(As approved by the Judge.)
LORD JUSTICE BRIDGE: On the 17th March this year at the Chichester Crown Court this appellant was convicted of taking a conveyance without authority. He was fined £15 and ordered to pay £15 towards the cost of the prosecution. He applied for leave to appeal against conviction and the learned single Judge to whom the matter was referred took the view that the application raised a question of law alone and that accordingly the applicant was entitled to appeal as of right. Lest there be any doubt whether the issue raised in the appeal is indeed one of law alone or one which turns upon a mixed question of law and fact, this Court grants any leave to appeal that may be necessary.
On Sunday morning the 2nd November last year, the appellant, his brother and his father drove in the brother's motor car from their home to a country estate known as the Racton Estate, They were armed with air rifles. The case for the Crown, for which there was, one must say, a good deal of circumstantial support, was that the object of their excursion was to go poaching. That at all events was the view taken by the gamekeepers employed on the estate. They approached the appellant's party and asked for their names and addresses. They were not forthcoming. The head gamekeeper decided to call the Police. He also decided to park his Land Rover in such a position as to obstruct the only escape route which could be taken by the appellant's party in the brother's motor car. The head gamekeeper was asked to move the Land Rover but declined to do so. There followed a scuffle between the head gamekeeper and the appellant's brother which resulted in due course in the brother being convicted of common assault. It was during this scuffle that the appellant got into the driving seat of the Land Rover, released the handbrake and coasted down the lane with the engine not switched on, travelling a distance of some 200 yards. The effect of that was to enable the appellant's brother's motor car to be driven off.
The relevant provisions of the section creating the offence of which the appellant was convicted, section 12 of the Theft Act 1968, are as follows:
"(1) Subject to subsections (5) and (6) below, a person shall be guilty of an offence if, without having the consent of the owner or other lawful authority, he takes any conveyance for his own or another's use....(6) A person does not commit an offence under this section by anything done in the belief that he has lawful authority to do it or that he would have the owner's consent if the owner knew of his doing it and the circumstances of it".
Subsection (7) contains a wide definition of the word "conveyance".
A submission of no case was made at the end of the prosecution case based upon the proposition that any taking by the appellant of the Land Rover had not been a taking for his own use. That submission was rejected by the learned Judge and the case was allowed to proceed.
Apart from the question whether the taking had been for the appellant's use, a defence was raised under subsection (6) that the appellant believed that he had lawful authority to move the Land Rover in the way he did. That was left to the jury with proper directions, as is conceded on the appellant's behalf, and no point is now taken on that aspect of the case. But as regards the contention that the appellant's taking had not been for his own use, the learned Judge directed the jury at page 31 of the transcript in these words:
"Well, members of the jury, you can take it as a matter of law from me that this defendant did take this conveyance, and you can also take it as a matter of law from me that on the facts of this case he took it for the use of himself."
Mr. Toulson, for whose interesting and careful argument we are extremely grateful, makes two submissions in summary. First, he submits that the case should have been withdrawn from the jury on the footing that there was indeed no evidence that the taking of the Land Rover was for the appellant's own use. Secondly, and alternatively, if he is wrong on the first submission he says that in any event the issue raised a question of fact which should have been left by the Judge to be determined by the jury.
It is convenient to say at the outset that no point turns in this appeal on the fact that the Land Rover's engine was not used by the appellant. Mr. Toulson does not suggest that the case falls to be decided any differently because the appellant was able to coast downhill for 200 yards than if he had driven 200 yards using the engine.
It is appropriate to recall that the present statutory offence created by section 12 of the Act of 1968 is defined in two respects in significantly different language from the language which was used earlier statutes, the latest embodiment prior to 1968 having been in section 217 of the Road Traffic Act 1960. Under that Act the offence was defined as committed by "A person who takes and drives away a motor vehicle without having either the consent of the owner or other lawful authority"
Some arguments have been addressed to us with respect to the supposed intention of the Legislature in effecting those changes in the definition of the offence, but in the event, having regard to the conclusion the Court has reached on a narrow point which we think is decisive of this appeal, it is unnecessary for us to express any opinion on those wider arguments.
Mr. Toulson's basic submission is in these terms. He contends that if a person moves a vehicle for the sole reason that it is in his way and moves it no further than is necessary to enable him to get past the obstruction, he is not taking that vehicle for his own use. The starting point of the argument is the decision of this court in R.v.Bogacki (1973) 1 Q.B., 832. In that case the three defendants were charged with attempting to take without authority a motor bus. The evidence showed that they had gone to a bus garage late at night and attempted to start the engine of a bus without success. The trial judge directed the jury as follows, adverting specifically to the change of language between section 12 of the Act of 1968 and section 217 of the Act of 1960. He said:
"The offence is not, I repeat, the offence is not taking and driving away, it is merely taking and taking, members of the jury, means assuming possession of an object for your own unauthorised use, however temporary that assumption of possession might be. Kay I give you an example. Suppose that you left your motor car parked in the car park behind a cinema, and you forgot to lock the door but you shut the door, and suppose that a man and a woman, some time later, when the motor car was unattended, came along, opened the door, got into the car, and had sexual intercourse in the car. This particular offence would then have been committed by them".
Later he said with respect to the defendants before him:
"The question is: Did they, without the permission of the owners, acquire possession, for however short a time, for their own unauthorised purpose? That is the question."
