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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> R v Woodman [1974] EWCA Crim 1 (26 April 1974) URL: http://www.bailii.org/ew/cases/EWCA/Crim/1974/1.html Cite as: [1974] QB 754, 59 Cr App Rep 200, [1974] EWCA Crim 1, [1974] 2 All ER 955, [1974] 2 WLR 821, 138 JP 567

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice,
		26th April 1974.

THE LORD CHIEF JUSTICE: On the 4th October last at Bristol Crown Court the Appellant George Eli Woodman, together with Terence George Woodman, were convicted of theft. George Eli Woodman was fined and sentenced to a term of imprisonment in default of payment. Terence George Woodman was sentenced to imprisonment to run concurrently with an existing term which he was serving.

Both appealed against their conviction, but Terence George Woodman has since abandoned his appeal, and this Court is only concerned with George Eli Woodman.

The facts of the case were these. On the 20th March of last year the Appellant and his son, and another man called Davey who was acquitted, took a van to some premises at Wick near Bristol and loaded on to the van 1 ton 6 cwt. of scrap metal, which they proceeded to drive away.

The premises from which they took this scrap metal were a disused factory belonging to English China Clays, and the indictment alleged that the scrap metal in question was the property of English China Clays. Whether that was entirely true or not depends on the view one takes of the events immediately preceding this taking of the scrap metal, because what had happened, according to the prosecution evidence, was that the business run by English China Clays at this point had been run down. In August of 1970 the business had ceased. There was at that time a great deal of miscellaneous scrap metal on the site, and English China Clays, wishing to dispose of this, sold the scrap metal to the Bird Group of Companies, who thereupon had the right and title to enter on the site and remove the scrap metal which they had bought. They or their sub-contractor went on to the site. They took out the bulk of the scrap metal left there by English China Clays, but a certain quantity of scrap was too inaccessible to be removed to be attractive to the Bird Group of Companies so that it was left on the site and so it seems to have remained for perhaps a couple of years until the present Appellant and his son came to take it away, as I have already recounted.

Also in the history of the matter, and important in it, is the fact that when the site had been cleared by the Bird Group of Companies a barbed wire fence was erected around it obviously to exclude trespassers. The site was still in the ownership of the English China Clays and their occupation, and the barbed wire fence was no doubt erected by them. Within the barbed wire fence were these remnants of scrap which the Bird Group had not taken away.

English China Clays took further steps to protect their property because a number of notices giving such information as "Private Property. Keep Out" and "Trespassers will be prosecuted" were exhibited around the perimeter of the site. A Mr. Brooksbank, who was an employee of English China Clays, gave evidence that he had visited the site about half a dozen times over a period of two or three years, and indeed he had visited it once as recently as between January and March of 1973. He did not notice that any scrap metal had been left behind, and it is perfectly clear that there is no reason to suppose that English China Clays or their representatives appreciated that there was any scrap remaining on the site after the Bird Group had done their work.

When this matter came on before the Bristol Crown Court, at the close of the prosecution case when evidence had been led to deal with the facts I have referred to a submission was made to the learned Recorder that there was no case to answer, because it was said that upon that evidence there was no ground in law for saying that the theft had been committed.

By now of course it is the Theft Act which governs the matter, and so one must turn to see what it says. Section 1(1) provides: "A person is guilty of theft if he dishonestly appropriates property belonging to another". I need not go further because the whole of the debate turns on the phrase "belonging to another".

Section 5 of the Act expands the meaning of the phrase in these terms: "Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest".

The Recorder took the view that the contract of sale between English China Clays and the Bird Group had divested English China Clays of any proprietary right to any scrap on the site.

It is unnecessary to express a firm view on that point, but the Court are not disposed to disagree with that conclusion that the proprietary interest in the scrap had passed.

The Recorder also took the view on the relevant facts that it was not possible to say that English China Clays were in possession of the residue of the scrap. It is not quite clear why he took that view. It may have been because he took the view that difficulties arose by reason of the fact that English China Clays had no knowledge of the existence of this particular scrap at any particular time. But the Recorder did take the view that so far as control was concerned there was a case to go to the jury on whether or not this scrap was in the control of English China Clays, because if it was, then it was to be regarded as their property for the purposes of a larceny charge even if they were not entitled to any proprietary interest.

The contention before us today is that the learned Recorder was wrong in law in allowing this issue to go to the jury. Put another way, it is said that as a matter of law English China Clays could not on these facts have been said to be in control of the scrap.

We have formed the view without difficulty that the Recorder was perfectly entitled to do what he did, that there was ample evidence that English China Clays were in control of the site and had taken considerable steps to exclude trespassers as demonstrating the fact that they were in control of the site, and we think that in ordinary and straightforward cases if it is once established that a particular person is in control of a site such as this, then prima facie he is in control of articles which are on that site.

The point was well put in an article written by no lesser person than Mr. Wendell Holmes in his book "The Common Law", dealing with possession. Considering the very point we have to consider here, he said, and I take the extract from the Law Reports in the case of Hibbert v. McKiernan, 1948 2 King's Bench at page 147,

"There can be no animus domini unless the thing is known of; but an intent to exclude others from it may be contained in a larger intent to exclude others from the place where it is, without any knowledge of the object's existence."

A little further on he said

"In a criminal case, the property in iron taken from the bottom of a canal by a stranger was held well laid in the canal company, although it does not appear that the company knew of it, or had any lien upon it. The only intent concerning the thing discoverable in such instances is the general intent which the occupant of land has to exclude the public from the land, and thus, as a consequence, to exclude them from what is upon it."

So far as this case is concerned, arising as it does under the Theft Act, we are content to say that there was evidence of English China Clays being in control of the site and prima facie in control of articles upon the site as well. The fact that it could not be shown that they were conscious of the existence of this or any particular scrap iron does not destroy the general principle that control of a site by excluding others from it is prima facie control of articles on the site as well.

There has been some mention in argument of what would happen if in a case like the present, a third party had come and placed some article within the barbed wire fence and thus on the site. The article might be an article of some serious criminal consequence such as explosives or drugs. It may well be that in that type of case the fact that the article has been introduced at a late stage in circumstances in which the occupier of the site had no means of knowledge would produce a different result from that which arises under the general presumption to which we have referred, but in the present case there was in our view ample evidence to go to the jury on the question of whether English China Clays were in control of the scrap at the relevant time. Accordingly the Recorder's decision to allow the case to go to the jury cannot be faulted and the appeal must be dismissed.