Oxford v Moss (1979) 68 Cr App R 183

Smith J.:

This is a prosecutor's Appeal by way of Case Stated.

On May 5, 1976, an information was preferred by the prosecutor against the defendant
alleging that the defendant stole certain intangible property, namely, confidential
information being examination questions for a Civil Engineering Examination to be held
in the month of June 1976 at Liverpool University, the information being the property of
the Senate of the University, and the allegation being that the Respondent intended
permanently to deprive the said Senate of the said property.

The facts can be stated very shortly indeed. They were agreed facts. They are set out in
the case and they are as follows. In May 1976 the defendant was a student at Liverpool
University. He was studying engineering. Somehow (and this Court is not concerned
precisely how) he was able to acquire the proof of an examination paper for an
examination in Civil Engineering to be held in the University during the following month,
that is to say June 1976. Without doubt the proof, that is to say the piece of paper, was
the property of the University. It was an agreed fact, as set out in the case, that the
respondent at no time intended to steal what is described as “any tangible element”
belonging to the paper; that is to say it is conceded that he never intended to steal the
paper itself.

In truth and in fact, and in all common sense, what he was about was this. He was
borrowing a piece of paper hoping to be able to return it and not be detected in order
that he should acquire advance knowledge of the questions to be set in the examination
and thereby, I suppose, he would be enabled to have an unfair advantage as against
other students who did not possess the knowledge that he did.

By any standards, it was conduct which is to be condemned, and to the layman it would
readily be described as cheating. The question raised is whether it conduct which falls
within the scope of the criminal law.
The learned stipendiary magistrate at Liverpool was of the opinion that, on the facts of
the case, confidential information is not a form of intangible property as opposed to the
property in the proof examination paper itself, that is the paper and the words printed
thereon. He was of the opinion, further, that confidence consisted in the right to control
the publication of the proof paper and was a right over property other than a form of
intangible property.

Finally, he was of the opinion that by his conduct the respondent had gravely interfered
with the owner's right over the paper. He had not permanently deprived the owner of
any intangible property. Accordingly, the learned stipendiary magistrate dismissed the
charge.

The prosecutor appeals. The question for this Court, shortly put, is whether confidential
information can amount to property within the meaning of the Theft Act 1968. By section
1(1) of the statute: “A person is guilty of theft if he dishonestly appropriates property
belonging to another with the intention of permanently depriving the other of it; …”

By section 4(1): “‘property’ includes money and all other property, real or personal,
including things in action and other intangible property.”

The question for this Court is whether confidential information of this sort falls within that
definition contained in section 4(1). We have been referred to a number of authorities
emanating from the area of trade secrets and matrimonial secrets. In particular, we
were referred to Peter Pan Manufacturing Corporation v Corsets Silhouette Ltd [1963] 3
All ER 402, to Seager v Copydex Ltd [1967] 2 All ER 415, to the case of Argyll v Argyll
[1965] 2 WLR 790, and Fraser v Evans [1968] 3 WLR 1172.

Those are cases concerned with what is described as the duty to be of good faith. They
are clear illustrations of the proposition that, if a person obtains information which is
given to him in confidence and then sets out to take an unfair advantage of it, the courts
will restrain him by way of an order of injunction or will condemn him in damages if an
injunction is found to be inappropriate. It seems to me, speaking for my part, that they
are of little assistance in the present situation in which we have to consider whether
there is property in the information which is capable of being the subject of a charge of
theft. In my judgment, it is clear that the answer to that question must be no.
Accordingly, I would dismiss the Appeal.

Facts – The defendant, a university student obtained the proof of an upcoming

examination without any intention to steal the paper itself.

Issue – Whether confidential information is ‘property’ that can be subject to theft

pursuant to s.1(1) and 4(1) of the Theft Act 1968?

Decision – University’s appeal dismissed.

Holding – Confidential information is not a form of property pursuant to s.4(1) of the

Theft Act 1968.

Reasoning – Confidential information is not a form of ‘intangible property’ as opposed

to the ‘property’ in the exam paper itself, that is the paper and the words. Instead,
confidential information only gives a right to control the publication of the paper opposed
to rights over the paper and words itself.

Policy – The definition of ‘property’ under s.4(1) of the Theft Act 1968 should not be
extended to include confidential information because there is already an established
cause of action to address such an issue.
Eugene applies for a gun licence. He reads in the newspaper that it is government
policy that where a person has a history of violence they will not be granted a gun
licence because of the escalation of gun crime in the country. Eugene was acquitted of
assault occasioning actual bodily harm five years ago. Eugene is denied the gun licence
by the Licensing Authority. Eugene brought a case for judicial review against the
Licensing Authority claiming that he was treated unfairly and as such should be
retroactively awarded the gun licence. The judge found for the Licensing Authority and
held that Eugene was treated fairly in that once accused of violence, you will always
inherently be capable of violence. Therefore, persons who are inherently violent should
not be given guns because they will kill people. It is later discovered that the judge is an
anti-gun advocate who has previously said that guns are dangerous and nobody should
have any.

Facts – Eugene applied for a gun licence. His application was refused by the Licensing
Authority because he had a violent history. Eugene brought a claim for judicial review.

Issue – Whether the Licencing Authority’s decision to deny Eugene the gun licence is
subject to judicial review?

Decision – The claimant’s case was dismissed.

Holding – Persons with a history of violence will not be granted gun licences.

Reasoning – Persons accused of violence are inherently violent and as such should
not be given guns because they will kill people.

Policy – Guns are dangerous and they contribute to crime, as such no one should have
them in their possession.