Law Report: 11 march 1998; Resale of unexpired tickets amounted to theft

Regina v Marshall and others; Court of Appeal (Criminal Division) (Lord Justice Mantell, Mrs Justice Ebsworth and Judge Martin Stephens QC) 6 March 1998

THE OBTAINING of used but unexpired tickets or travel cards from members of the public at London Underground stations and their resale to other potential customers amounted to theft.

The Court of Appeal dismissed the appeals of Adrian John Marshall, Robert Peter Coombes and Birol Eren against their convictions of theft on pleas of guilty tendered after a ruling by the judge.

Each of the three appellants had been observed and recorded by video cameras at Victoria Underground Station obtaining underground tickets or travel cards from members of the public passing through the barriers, and reselling them to other potential customers. At a pre-trial hearing the judge had heard legal argument as to whether or not the appellants were liable to be convicted of theft on the basis of certain agreed facts. He ruled that they were, and in consequence they changed their pleas to guilty.

Nigel Taylor (Registrar of Criminal Appeals) for Marshall and Coombes; Jonathan D. Simpson (Registrar of Criminal Appeals) for Eren; Roger Smart (Crown Prosecution Service) for the Crown.

Lord Justice Mantell said that the submission made to the judge and repeated on appeal was that in the circumstances, although there had been an assumption of the rights of the owner of the ticket which amounted to an appropriation contrary to section 3 of the Theft Act 1968, there had been no intention on the part of the appellants to deprive London Underground of the ticket. They had intended either to return them directly to London Underground or to do so through the third party buyer without resale to London Underground and without any loss in the virtue of the ticket when returned.

It was submitted that section 6(1) of the 1968 Act, which provided,

A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other's rights; and borrowing or lending of it might amount to so treating it, but only if the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal

did not apply, as it was only to be resorted to when there was a resale of the property to the original owner, and, further, that the issuing of the ticket was analogous to the drawing of a cheque in that in each case a chose in action was created, which in the first instance belonged to the customer, and in the second to the payee. So by parity of reasoning with that advanced by Lord Goff in R v Preddy [1996] 3 WLR 255 the property acquired belonged to the customer and not London Underground, and there could have been no intention on the part of the appellants to deprive London Underground of the ticket, which would in due course be returned to the possession of London Underground.

Attractive though that submission appeared at first blush, it could not be correct. A "chose in action" was a known legal expression used to describe all personal rights of property which could only be claimed or enforced by action, and not by taking physical possession. On the issuing of an underground ticket a contract was created between London Underground and the purchaser. Under that contract each party had rights and obligations, which were theoretically enforceable by action. It was arguable, therefore, that by the transaction each party had acquired a chose in action, on the one side the right to use the ticket to the extent to which it allowed travel on the underground system, and on the other side the right to insist that the ticket was used by no one other than the purchaser. It was that right which was disregarded when the ticket was acquired by the appellant and sold on.

In the present case, however, the charges were in relation to the tickets and travel cards themselves and a ticket form or travel card was not a chose in action. The fact that the ticket form or travel card might find its way back into the possession London Underground, albeit with its usefulness or "virtue" exhausted, was nothing to the point. The appellants having acknowledged by their pleas that they had been acting dishonestly, there was no reason to consider the convictions unsafe, and the appeals would be dismissed.

Kate O'Hanlon, Barrister