(Revised)
LORD JUSTICE EDMUND DAVIES: On the 24th September of last year at the Middlesex Sessions before Judge Ranking (sitting as the Deputy Chairman) George Andrew Bonner, Anthony Stuart Town, William Anderson and Michael Barry Town were all convicted of theft. Anderson and Michael Town were sentenced to nine months' imprisonment suspended for two years, while Bonner was sentenced outright to a term of nine months. Some days later before the same Court Anthony Town was in his turn sentenced to nine months suspended for two years. Bonner declined to be legally represented, but we are told that he discharged his own defence with considerable competence, but not with success.
All four now appeal against conviction on a certificate of the Deputy Chairman, and he has stated the question to be decided in these concise terms:
"Whether, having regard to decided cases and the provisions of the Theft Act 1968, the jury was misdirected on the law relating to the theft by a partner of partnership property".
In addition, Bonner applies for leave to appeal against sentence; but that application does not need to be considered. Bonner also seeks leave to appeal against conviction on the ground that the verdict was unsafe or unsatisfactory. We have come to the conclusion that that application is well-founded and that in itself entitles him to be acquitted of this offence: and the same is true of his three co-accused.
The facts which gave rise to this complicated trial were that on the 16th May last year Bonner and the other three appellants called at the house of a Mr. Webb. Putting it quite neutrally for the moment, Bonner and Webb were business associates. The defence was, in fact, that they were partners and, therefore, co-owners of all the property with which the trial was concerned. Having called with a van at Webb's house in the afternoon at a time when Webb was out, they broke the lock of a garage and splintered the door and, having gained access that way, they loaded some metal from inside the garage on to the van and Anthony Town and Anderson drove it away.
The prosecution said that they were stealing the metal: Anderson and Anthony Town and Michael Town claimed they were moving it for Bonner, who they thought had a right to do what he had asked them to do. Bonner's defence was that he honestly thought he had a right to take the lead as it was partnership property owned by himself and Webb and, in any event, he did not intend to deprive Webb of it permanently.
Webb's case at first was that there was no partnership at all, and then that it was not what he called "a true partnership". During his evidence he specifically denied that he had ever applied for registration in the Business Names Register of himself and Bonner as partners. But this Court has been furnished with a document, which unhappily was not before the lower Court. It is a certified copy of an application made on the 8th March 1966 for registration by a firm, and the business name is "J. Webb, Excavation & Demolition Co.", the partners are described as "Joseph Webb" and "George Andrew Bonner", and it was signed by each of them.
Bonner gave evidence that he and Webb had worked together on and off as equal partners since 1963 as demolition contractors at various sites. One such period began in October 1968, and he said that they agreed that each would take £25 a week from the profits. Webb had a sample billhead printed which was produced at the trial, which described the two men (he and Bonner) as "joint directors". Bonner said that the partnership income was put into Webb's account because he (Bonner) did not have one and he trusted Webb; but he complained that Webb nevertheless did not pay him (Bonner) the one-half of the profits to which he was entitled. Bonner asserted that they owned five vehicles jointly. For one job Webb put in a tender of only £5, but Bonner later put in a tender for £60, which was accepted after Webb had sent in a letter reading: "We wish to confirm Mr. Bonner's quotation of £60".
It appeared from the evidence that there had been a number of disputes between the two men. In the early days of May Bonner asked for a "square-up", but Webb told him there were no profits to share and added:
"You will get your wack out of the lorries when they have been sold".
Bonner, however, then indicated he was ending the partnership, and drove off in one of the lorries, which he regarded as his own. But a few days later (on the 10th or 11th May) Webb retrieved that lorry by driving it out of a tar park where Bonner had left it.
An astonishing incident occurred shortly thereafter. On the 16th May a Police Officer called on Bonner because Webb had alleged that Bonner was driving the lorry on the 20th March when it was untaxed; but it appeared that, as Webb knew perfectly well, on that day it had been driven by someone else, whose particulars Bonner was able to give to the Police.
Bonner said that he took the lead in the garage because it was partnership property, it having been obtained during their joint demolition of a number of properties. He said he thought he had a right to it: nevertheless he did not wish to keep it, he only wished to hold it as a kind of security until Webb paid him what he (Bonner) claimed was due out of the partnership profits.
In view of Webb's denial of a partnership, a whole series of witnesses were called to say that they had always regarded these two men as working in a partnership. But nevertheless Webb went into the box and said they had never had more than what he called a semi-partnership and that Bonner was never more than a glorified foreman whom Webb had sacked about six weeks before the alleged offence. He denied the story which had been put to him in cross-examination by Bonner, and asserted (a) that Bonner had no right in either the vehicles or the metal; and (b) that he had never been associated with Webb as a true partner.
