R v Turner (No 2)

Facts

Turner took his car to a garage for repair. When the repair was finished the car was left parked on the road outside the garage. Without paying for the repair, and without the knowledge of the garage proprietor, Turner took the car away using a spare key. He was charged with theft of his own car.

History

He was convicted of theft at trial and appealed to the Court of Appeal.

Issue

Whether a car owned by the defendant was property belonging to another within section 5(1) of the Theft Act 1968 when it was in the possession or control of a garage proprietor, and whether it mattered that the garage proprietor had no lien or other right to retain it.

Held

Appeal dismissed and the conviction for theft upheld. The car belonged to the garage proprietor, who had possession or control of it, for the purposes of the Act.

Ratio

• Property belongs to any person having possession or control of it under section 5(1) of the Theft Act 1968. The owner can therefore steal his own property from a person who has possession or control, and it is not necessary that the other person has a lien or any right to hold it as against the owner.

Key reasoning

• The words of section 5(1) are clear and refer to possession or control without qualification as to the lawfulness or the ground of that possession.
• The proprietor had the car in his possession and control at the garage, so it belonged to him for the purposes of the offence even though ownership remained with the defendant.
• The point of the provision is to protect the possession of the person who holds the property, so it does not matter that the defendant was owner.

Where it fits in the module

In the Property Offences topic the case frames the first element of theft, property belonging to another, and shows that ownership is not required for the property to belong to the victim. It sits with the other provisions of section 5 on property belonging to another, and with the debate on whether theft should protect possession as well as ownership. Students should ask whether the result is appropriate where the garage had no right to retain the car, and how dishonesty works where the owner believes he is entitled to his property.

Criticisms

• The result extends theft to an owner taking back his own property, which looks more like a civil wrong, and it has been argued that the criminal law is being used to enforce an unpaid debt.
• The reasoning turns on the bare words of the section and does not explain why possession without a right to retain should attract criminal protection against the lawful owner.
• The width of the rule depends on dishonesty to filter out unmeritorious prosecutions, which places the weight on a fact-sensitive question for the jury and creates uncertainty for owners who believe they are entitled to take their property back.