McKnight v Davies [1974]

FACTS:-

The defendant was employed as a lorry driver. His duty was to deliver goods from his employer’s depot to shops, and on completion of deliveries to return the lorry to the depot. On the evening of 30 November 1972 the defendant, having completed his deliveries, was driving the lorry back to the depot when the roof of the lorry struck a low bridge. When he saw the damage to the lorry he was scared, and he drove it to a public house and had a drink. After that he drove three men to their homes on the outskirts of Cardiff, drove back to the centre of the city and had a drink at another public house, and then drove to the area where he lived and parked the lorry near his home. He drove the lorry to his employer’s depot at 6.20 a m on 1 December, the following day.

Section 12 of the Theft Act 1968 sets out:

“(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 …”

The question for the court was whether on the relatively simple facts the defendant was guilty of the offence charged.

The justices were of opinion that, when the defendant decided not to return the lorry immediately to the depot, he ceased to control it for his employer’s purposes and that his use of the lorry for his own purposes constituted an unlawful taking; and, accordingly, they convicted the defendant, and ordered him to be fined £5 and his driving licence to be endorsed with such conviction *6 and further ordered that he be disqualified (by virtue of section 93(3) of the Road Traffic Act 1972 ) for holding or obtaining a driving licence for six months.

The defendant appealed.

HELD:-

Lord Widgery CJ held that the decision of the Court of Appeal in Reg. v Phipps [1970] RTR 209 should be followed. Although it was not an answer in the present case for the Defendant to say that he was lawfully put in control of the vehicle by his 8 employers.

The difficulty Lord Widgery found was in defining the kind of unauthorised activity on the part of the driver, whose original control of the vehicle was lawful, which amounted to an unlawful taking for the purpose of s.12.   Not every brief, unauthorised diversion from his proper route by an employed driver in the course of his working day will necessarily involve a ‘taking’ of the vehicle for his own use. If, however, as in Reg. v Wibberley [1966] 2 QB 214 he returns to the vehicle after he has parked it for the night and drives it off on an unauthorised errand, he is clearly guilty of the offence. Similarly, if in the course of his working day, or otherwise while his authority to use the vehicle is unexpired, he appropriates it to his own use in a manner which repudiates the rights of the true owner, and shows that he has assumed control of the vehicle for his own purposes, he can properly be regarded as having taken the vehicle within s.12.

Lord Widgery held and concluded his judgement by stating that the defendant took the vehicle when he left the first public house. At that point he assumed control for his own purposes in a manner which was inconsistent with his duty to his employer to finish his round and drive the vehicle to the depot. I think that the justices reached the correct conclusion and I would dismiss the appeal.

May J and Bridge J agreed with the judgment of Lord Widgery and the appeal was dismissed.

Related posts:

1. R v Wibberley (Glen Merrie) [1966]
2. Mowe v Perraton [1952]
3. R v Lucas [1976]
4. R v Phipps 1970 and R. V Mcgill [1970]