R v Gomez

Facts

Gomez, an assistant shop manager, persuaded the shop manager to sell electrical goods worth several thousand pounds to an accomplice and to accept in payment two building society cheques which Gomez knew to be stolen and worthless. The manager authorised the sale believing the cheques to be good. Gomez was charged with theft.

History

Gomez was convicted of theft at trial. The Court of Appeal quashed the conviction, holding that there was no appropriation because the manager had consented to the transfer of the goods. The prosecution appealed to the House of Lords on a certified point of law and the House of Lords allowed the appeal and restored the conviction.

Issue

Whether an appropriation occurs under section 3(1) Theft Act 1968 when the owner voluntarily transfers property to the defendant but does so because of the defendant's deception.

Held

The appeal was allowed. The House of Lords held that appropriation had occurred and restored the conviction for theft.

Ratio

• Appropriation under section 3(1) of the Theft Act 1968 is any assumption by a person of any of the rights of an owner, and an act can be an appropriation even though it is done with the owner's consent, whether or not that consent was obtained by deception.

The judgments

Key reasoning

• Section 3(1) of the Theft Act 1968 defines appropriation by reference to any assumption of the rights of an owner, and the court treated that language as neutral, not requiring that the owner be unwilling or that the act be unauthorised.
• The word 'assumption' does not imply lack of consent; it simply means taking on or adopting the rights of an owner.
• The decision in Lawrence, that an owner's consent does not prevent an act from being an appropriation, was preferred to the view in Morris that appropriation required an adverse interference with or usurpation of the owner's rights, and the House of Lords disapproved Morris to that extent.
• The mens rea of dishonesty and intention permanently to deprive remain the safeguards against criminalising innocent conduct.

Obiter

• The court indicated that the same principle applies whether the deception induces the owner to transfer possession or ownership.

Where it fits in the module

Gomez is the cornerstone of the appropriation debate in Topic 5 (Property Offences). It follows Lawrence (1972), where the owner's consent did not prevent appropriation, and disapproves the narrower view in Morris (1984) that appropriation required an adverse interference with the owner's rights. It was later applied in Hinks (2000), where the House of Lords held that receipt of a valid gift could still be an appropriation. The case illustrates the tension between a broad reading of assumption of the rights of an owner and the need to avoid criminalising ordinary commercial transactions.

Criticisms

• The broad definition of appropriation risks capturing conduct that is not morally culpable, such as a buyer who pays with a cheque that later bounces, because the seller consented to the transfer of ownership.
• The decision renders the concept of 'consent' almost irrelevant to the actus reus, shifting the entire normative weight onto the mens rea of dishonesty, which some argue is an unsatisfactory allocation of functions between actus reus and mens rea.
• It creates a divergence from the civil law concept of property transfer, since a voidable title passed by deception is treated as an appropriation even though the owner intended to transfer ownership.
• The reasoning in Gomez has been criticised for making the offence of theft overly expansive, potentially overlapping with fraud offences and blurring the distinction between theft and deception offences.