|Judgments - Hinks (On Appeal From The Court of Appeal (Criminal Division)
S makes a handsome gift to D because he believes that D has obtained a First. D has not and knows that S is acting under that misapprehension. He makes the gift. There is here a motivational mistake which, it is submitted, does not avoid the transaction. (Glanville Williams, Textbook, 1st ed, at p. 788).(2)
P sees D's painting and, thinking he is getting a bargain, offers D £100,000 for it. D realises that P thinks the painting is a Constable, but knows that it was painted by his sister and is worth no more than £100. He accepts P's offer. D has made an enforceable contract and is entitled to recover and retain the purchase price. (Smith and Hogan Criminal Law, 9th ed., p. 507-508).(3)
A buys a roadside garage business from B, abutting on a public thoroughfare; unknown to A but known to B, it has already been decided to construct a bypass road which will divert substantially the whole of the traffic from passing A's garage. There is an enforceable contract and A is entitled to recover and retain the purchase price. The same would be true if B knew that A was unaware of the intended plan to construct a bypass road. (Compare Lord Atkin in Bell v. Lever Brothers  A.C. 161, 224.)(4)
An employee agrees to retire before the end of his contract of employment, receiving a sum of money by way of compensation from his employer. Unknown to the employer, the employee has committed serious breaches of contract which would have enabled the employer to dismiss him without compensation. Assuming that the employee's failure to reveal his defaults does not affect the validity of the contract, so that the employee is entitled to sue for the promised compensation, is the employee liable to be arrested for the theft the moment he receives the money? (Glanville Williams: "Theft and Voidable Title"  Crim. L.R. 666, 672).
My Lords, at first glance these are rather telling examples. They may conceivably have justified a more restricted meaning of section 3(1) than prevailed in Lawrence  A.C. 626 and Gomez  A.C. 442. The House ruled otherwise and I am quite unpersuaded that the House overlooked the consequences of its decision. On the facts set out in the examples a jury could possibly find that the acceptance of the transfer took place in the belief that the transferee had the right in law to deprive the other of it within the meaning of section 2(1)(a) of the Act. Moreover, in such cases a prosecution is hardly likely and if mounted, is likely to founder on the basis that the jury will not be persuaded that there was dishonesty in the required sense. And one must retain a sense of perspective. At the extremity of the application of legal rules there are sometimes results which may seem strange. A matter of judgment is then involved. The rule may have to be recast. Sir John Smith has eloquently argued that the rule in question ought to be recast. I am unpersuaded. If the law is restated by adopting a narrower definition of appropriation, the outcome is likely to place beyond the reach of the criminal law dishonest persons who should be found guilty of theft. The suggested revisions would unwarrantably restrict the scope of the law of theft and complicate the fair and effective prosecution of theft. In my view the law as settled in Lawrence and Gomez does not demand the suggested revision. Those decisions can be applied by judges and juries in a way which, absent human error, does not result in injustice.
Counsel for the appellant further pointed out that the law as stated in Lawrence and Gomez creates a tension between the civil and the criminal law. In other words, conduct which is not wrongful in a civil law sense may constitute the crime of theft. Undoubtedly, this is so. The question whether the civil claim to title by a convicted thief, who committed no civil wrong, may be defeated by the principle that nobody may benefit from his own civil or criminal wrong does not arise for decision. Nevertheless there is a more general point, namely that the interaction between criminal law and civil law can cause problems: compare Beatson and Simester, "Stealing One's Own Property" (1999) 115 L.Q.R. 372. The purposes of the civil law and the criminal law are somewhat different. In theory the two systems should be in perfect harmony. In a practical world there will sometimes be some disharmony between the two systems. In any event, it would be wrong to assume on a priori grounds that the criminal law rather than the civil law is defective. Given the jury's conclusions, one is entitled to observe that the appellant's conduct should constitute theft, the only available charge. The tension between the civil and the criminal law is therefore not in my view a factor which justifies a departure from the law as stated in Lawrence and Gomez. Moreover, these decisions of the House have a marked beneficial consequence. While in some contexts of the law of theft a judge cannot avoid explaining civil law concepts to a jury (e.g. in respect of section 2(1)(a)), the decisions of the House of Lords eliminate the need for such explanations in respect of appropriation. That is a great advantage in an overly complex corner of the law.
My Lords, if it had been demonstrated that in practice Lawrence and Gomez were calculated to produce injustice that would have been a compelling reason to revisit the merits of the holdings in those decisions. That is however, not the case. In practice the mental requirements of theft are an adequate protection against injustice. In these circumstances I would not be willing to depart from the clear decisions of the House in Lawrence and Gomez. This brings me back to counsels' principal submission, namely that a person does not appropriate property unless the other (the owner) retains, beyond the instant of the alleged theft, some proprietary interest or the right to resume or recover some proprietary interest. This submission is directly contrary to the holdings in Lawrence and Gomez. It must be rejected. The alternative submission is that the word "appropriates" should be interpreted as if the word "unlawfully" preceded it so that only an act which is unlawful under the general law can be an appropriation. This submission is an invitation to interpolate a word in the carefully crafted language of the Act of 1968. It runs counter to the decisions in Lawrence and Gomez and must also be rejected. It follows that the certified question must be answered in the affirmative.
