R v Lloyd

Facts

The defendant was a projectionist at a cinema. He allowed films belonging to others to be taken from the cinema, copied overnight to make pirate copies for sale, and returned to the cinema in time for the next showing. The films were returned in substantially the same state, and their value as films was not diminished by the borrowing.

History

The defendant was convicted after a trial in the Crown Court and appealed against conviction. The charges were framed around the taking of the films with intent to deprive the owners of them permanently.

Issue

Whether a taking of an article with the intention of returning it after a short time, so that it can be copied, is an intention permanently to deprive the owner within section 6 of the Theft Act 1968.

Held

Appeal allowed and the convictions quashed. The intention to return the films was not an intention permanently to deprive under section 6.

Ratio

• Section 6(1) treats an intention to treat the thing as his own to dispose of, regardless of the rights of the owner, as an intention permanently to deprive, and a borrowing counts only if it is for a period and in circumstances making it equivalent to an outright taking or disposal.
• That is so only where the goodness, the virtue or the practical value of the article has been exhausted by the time it is returned, which was not the case where films were returned undiminished and could still be shown.

Key reasoning

• The court analysed the borrowing provision in section 6 as an extension of the ordinary concept of intention permanently to deprive, to be applied only where the borrowing amounts to an outright taking in substance.
• Examples of the kind of case caught include a ticket borrowed for a use that exhausts its value and returned after it has been used, in contrast to a thing that has the same value on return.
• Because the films kept their full value and could be shown to audiences after copying, the borrowing fell short of the equivalence to an outright taking required.

Where it fits in the module

In the Property Offences topic the case is used to explore the meaning of intention permanently to deprive and the extent to which temporary taking is theft. It raises the policy question of whether copying or exploiting property without depriving the owner of the thing itself should fall within theft, or in another area of the law.

Criticisms

• The test that the virtue of the thing must be exhausted is vague and hard to apply to modern assets such as software and recordings, whose value may be harmed by copying even though the original is returned.
• The decision leaves a gap in the criminal law in that the real wrong, the infringement of rights in the films, is not caught by theft, which suggests that theft is the wrong tool for such conduct.
• The reasoning treats section 6 as a narrow gloss on the basic rule, which sits uneasily with the apparent breadth of the words regardless of the rights of the owner.