As to the taking of the metal, Webb gave evidence that he arrived home on the 16th May and saw this van outside his house and a larger van in his drive, the four men in the act of taking the lead out of the garage and putting it into the larger van. He spoke of the breaking of the lock and the splintering of the garage door and someone saying "There he is" or "He is here". Webb said he told the men to put the metal back or he would call the Police, but they just drove off. He was hanging on to the vehicle for a while, but he was pulled away from it by Bonner. It was common ground that the metal was taken in daylight, that the garage could be seen from the road, that the van-driver did not attempt to dodge down quiet side streets, and that the load of metal was such that the van could not be driven very fast. If theft this was, it was indeed a very odd kind of theft.
Bonner gave evidence that when Webb arrived and asked
"What are you doing?"
he replied
"Minding my own business".
Upon Webb saying
"It's my metal"
Bonner said
"I think it is mine as well",
and Bonner then told Anthony Town to drive home while he (Bonner) stayed to sort the matter out. He had to pull Webb off the van, and Webb thereupon became, as he put it, "like a whining dog", saying
"You know you only have got to ask and you will get what you want ... You know you could have had this metal if you had asked for it".
Part of that evidence was denied by Webb when he gave testimony.
Michael Town gave evidence supporting what Bonner had said, and added that he had believed that Bonner was entitled to do that which he (Town) was assisting him in doing. Anderson and Anthony Town testified that Bonner had employed them to pick up the metal from Wembley, and they had no reason to doubt Bonner's entitlement to take the metal away. When Webb arrived they were not close enough to hear the dispute, Bonner told them to drive off, and when Webb intervened Anthony Town said
"If you have something to sort out, do it with George"
(i.e. Bonner); and that is exactly what they told the Police when they were first stopped.
Later Bonner and Michael Town, quite independently of each other, called at a Police Station and told the Officers substantially what they later said in evidence. Detective Constable Hammond gave evidence that he saw all the appellants together (except for Michael Town), he told them that Webb had accused them of theft and Bonner said
"O.K., if that's the case, I want to charge him. I told these two to take it. It's mine."
Anderson replied
"George told us it was his and that we'd be O.K."
Anthony Town said
"We were told it would be all right."
The Officer said
"If you thought that things would be all right, why did you drive away?",
and Anthony Town said
"We knew that if the Police came there would be trouble":
and so there would. Mr. Wright, who has said all that can be said by the Crown in discharging its duty to the Court, has conceded the reply of Anthony Town was quite equivocal. It was not challenged that when Bonner was charged he said
"This property is jointly owned by myself and Mr. Webb and as a result of Mr. Webb's action of stealing a lorry which I owned. I took the lead in retribution."
Mr. Wright concedes that that again is an equivocal remark.
Such in outline is the story of a case which was summed-up at considerable length and with the greatest possible care by the Deputy Chairman. It resulted in the conviction of all four men of theft, contrary to Section 1(1) of the Theft Act 1968. My Brothers and I had, independently and before we conferred about this matter, come to the conclusion that, unless the Crown could persuade us that there were cogent reasons to come to a different conclusion, the combination of circumstances in this case is such that ex facie the verdict of the jury was unsafe and unsatisfactory. It may be that Bonner is a guilty man: we have no means of telling that. But the business of this Court is to say whether, Bonner having submitted that the verdict of guilty was in all the circumstances unsafe and unsatisfactory, we think that his complaint is well-founded. We think that it is. And if he is to be discharged, it follows that so must the three other men. In our judgment, all four appeals must be allowed.
However, as (to the best of our belief) this is the first time that the position of partners has been considered since the passing of the Theft Act, 1968, and out of respect to Mr. Inglis-Jones for his most attractive submissions, we think it right to deal with the legal point which led to the learned Judge certifying the case as one fit for appeal.
Mr. Inglis-Jones has submitted that, even if (contrary to his basic submission) it would be going too far to say that a partner can never steal partnership property, yet, in the circumstances of this particular case, the offence of theft has not been made out. He has taken us back a long way in legal history. He has referred us to Morgan v. Marquis (1653 9 Exchequer 145) where Baron Parke dealt with the capacity of one tenant in common to maintain an action in conversion against his companions, and said (at page 147) that such an action was not maintainable unless there has been destruction of the particular chattel or something equivalent to its destruction.
We have also been referred to the decision of Baron Parke in Farrer v. Beswick (1836 Meeson and Welsby's Reports 682) where (at page 688) he said:
" I have always understood, until the doubt was raised in Barton v. Williams, that one joint-tenant or tenant in common of a chattel could not be guilty of a conversion by a sale of that chattel, unless it were sold in such a manner as to deprive his partner of his interest in it. A sale in market overt would have that effect."
Mr. Inglis-Jones has accordingly submitted that in the circumstances of this case a mere taking away of partnership property, even with the intention of keeping the other partner permanently out of possession of it, would not per se suffice to amount to theft. There would have to be something like destruction of the metal or its sale in market overt, which would have the effect (provided there was innocence in the buyer) of transferring a good title to him and so defeating the title of the deprived partner. Defending counsel summarised the matter by submitting that for there to be an "appropriation" within the Theft Act 1968 there must be a "conversion" of the property by one or other of the foregoing methods, neither of which was resorted to here. Therefore, so it is submitted, there was no theft.