In giving the judgment of this court in that case Lord Justice Roskill said at page 837: "The word 'take' is an ordinary simple English word and it is undesirable that where Parliament has used an ordinary simple English word elaborate glosses should be put upon it. What is sought to be said is that 'take' is the equivalent of 'use' and that mere unauthorised user of itself constitutes an offence against section 12. It is to be observed that if one treats 'takes' as a synonym for 'uses', the subsection has to be read in this way: 'if..... he uses any conveyance for his own or another's use .....' That involves the second employment of the word 'use' being tautologous, and this court can see no justification where Parliament has used the phrase 'if..... he takes any conveyance for his own or another's use' for construing this language as meaning if he 'uses any conveyance for his own or another's use,' thus giving no proper effect to the words 'for his own or another's use.' For those reasons the court accepts Mr. Lowry's submission that there is still built in, if I may use the phrase, to the word 'takes' in the subsection the concept of movement and that before a man can be convicted of the completed offence under section 12 (1) it must be shown that he took the vehicle, that is to say, that there was an unauthorised taking possession or control of the vehicle by him adverse to the rights of the true owner or person otherwise entitled to such possession or control, coupled with some movement, however small .... of that vehicle following such unauthorised taking."
Basing himself on that decision, Mr. Toulson submits, cogently as we think, that since the concept of taking in the definition of the offence already involves moving the vehicle taken, the words "for his own or another's use" must involve something over and above mere movement of the vehicle. What then is the concept embodied in this phrase "for his own or another's use"?
On this point the argument ranged widely, but we hope that at the end of the day it is an adequate summary of the final submission made on it by Mr. Toulson to say that he contends that what is involved is that the conveyance should have been used as a conveyance, i.e. should have been used as a means of transport. That submission seems to us to be well-founded. Mr. Toulson points out that the mischief at which this section is aimed has been appropriately defined as "stealing a ride". The interpretation of the phrase "for his own or another's use" as meaning "for his own or another's use as a conveyance" would fall into line, we think, with the discriminations suggested in the 3rd edition of Smith & Hogan's Criminal Law (1973) at page 462, where the following passage occurs:
"But subject to the requirement of taking, the offence does seem, in essence, to consist in stealing a ride. This seems implicit in the requirement that the taking be for 'his own or another's use'. Thus if D releases the handbrake of a car so that it runs down an incline, or releases a boat from its moorings so that it is carried off by the tide this would not as such be an offence within the section."
Pausing at that point in the quotation from the textbook, the reason why neither of those examples would constitute an offence within the section would be that in neither case, although the conveyance had been moved, would it have been used as a conveyance.
The quotation from the textbook goes on:
"The taking must be for D's use or the use of another and if he intends to make no use of the car or boat there would be no offence under section 12. But it would be enough if D were to release the boat from its moorings so that he would be carried downstream in the boat."
In that case, since he would be carried downstream in the boat there would be a use of the boat as a conveyance, as a means of transporting him downstream.
So far the court is in agreement with Mr. Toulson's submissions. But then the next step has to be taken. The next step is, as Mr. Toulson submits, that merely to move a vehicle which constitutes an obstruction so that it shall be an obstruction no more cannot involve use of the vehicle as a conveyance. It is at this point that the submission requires to be carefully analysed.
Clearly one can envisage instances in which an obstructing vehicle was merely pushed out of the way a yard or two which would not involve any use of it as a conveyance. But the facts involved in the removal of the obstructing vehicle must be examined in each case.
Mr. Mathieson, for the Crown, meets this submission squarely by pointing to the circumstance that here the Land Rover was in the ordinary sense of the English language driven for 200 yards. Attention has already been drawn to the fact that no distinction was relied upon by Mr. Toulson between a vehicle driven under its own power and a vehicle driven by being allowed to coast down hill. Mr. Mathieson says that again, as a matter of ordinary use of English, in the course of driving the vehicle a distance of 200 yards the appellant was inevitably using it as a conveyance and that his motive for so doing is immaterial. This submission for the Crown, it is pointed out to us, is in line with another suggestion by Professor Smith in his textbook on the Law of Theft, 2nd edition, paragraph 317, where he says:
"Probably driving, whatever the motive, would be held to be 'use'".
In reply, Mr. Toulson submits that even if it be right that the appellant had in the ordinary sense of the word to drive the Land Rover for 200 yards, and even if that did involve its use as a conveyance, never-the-less the offence was still not made out because the purpose of the taking was not to use the conveyance as a conveyance but merely to remove it as an obstruction. He emphasises that the words of the section are: "takes for his own use", not "takes and uses". This is in our judgment a very subtle and refined distinction and if it were admitted it would open a very wide door to persons who take conveyances without authority and use them as such to dispute their guilt on the ground that the motive of the taking was something other than the use of the conveyance as such.
The short answer, we think, is that where as here, a conveyance is taken and moved in a way which necessarily involves its use as a conveyance, the taker cannot be heard to say that the taking was not for that use. If he has in fact taken the conveyance and used it as such, his motive in so doing is, Mr. Mathieson submits, quite immaterial. It follows, in our judgment, that the trial judge was right, not only to reject the submission of no case, but also to direct the jury as he did, that on the undisputed facts the appellant had taken the Land Rover for his own use. Accordingly the appeal will be dismissed.
(Costs of the Crown to be paid out of Central Funds)
