WITH THE INTENTION OF PERMANENTLY DEPRIVING THE OTHER OF IT (Hansard, 23 July 1968)

§ Mr. Elystan Morgan
I beg to move Amendment No. 2, in page 4, line 5, at end insert: ;and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal".

§ Mr. Deputy Speaker
With this Amendment, the House can also consider Amendment No. 3.

§ Mr. Morgan
These are drafting Amendments. Their only effect is to transfer the proposition at the end of subsection (2) of the Clause, namely, that a borrowing or a lending cannot amount to treating the property as the borrower's or lender's own to dispose of regardless of the other's rights, to the end of subsection (1). There are also some necessary adjustments made to the opening words. It has been suggested to the Government that the proposition would come in more appropriately at the end of subsection (1), and the Government have accordingly drafted these Amendments.

§ Sir J. Foster
I do not think that the hon. Gentleman can get away with saying that it is a drafting Amendment; he must explain what it means. It is not, to my mind, a drafting amendment to take a cumbrous and obscure passage and move it from the end of one subsection to the end of another. That is not a drafting amendment.
I invite the House to look at the words. What, apparently, it means is that a borrowing or lending of the person who is accused of theft cannot amount to a permanent deprivation of the property unless the borrowing is for a period and—I underline the word "and"—in circumstances making it equivalent to an outright taking or disposal.
The first criticism is that the borrowing or lending should be able to amount to a permanent deprivation if it is for an unlimited period. It is very difficult to see why, if the person suspected of theft borrows or lends some property for an indeterminate period, say for a period determinable on condition, that should 471 not be equivalent to a borrowing or lending which equals a permanent deprivation of property.
What is made even more difficult by the moving of this passage from subsection (2) to subsection (1) is that, as well, the circumstances must make it equivalent to an outright taking or disposal, so that where the last sentences make it equivalent to outright taking or disposal those are not enough to make it a permanent deprivation unless it is for a period as well. It is difficult to see the logic of that. If there are circumstances making it equivalent to outright taking or disposal, I would have thought that was sufficient to make it a permanent deprivation according to Clause 6(1).
The hon. Gentleman has not explained why it is thought that the passage should be moved from subsection (2) to subsection (1). I quite appreciate why he has avoided that, since it would involve telling the House what it means. The circumstances which make it preferable to move it from one to the other must depend on what it means. With great respect to him, I think he is not in accordance with the tradition of the House in saying it is a drafting Amendment. It is nothing of the sort; it is this: a particular sub-sentence means so-and-so and because it means so-and-so, it is not apt for subsection (2), but because it means so-and-so it is apt for subsection (1). I would ask him to explain what it means and why it is more apt for subsection (1) than for subsection (2).

§ Mr. Morgan
I have been invited to explain the exact meaning of this passage. I would plead that this is a drafting Amendment in the sense that it neither adds to nor detracts from anything that was contained in the totality of the Clause when it was moved as a new Clause in Committee. In that respect I submit that it is a drafting Amendment and no more.
1.30 a.m.
Two changes are involved. First, the position is moved from subsection (2) to the end of subsection (1), where it more properly belongs, and then it is put in a positive rather than in a negative form. I am sure that the hon. and learned Gentleman and his colleagues will agree that, in effect, if the Amendment is carried 472 the Clause will read no differently from how it read on leaving the Committee. The meaning of the words, therefore, takes us rather wider than the Amendment itself, but I would say that the whole purpose of the Clause itself and of this proposition is to place beyond any doubt what has already been an established pattern of law for upwards of 150 years. It is a restatement of the law with regard to those cases which might not literally amount to a deprivation of the ownership, which had been so regarded from time to time.
The proposition covers cases where a person has borrowed property either with the full consent of the owner or without that consent, and where he has acted in such a way in relation to that property as to show clearly that he is thereby either actually or constructively assuming the position of the owner. It would cover the case, in particular, of the person who borrows a chattel, pledges it, and then, perhaps by spending the money he receives therefore, makes it impossible or unlikely for him to be able to redeem it—

§ Sir J. Foster
Would not that situation come within the Clause, because he would be pledging it, not for a period? Will the hon. Gentleman explain why it has to be for a period? In the circumstances in which one pledges a chattel, one does not do it for a period.

§ Mr. Morgan
I am afraid that I cannot agree with the hon. and learned Gentleman's proposition. Both the circumstances and the period, in the sense that by depriving himself of the likelihood that he would be able to redeem it, would amount to a permanent exclusion of the ability to regain that chattel and thereby to pass it back to its original owner.
The case which comes most readily to mind in this connection is that of a person borrowing, say, a season ticket. If he borrows it merely to keep it for any reason whatever as a piece of cardboard having an intrinsic value of a fraction of a penny, no offence can be committed under the Clause. But let us assume that he uses the ticket in order to gain admittance to a certain performance or series of performances—let us say that he uses it for nineteen of twenty performances. He has, by that act, used 473 the season ticket in a situation which shows that he is not any longer acting as a borrower but as aqua owner of the ticket. There is a series of settled cases on such a question, the circumstances and the period put together show quite clearly that to all intents and purposes there is an intention to deprive the owner permanently of the chattel.