Rejecting that submission, Judge Ranking directed the jury in these terms:
"... even if you are satisfied that there was a full partnership between Webb and Bonner, a partner has no right to take any partnership property with the intention of permanently depriving the other of his share. Therefore, even if Bonner was a partner of Webb, if he took that lead (which was partnership property) intending to deprive Webb permanently of his share and, when he did it, he knew perfectly well that he had no legal right to take it, then he is guilty of theft; he is guilty of the theft of the whole property, and not just guilty of the theft of Webb's share, because the whole of it was partnership property and it had not been divided ... and if one partner takes it he is guilty of stealing the whole of it".
Was this a misdirection? This Court is clearly of the opinion that it was not. Sections 1, 3 and 5 of the Theft Act, 1968, are here relevant. Section 1(1) reads:
"A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and 'theft' and 'steal' shall be construed accordingly."
Section 3 defines the word "appropriates" in these terms:
"Any assumption by a person of the rights of an owner amounts to an appropriation ...".
Section 5 defines the phrase, "belonging to another", used in Section 1.
Mr. Inglis-Jones has boldly submitted that, since the basic requirement of theft is the appropriation of property belonging to another, there can be no such appropriation by one co-owner of property which is the subject matter of the co-ownership or partnership; and that there can be no "assumption of the rights of an owner" in a case like the present, where one is dealing with (as Bonner claims) property belonging to a partnership.
The whole object of the Theft Act was to get away from the technicalities and subtleties of the old law. Mr. Inglis-Jones has not repeated before us an interesting submission which he made below; but, since we are dealing with this topic, we think that it might be helpful if we resurrect it and attempt to dispose of it now. His submission below went something on these lines: The Larceny Act 1916 had a special provision (Section 40(4)) that:
"If any person who is a member of any co-partnership or is one of two or more beneficial owners of any property, steals or embezzles any such property of or belonging to such co-partnership or to such beneficial owners he shall be liable to be dealt with, tried, and punished as if he had not been or was not a member of such co-partnership or one of such beneficial owners."
The parent of that provision was the Larceny Ac' 1868, a one-section Statute, and in R. v. Jesse Smith (187 1 Crown Cases Reserved 266) Chief Justice Bovill said, referring to the Larceny Act 1861: "At the time that Act (24 & 25 Vict. c. 96) was passed theft by a partner of the goods of the firm did not fall within the criminal law, either common or statute. This defect was supplied by 31 & 32 Vict. c. 116, which, after reciting that ' it is expedient to provide for the better security of the property of co-partnerships and other joint beneficial owners against offences by part owners thereof, and further to amend the law as to embezzlement,' proceeds to enact, by the first section, that if a partner, or one of two or more beneficial owners, shall steal, etc., any property of such co-partnership or such joint beneficial owners, 'every such person shall be liable to be dealt with, tried, convicted, and punished for the same as if such person had not been or was not a member of such co-partnership, or one of such beneficial owners'."
Mr. Inglis-Jones submitted that, there having been a special provision in the Larceny Act 1916, following upon the earlier Act, dealing with the position of a partner wrongfully treating partnership property, and there being no repetition of that statutory provision in the Theft Act, the inference is that the law has been changed and that it is no longer theft for a partner to deprive a co-partner of any of the partnership property even if it be done dishonestly and permanently.
I said a little earlier that the object of the Theft Act was to get rid of the subtleties and, indeed, in many cases the absurd anomalies of the pre-existing law. The view of this Court is that in relation to partnership property the provisions in the Theft Act have the following result: provided there is the basic ingredients of dishonesty, provided there be no question of there being a claim of right made in good faith, provided there be an intent permanently to deprive, one partner can commit theft of partnership property just as much as one person can commit the theft of the property of another to whom he is a complete stranger.
Early though these days are, this matter has not gone without comment by learned writers. Professor Smith in his valuable work on the Theft Act expresses his own view quite clearly in paragraph 80 under the heading "Co-owners and partners" in this way: "D and P are co-owners of a car. D sells the car without P's consent. Since P has a proprietary right in the car, it belongs to him under Section 5(1). The position is precisely the same where a partner appropriates the partnership property." In the joint work of Professor Smith and Professor Hogan, the matter is thus dealt with (Smith and Hogan's 'Criminal Law', 2nd Edition, 361): "... D and P may be joint owners of property. Obviously, there is no reason in principle why D should not be treated as a thief if he dishonestly appropriates P's share, and he is so treated under the Theft Act".
We thus have no doubt that there may be an "appropriation" by a partner within the meaning of the Act, and that in a proper case there is nothing in law to prevent his being convicted of the theft of partnership property. But this excursus is of an academic kind in the present case, for we have already indicated our view regarding the unsatisfactory and unsafe nature of the verdicts returned against each of these accused. In these circumstances, all four appeals are allowed.
