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|Judgments - Hinks (On Appeal From The Court of Appeal (Criminal Division)
HOUSE OF LORDS
Lord Slynn of Hadley Lord Jauncey of Tullichettle Lord Steyn Lord Hutton Lord Hobhouse of Wood-borough
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION)
ON 26 OCTOBER 2000
LORD SLYNN OF HADLEY
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Steyn. For the reasons he gives I would dismiss the appeal. I do not consider it right in this case to depart from decisions of the House in Reg. v. Lawrence  A.C. 626 and Reg. v. Gomez  A.C. 442. Nor do I think it appropriate for the House to review the judge's summing up on dishonesty in this case but not doing so is not to be read as an approval of it.
LORD JAUNCEY OF TULLICHETTLE
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Steyn. For the reasons which he has given, I too, would dismiss the appeal.
Since the enactment of the Theft Act 1968 the House of Lords has on three occasions considered the meaning of the word "appropriates" in section 1(1) of the Act, namely in Reg. v. Lawrence  A.C. 626; in Reg. v. Morris  A.C. 320; and in Reg. v. Gomez  A.C. 442. The law as explained in Lawrence and Gomez, and applied by the Court of Appeal in the present case (Regina v. Hinks  2 Cr. App. Rep. 1) has attracted strong criticism from distinguished academic lawyers: see for example, J.C. Smith,  Crim. L.R. 304 and  Crim. L. R. 904; Edward Griew, The Theft Acts, 7th ed., (1995) 41-59; A.T.H. Smith, "Gifts and the Law of Theft," 1999 C.L.J. 10. These views have however been challenged by equally distinguished academic writers: Glazebrook, 1993 C.L.J. 191-194; Gardner, Property and Theft,  Crim. L.R. The academic criticism of Gomez provided in substantial measure the springboard for the present appeal. The certified question before the House is as follows:
Whether the acquisition of an indefeasible title to property is capable of amounting to an appropriation of property belonging to another for the purposes of section 1(1) of the Theft Act 1968.
In other words, the question is whether a person can "appropriate" property belonging to another where the other person makes him an indefeasible gift of property, retaining no proprietary interest or any right to resume or recover any proprietary interest in the property.
Before the enactment of the Theft Act 1968 English law required a taking and carrying away of the property as the actus reus of the offence. In 1968 Parliament chose to broaden the reach of the law of theft by requiring merely an appropriation. The relevant sections of the Act of 1968 are as follows:
"1. Basic definition of theft(1)
A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and "thief" and "steal" shall be construed accordingly.
A person's appropriation of property belonging to another is not to be regarded as dishonest - (a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or (b) if he appropriates the property in the belief that he would have the other's consent if the other knew of the appropriation and the circumstances of it; or (c) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.
Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner."
These provisions, and in particular the word "appropriates" in section 1(1), read with the explanatory provision in section 3(1), have been authoritatively interpreted by the House in Lawrence  A.C. 626 and Gomez  A.C. 442. It will be a matter for consideration whether such earlier rulings are dispositive of the question of law before the House. In the meantime, it is necessary to give a narrative of the background and the proceedings below.
In 1996 the appellant was 38 years old. She was the mother of a young son. She was friendly with a 53 year old man, John Dolphin. He was a man of limited intelligence. The appellant described herself as the main carer for John Dolphin. It is not in dispute that in the period April to November 1996 Mr. Dolphin withdrew sums totalling around £60,000 from his building society account and that these sums were deposited in the appellant's account. During the summer of that year Mr. Dolphin made withdrawals of the maximum permissible sum of £300 almost every day. Towards the end of this period Mr. Dolphin had lost most of his savings and moneys inherited from his father. In 1997 the appellant was charged with six counts of theft, five counts covering moneys withdrawn and one count a television set transferred by Mr. Dolphin to the appellant. In November 1977 the appellant stood trial on these counts in the Wolverhampton County Court before Judge Warner and a jury. It was the prosecution case that the appellant had influenced and coerced Mr. Dolphin to withdraw the moneys from his building society account, which were then deposited in her account. A substantial volume of evidence was led during the trial which lasted five days. A police analyst produced documents summarising the flow of funds from Mr. Dolphin's account to that of the appellant. Building society employees testified about the daily visits by the appellant and Mr. Dolphin to effect withdrawals. The thrust of their evidence was that the appellant did most of the talking and would interrupt Mr. Dolphin if he tried to say something. Dr. Fuller, a consultant psychiatrist, assessed Mr. Dolphin's I.Q. as in the range between 70 to 80 (the average being 90 to 110). He said that Mr. Dolphin was able to live a normal if undemanding life. Mr. Dolphin had worked as a packer in a dairy for some 30 years. Dr. Fuller described him as naïve and trusting and having no idea of the value of his assets or the ability to calculate their value. Dr. Fuller accepted that Mr. Dolphin would be capable of making a gift and understood the concept of ownership. He thought that Mr. Dolphin was capable of making the decision to divest himself of money, but that it was unlikely that he could make the decision alone. Two police officers testified that after cautioning the appellant she denied "having any money" from Mr. Dolphin except for a single cheque which she said represented a loan. In a nutshell the prosecution case was that the appellant had taken Mr. Dolphin for as much as she could get.
