be observed that the definition of “appropriation” in
section 3(1) is not exhaustive. But section 1(1) and section 3(1)
show clearly that there can be no conviction for theft contrary to
section 1(1) even if all the other ingredients of the offence are
proved unless “appropriation” is also proved.
The starting point of any consideration of Mr. Denison’s
submissions must, I think, be the decision of this House in
Lawrence [1972] AC 626. In the leading speech, Viscount
Dilhorne expressly accepted the view of the Court of Appeal
(Criminal Division) in that case that the offence of theft involved
four elements, (1) a dishonest (2) appropriation (3) of property
belonging to another, (4) with the intention of permanently
depriving the owner of it. Viscount Dilhorne also rejected the
argument that even if these four elements were all present there
could not be theft within the section if the owner of the property
in question had consented to the acts which were done by the
– 4 –
defendant. That there was in that case a dishonest appropriation
was beyond question and the House did not have to consider the
precise meaning; of that word in section 3(1).
Mr. Denison submitted that the phrase in section 3(1) “any
“assumption by a person of the rights (my emphasis) of an owner
“amounts to an appropriation” must mean any assumption of “all
“the rights of an owner”. Since neither respondent had at the
time of the removal of the goods from the shelves and of the
label switching assumed all the rights of the owner, there was no
appropriation and therefore no theft. Mr. Jefferies Q.C. for the
prosecution, on the other hand, contended that the rights in this
context only meant any of the rights. An owner of goods has
many rights – they have been described as “a bundle or package of
“rights”. Mr. Jefferies contended that on a fair reading of the
subsection it cannot have been the intention that every one of an
owner’s rights had to be assumed by the alleged thief before an
appropriation was proved and that essential ingredient of the
offence of theft established.
My Lords, if one reads the words “the rights” at the opening
of section 3(1) literally and in isolation from the rest of the
section, Mr. Denison’s submission undoubtedly has force. But the
later words “any later assumption of a right” in subsection (1) and
the words in subsection (2) “no later assumption by him of rights”
seem to me to militate strongly against the correctness of the
submission. Moreover the provisions of section 2(l)(a) also seem to
point in the same direction. It follows therefore that it is enough
for the prosecution if they have proved in these cases the
assumption by the respondents of any of the rights of the owner
of. the goods in question, that is to say, the supermarket
concerned, it being common ground in these cases that the other
three of the four elements mentioned in Viscount Dilhorne’s speech
in Lawrence had been fully established.
My Lords, Mr. Jefferies sought to argue that any removal
from the shelves of the supermarket, even if unaccompanied by
label switching, was without more an appropriation. In one
passage in his judgment in Morris’s case, the learned Lord Chief
Justice appears to have accepted the submission, for he said at
page 31D of the record “. . . . It seems to us that in taking the
“article from the shelf the customer is indeed assuming one of
“the rights of the owner, the right to move the article from its
“position on the shelf to carry it to the checkout ….”.
With the utmost respect, I cannot accept this statement as
correct. If one postulates an honest customer taking goods from a
shelf to put in his or her trolley to take to the checkpoint there
to pay the proper price, I am unable to see that any of these
actions involves any assumption by the shopper of the rights of the
supermarket. In the context of section 3(1), the concept of
appropriation in my view 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. When the honest shopper acts
as I have just described, he or she is acting with the implied
authority of the owner of the supermarket to take the goods from
the shelf, put them in the trolley, take them to the checkpoint
and there to pay the correct price, at which moment the property
– 5 –
in the goods’ will pass to the shopper for the first time. It is
with the consent of the owners of the supermarket, be that
consent express or implied, that the shopper does these acts and
thus obtains at least control if not actual possession of the goods
preparatory, at a later stage, to obtaining the property in them
upon payment of the proper amount at the checkpoint. I do not
think that section 3(1) envisages any such act as an “appropriation”,
whatever may be the meaning of that word in other fields such as
contract or sale of goods law.
