R v Gomez [1993] AC 442

Dishonest appropriation of property by using stolen cheques to mislead shop manager

Facts

The defendant, Gomez (G) was an assistant shop manager. G colluded with two accomplices who were in possession of stolen cheques. In the knowledge that the cheques were stolen, G approached the shop manager and persuaded the shop manager to sell goods on the basis of the cheques.

Issue

The crime of “theft” in section 1 of the Theft Act 1968 requires, inter alia, “dishonest appropriation.” Section 3 of the 1968 Act expands the concept of “appropriation” to include “any assumption by a person of the rights of an owner.” According to Lawrence v Commissioner of Police of the Metropolis [1972] A.C. 626, all cases of obtaining by deception are capable of falling within section 1 of the 1968 Act. Accordingly, the Crown argued that it was not necessary to prove absence of consent as an element of theft in this case. In contrast, in R v Morris [1984] A.C. 320 the House of Lords had held that appropriation involves an element of adverse interference with or usurpation of some right of the owner.

Held

The House of Lords held that the proposition in Morris, if correct in law, applied only to appropriation in section 3 of the 1968 Act. Whilst appropriation included an act by way of adverse interference with or usurpation of the owner’s rights, it was not the case that no other act could amount to an appropriation. Following Lawrence, the Court held that there could be an “appropriation” even where the owner (i.e. the shop manager) consented. This case therefore introduces a subjective basis for appropriation and the manifest criminality required by an adverse assumption of rights is not required for a “dishonest appropriation.”