The defence made a submission that in law there was no case to answer. The defence argument was that the moneys were a gift from Mr. Dolphin to the appellant, that the title in the moneys had passed to the appellant, and that there could therefore be no theft. The defence cited the writings of Professor Sir John Smith, Q.C. The judge rejected the submission and held that a gift was capable of amounting to an appropriation.
The appellant gave evidence. She did not dispute the fact of the withdrawal of moneys from the appellant's account and the deposit of the sums in her account. She admitted that she had accepted Mr. Dolphin's television set. She said that Mr. Dolphin had handed the moneys, as well as the colour television set, as gifts to her or her young son or as part of a loan. She denied the account of what she allegedly said to the police officers. She asserted that she had acted honestly throughout.
The judge then summed up to the jury. His direction on appropriation was as follows:
He directed the jury on dishonesty as follows:
The remainder of the summing up is not material to the certified question.
The judge had withdrawn one count of theft from the jury. On the remaining 5 counts of theft the jury returned unanimous verdicts of guilty. The judge sentenced the appellant to terms of 18 months imprisonment on each of the 5 counts, such terms to run concurrently. It is common ground that the jury must have accepted the prosecution case and must have rejected the appellant's explanations as untruthful.
The appellant appealed to the Court of Appeal. The Court of Appeal (Rose L.J., Vice President, Douglas Brown and Dyson JJ.) dismissed the appeal: Reg. v. Hinks  1 Cr. App. R. 1. In giving the judgment of the Court of Appeal Rose L.J. pointed out that, leaving aside the judge's ruling on a gift being capable of constituting an appropriation, and the related directions in his summing up, complaint was only made of two subsidiary aspects of the summing up. The Court of Appeal rejected those two grounds and they have not been renewed in the House. It is therefore only necessary to deal with the judgment of the Court of Appeal on the point of law comprised in the certified question. After an accurate review of the case law, and in particular the decisions of the House in Lawrence  A.C. 626 and Gomez  A.C. 442 Rose L.J. concluded, at p. 9:
This was the view of a strong Court of Appeal, experienced in this class of criminal work.
My Lords, counsel for the appellant has not expressly asked the House to depart from the previous decisions of the House. He did, however, submit with the aid of the writings of Sir John Smith that the conviction of a donee for receiving a perfectly valid gift is a completely new departure. Relying on the academic criticism of the earlier decisions of the House counsel submitted that their reach should not be extended. Counsel cited as evidence of the true intention of the draftsman a passage from a note by Sir John Smith on the decision in Hinks: 1998 Cr. L.R. 904. The passage reads as follows 904-905:
Sir John Smith returned to this point in "The Sad Fate of the Theft Act 1968", an essay in The Search for Principle, Essay in Honour of Lord Goff of Chieveley, ed. by W. Swadling and G Jones, p. 97, 100-101. While this anecdote is an interesting bit of legal history, it is not relevant to the question before the House. Given counsel's use of it, as well as aspects of Sir John Smith's writing on the point in question, which have played such a large role in the present case, it is necessary to state quite firmly how the issue of interpretation should be approached. In Black-Clawson International Ltd. v. Papierwerke Waldhoff-Anschaffenburg A.G.  A.C. 591, 613 Lord Reid observed:
This does not rule out or diminish relevant contextual material. But it is the critical point of departure of statutory interpretation. It also sets logical limits to what may be called in aid of statutory interpretation. Thus the published Eighth Report of the Criminal Law Revision Committee on Theft and Related Offences (1966) (Cmnd. 2977), and in particular para. 35, may arguably be relevant as part of the background against which Parliament enacted the Bill which became the Act of 1968. How far it in fact takes one is a matter considered in Gomez  A.C. 442. Relevant publicly available contextual materials are readily admitted in aid of the construction of statutes. On the other hand, to delve into the intentions of individual members of the Committee, and their communications, would be to rely on material which cannot conceivably be relevant. If statutory interpretation is to be a rational and coherent process a line has to be drawn somewhere. And what Mr. Fiennes wrote to the Larceny Sub-Committee was demonstrably on the wrong side of the line.
The starting point must be the words of the statute as interpreted by the House in its previous decisions. The first case in the trilogy is Reg. v. Lawrence 1971  A.C. 626 . The defendant, a taxi driver, had without objection on the part of an Italian student asked for a fare of £6 for a journey for which the correct lawful fare was 10s 6d. The taxi driver was convicted of theft. On appeal the main contention was that the student had consented to pay the fare. But it was clear that the appellant had not told the student what the lawful fare was. With the agreement of all the Law Lords hearing the case Viscount Dilhorne observed [at 631F-632G]:
Lord Dilhorne expressly added that belief that the passenger gave informed consent (i.e. knowing that he was paying in excess of the fare) "is relevant to the issue of dishonesty, not to the question whether or not there has been an appropriation": at p. 632D. The appeal was dismissed. The ratio decidendi of Lawrence, namely that in a prosecution for theft it is unnecessary to prove that the taking was without the owner's consent, goes to the heart of the certified question in the present case.