If, as I understand all of your Lordships to agree, the
concept of appropriation in section 3(1) involves an element of
adverse interference with or usurpation of some right of the
owner, it is necessary next to consider whether that requirement is
satisfied in either of these cases. As I have already said, in my
view mere removal from the shelves without more is not an
appropriation. Further, if a shopper with some perverted sense of
humour, intending only to create confusion and nothing more, both
for the supermarket and for other shoppers, switches labels, I do
not think that that act of label switching alone is without more an
appropriation, though it is not difficult to envisage some cases of
dishonest label-switching which could be. In cases such as the
present, it is in truth a combination of these actions, the removal
from the shelf and the switching of the labels which evidences
adverse interference with or usurpation of the right of the owner.
Those acts, therefore, amount to an appropriation and if they are
accompanied by proof of the other three elements to which I have
referred, the offence of theft is established. Further if they are
accompanied by other acts such as putting the goods so removed
and re-labelled into a receptacle, whether a trolley or the
shopper’s own bag or basket, proof of appropriation within section
3(1) becomes overwhelming. It is the doing of one or more acts
which individually or collectively amount to such adverse
interference with or usurpation of the owner’s rights which
constitute appropriation under section 3(1) and I do not think it
matters where there is more than one such act in which order the
successive acts take place, or whether there is any interval of
time between them. To suggest that it matters whether the
mislabelling precedes or succeeds removal from the shelves is to
reduce this branch of the law to an absurdity.
My Lords, it will have been observed that I have
endeavoured so far to resolve the question for determination in
these appeals without reference to any decided cases except
Lawrence which alone of the many cases cited in argument is a
decision of this House. If your Lordships accept as correct the
analysis which I have endeavoured to express by reference to the
construction of the relevant sections of the Theft Act, a trail
through a forest of decisions, many briefly and indeed inadequately
reported, will tend to confuse rather than to enlighten. There are
however some to which brief reference should perhaps be made.
First, McPherson (1972). Your Lordships have had the
benefit of a transcript of the judgment of Lord Widgery C.J. I
quote from page 3 of the transcript:
“Reducing this case to its bare essentials we have this:
“Mrs. McPherson in common design with the others takes
“two bottles of whisky from the stand, puts them in her
“shopping bag; at the time she intends to take them out
“without paying for them, in other words she intends to
“steal them from the very beginning. She acts dishonestly
“as the jury found, and the sole question is whether that is
“an appropriation of the bottles within the meaning of
“section 1. We have no hesitation whatever in saying that it
“is such an appropriation and indeed we content ourselves
“with a judgment of this brevity because we have been
“unable to accept or to find any argument to the contrary,
“to suggest that an appropriation is not effective in those
“simple circumstances.”
That was not, of course, a label switching case, but it is a plain
case of appropriation effected by the combination of the acts of
removing the goods from the shelf and of concealing them in the
shopping bag. McPherson is to my mind clearly correctly decided
as are all the cases which have followed it. It is wholly
consistent with the principles which I have endeavoured to state in
this speech.
It has been suggested that Meech (1974) 1 Q.B. 549, Skipp
(1975) Crim. L.R. 114 – your Lordships also have a transcript of the
judgment in this case – and certain other cases are inconsistent
with McPherson. I do not propose to examine these or other cases
in detail. Suffice it to say that I am far from convinced that
there is any inconsistency between them and other cases as has
been suggested once it is appreciated that facts will vary
infinitely. The precise moment when dishonest acts, not of
themselves amounting to an appropriation, subsequently, because of
some other and later acts combined with those earlier acts, do
bring about an appropriation within section 3(1), will necessarily
vary according to the particular case in which the question arises.
Of the other cases referred to, I understand all your
Lordships to agree that Anderton v. Wish (1981) 72 Cr. App. R. 23
was rightly decided for the reasons given. I need not therefore
refer to it further. Eddy v. Niman (1981) 73 Cr. App. R. 237 was
in my view also correctly decided on its somewhat unusual facts.