The second decision of the House was Reg. v. Morris in 1983  A.C. 320, a consolidated appeal involving two cases in each of which the defendant attached a price label to goods in a supermarket which showed a price lower than that which was properly payable for the goods. The defendant intended to pay the lower price at the checkout. In the first case the defendant's deception was detected at the checkout point and in the second he paid the lower prices at the checkout. He was convicted of theft in both cases. The House concluded that the defendant had been rightly convicted of theft on both counts. In each case the certified question was the rolled-up one whether there had been a "dishonest appropriation" of goods. These questions were answered in the affirmative. However, in the single substantive judgment Lord Roskill made an observation, which was in conflict with the ratio of Lawrence and had to be corrected in Gomez. Lord Roskill said, at p. 332D:
It will be observed that this observation was not necessary for the decision of the case: absent this observation the House would still have held that there had been an appropriation. Lord Roskill took the view that he was following the decision in Lawrence. It is clear, however, that his observation (as opposed to the decision in Morris) cannot stand with the ratio of Lawrence. And as his observation, cast in terms of "the honest customer", shows Lord Roskill conflated the ingredients of appropriation and dishonesty contrary to the holding in Lawrence.
The third decision of the House was in Reg. v. Gomez in 1992  A.C. 442. The defendant was employed as an assistant shop manager. He agreed with two accomplices that goods would be supplied by the shop in return for cheques which he knew to be stolen. He told the manager of the shop that the cheques were as good as cash. The Court of Appeal held that there was a voidable contract between the owner of the shop and the dishonest receivers of the goods; that the transfer was with the consent of the owner; and that accordingly there was no appropriation. The Court of Appeal quashed the conviction arising from a plea of guilty. The following question was certified at, p. 444B:
By a majority (Lord Lowry dissenting) the House answered branch (a) of the certified question in the affirmative and branch (b) in the negative. In crystalline terms Lord Keith of Kinkel speaking for all the numbers of the majority ruled at p. 464 C-D: (1) The meaning of the relevant provisions must be determined by construing the statutory language without reference to the report which preceded it, namely the Eighth Report of the Criminal Law Revision Committee on Theft and Related Offences (1966) (Cmnd. 2977). (2) The observations of Lord Roskill in Morris  A.C. 320 were unnecessary for the decision of that case; that they were in clear conflict with the ratio of Lawrence  A.C. 626; and that they were wrong. (3) Lawrence must be accepted as authoritative and correct, and "there is no question of it now being right to depart from it." At the same time Lord Keith, at p. 463 H, endorsed the judgment of Parker L.J. in the civil case of Dobson v. General Accident Fire and Life Assurance Corporation Plc.  1 Q.B. 274 where Parker L.J. highlighted the conflict between Lawrence  A.C. 626 and Morris  A.C. 320 and chose to follow Lawrence. (4) Any act may be an appropriation notwithstanding that it was done with the consent or authorisation of the owner. In Gomez  A.C. 442 the House was expressly invited to hold that "there is no appropriation where the entire proprietary interest passes": at 448B. That submission was rejected. The leading judgment in Gomez was therefore in terms which unambiguously rule out the submission that section 3(1) does not apply to a case of a gift duly carried out because in such a case the entire proprietary interest will have passed. In a separate judgment (with which Lord Jauncey of Tullichettle expressed agreement) Lord Browne-Wilkinson observed, at pp. 495H-496A:
In other words it is immaterial whether the act was done with the owner's consent or authority. It is true of course that the certified question in Gomez referred to the situation where consent had been obtained by fraud. But the majority judgments do not differentiate between cases of consent induced by fraud and consent given in any other circumstances. The ratio involves a proposition of general application. Gomez therefore gives effect to section 3(1) of the Act by treating "appropriation" as a neutral word comprehending "any assumption by a person of the rights of an owner." If the law is as held in Gomez, it destroys the argument advanced on the present appeal, namely that an indefeasible gift of property cannot amount to an appropriation.
Counsel for the appellant submitted in the first place that the law as expounded in Gomez and Lawrence must be qualified to say that there can be no appropriation unless the other party (the owner) retains some proprietary interest, or the right to resume or recover some proprietary interest, in the property. Alternatively, counsel argued that "appropriates" should be interpreted as if the word "unlawfully" preceded it. Counsel said that the effect of the decisions in Lawrence and Gomez is to reduce the actus reus of theft to "vanishing point" (see Smith and Hogan, Criminal Law, 9th ed., (1999) p. 505). He argued that the result is to bring the criminal law "into conflict" with the civil law. Moreover, he argued that the decisions in Lawrence and Gomez may produce absurd and grotesque results. He argued that the mental requirements of dishonesty and intention of permanently depriving the owner of property are insufficient to filter out some cases of conduct which should not sensibly be regarded as theft. He did not suggest that the appellant's dishonest and repellent conduct came within such a category. Instead he deployed four examples for this purpose, namely