I think that Webster J., giving the first judgment, asked the right
question at page 241 of the report, though, with respect, I think
that the phrase “some overt act …. inconsistent with the true
“owner’s rights” is too narrow. I think that the act need not
necessarily be “overt”.
Kaur v. Chief Constable of Hampshire (1981) 72 Cr. App. R.
359 is a difficult case. I am disposed to agree with the learned
Lord Chief Justice that it was wrongly decided but without going
into further detail I respectfully suggest that it is on any view
wrong to introduce into this branch of the criminal law questions
whether particular contracts are void or voidable on the ground of
mistake or fraud or whether any mistake is sufficiently
fundamental to vitiate a contract. These difficult questions should
so far as possible be confined to those fields of law to which they
are immediately relevant and I do not regard them as relevant
questions under the Theft Act 1968.
My Lords, it remains briefly to consider any relationship
between section 1 and section 15. If the conclusion I have
– 7 –
reached that theft takes place at the moment of appropriation and
before any payment is made at the checkpoint be correct it is
wrong to assert, as has been asserted, that the same act of
appropriation creates two offences one against section 1(1) and the
other against section 15(1) because the two offences occur at
different points of time; the section 15(1) offence is not
committed until payment of the wrong amount is made at the
checkpoint while the theft has been committed earlier. It follows
that in cases such as Morris two offences were committed. I do
not doubt that it was perfectly proper to add the third count
under section 15(1) in this case. I think the Assistant Recorder
was right to leave all three counts to the jury. While one may
sympathise with his preventing them from returning a verdict on
the third count once they convicted on the theft counts if only in
the interests of simplification, the counts were not alternative as
he appears to have treated them. They were cumulative and once
they were left to the jury verdicts should have been taken on all
of them.
My Lords, these shoplifting cases by switching labels are
essentially simple in their facts and their factual simplicity should
not be allowed to be obscured by ingenious legal arguments upon
the Theft Act which for some time have bedevilled this branch of
the criminal law without noticeably contributing to the efficient
administration of justice – rather the reverse. The law to be
applied to simple cases, whether in magistrates’ courts or the
Crown Court, should if possible be equally simple. I see no reason
in principle why, when there is clear evidence of both offences
being committed, both offences should not be charged. But where
a shoplifter has passed the checkpoint and quite clearly has, by
deception, obtained goods either without paying or by paying only
a lesser price than he should, those concerned with prosecutions
may in future think it preferable in the interests of simplicity to
charge only an offence against section 15(1). In many cases of
that kind it is difficult to see what possible defence there can be
and that course may well avoid any opportunity for further
ingenious legal arguments upon the first few sections of the Theft
Act. Of course when the dishonesty is detected before the
defendant has reached the checkpoint and he or she is arrested
before that point so that no property has been obtained by
deception, then theft is properly charged and if appropriation,
within the meaning I have attributed to that word in this speech,
is proved as well as the other three ingredients of the offence of
theft, the defendant is plainly guilty of that offence.
My Lords, as already explained I have not gone through all
the cases cited though I have mentioned some. Of the rest those
inconsistent with this speech must henceforth be treated as over-
ruled.
I would answer the certified questions in this way:
“There is a dishonest appropriation for the purposes of the
“Theft Act 1968 where by the substitution of a price label
“showing a lesser price on goods for one showing a greater
“price, a defendant either by that act alone or by that act
“in conjunction with another act or other acts (whether done
“before or after the substitution of the labels) adversely
“interferes with or usurps the right of the owner to ensure
– 8 –
“that the goods concerned are sold and paid for at that
“greater price.”
I would dismiss these appeals.
LORD BRANDON OF OAKBROOK
My Lords,
I have had the advantage of reading in draft the speech
prepared by my noble and learned friend, Lord Roskill. I agree
with it, and for the reasons which he gives I would dismiss both
appeals.
LORD BRIGHTMAN
My Lords,
I would dismiss these appeals for the reasons given by my
noble and learned friend, Lord Roskill.
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