In his judgment my noble and learned friend Lord Hutton concluded that the trial judge's summing-up on dishonesty was materially defective in particular respects which he lists and that the appeal should be allowed on this ground. In reluctant disagreement with Lord Hutton I take a different view. The House is clearly not confined to the certified question. I agree that in the interests of justice one must look at the matter in the round. It is, however, relevant to bear in mind the context in which the points arise. First, the trial judge was not invited to give such special directions. Secondly, these points were not contained in the written grounds of appeal before the Court of Appeal. Thirdly the points of criticism were not contained in the Statement of Facts and Issues or in the printed cases. Fourthly, the House has not seen transcripts of evidence. The relevance of this factor is that the House is inadequately informed as to the way in which the defence case was deployed before the judge and jury. And a summing-up must always be tailored to the particular circumstances of each case.
My Lords, for my part the position would have been different if I had any lurking doubt about the guilt of the appellant on the charges for which she was convicted. In the light of a fair and balanced summing up and a very strong prosecution case, the jury accepted the prosecution case and rejected the appellant's account as untruthful. They found that she had acted dishonestly by systematically raiding the savings in a building society account of a vulnerable person who trusted her. Even if one assumes that the judge ought to have directed more fully on dishonesty I am satisfied that the convictions are entirely safe. In these circumstances it is not necessary and indeed undesirable for the House to pronounce upon what directions should be given on dishonesty in cases akin to the present.
My Lords, I would dismiss the appeal to the House.
Section 1(1) of the Theft Act 1968 provides:
Section 2(1) provides:
Section 3(1) provides:
In Reg. v. Lawrence  1 Q.B. 373, 376G Megaw L.J. stated:
The facts of the present case have been set out in the speech of my noble and learned friend Lord Steyn and on those facts there were two issues for the jury to consider: (1) had the appellant appropriated the money and, if so, (2) had she appropriated the money dishonestly? In relation to appropriation the judge told the jury:
The certified question relates only to this issue, and for the reasons given by my noble and learned friend Lord Steyn I agree that the answer to this question should be "Yes", but I consider that two issues then arise as to the element of dishonesty. The first issue is whether this element should be considered by the House. If so, the second issue is whether the judge's summing up as to dishonesty constituted a misdirection.
What the judge said was as follows:
In a criminal case this House is not confined to the certified question and can consider other points if it is necessary to do so in the interests of justice: see Attorney-General for Northern Ireland v. Gallagher  A.C. 349. Therefore the question arises whether it is appropriate in this case for the House to consider the element of dishonesty. In relation to this point I would observe that a submission on dishonesty was advanced to the Court of Appeal on behalf of the appellant as an issue separate and distinct from the issue of appropriation. This appears from the following passage of the judgment of the Court of Appeal delivered by Rose L.J. at  1 Cr.App.R. 1, 7D:
And at p. 9G the Court of Appeal stated:
It is also apparent from the judgments of the Court of Appeal in Reg. v. Mazo  2 Cr.App.R. 518 and Reg. v. Kendrick and Hopkins  2 Cr.App.R. 524 that difficult issues can arise both as to appropriation and dishonesty where the defendant raises the defence that money or property was received as a gift, and in the present case the trial judge observed that dishonesty was a central issue in the case. Therefore I think it is appropriate that this House should consider the judge's directions on dishonesty.
Before doing so it is appropriate to refer to the Statement of Facts before the House where it is stated:
In the trial judge's lengthy summing-up there is no direction to the jury in relation to influence or coercion being a ground upon which any gifts by Mr. Dolphin to the appellant would be void or voidable. The judge referred to a different point when he said at p. 6 of the summing up:
I therefore turn to consider dishonesty where the defendant contends, as in this case, that she received the money or property as a gift. My Lords, it appears contrary to common sense that a person who receives money or property as a gift could be said to act dishonestly, no matter how much ordinary and decent people would think it morally reprehensible for that person to accept the gift. Section 2(1)(b) of the Act recognises this common sense view by providing:
It follows, a fortiori, that a person's appropriation of property belonging to another should not be regarded as dishonest if the other person actually gives the property to him. Thus in Reg. v. Lawrence  A.C. 626, 632C Viscount Dilhorne said:
Therefore I consider that in Reg. v. Mazo  2 Cr. App. R. 518 after referring to a sentence in the above passage of the speech of Viscount Dilhorne, Pill L.J. was right to say at p. 521C: "It is implicit in that statement that if in all the circumstances there is held to be a valid gift there can be no theft." The reason why there is no theft is because there is no dishonesty.
But the simple proposition that a person who receives property as a gift is not to be regarded as dishonest becomes more difficult to apply where the prosecution alleges that the gift was void or voidable by reason of circumstances known to the defendant. This situation was discussed by Megaw L.J. in Lawrence  1 Q.B. 373, 377C:
There was no difficulty in applying that concept in the case of Lawrence itself because, as Viscount Dilhorne observed at p. 632C and E, it was not contended that the defendant had not acted dishonestly, and there was ample evidence of dishonesty.
In Reg. v. Morris  A.C. 320, 334C Lord Roskill stated:
I respectfully agree, but I think that in a case where the prosecution contends that the gift was invalid because of the mental incapacity of the donor it is necessary for the jury to consider that matter. I further consider that the judge must make it clear to the jury that they cannot convict unless they are satisfied (1) that the donor did not have the mental capacity to make a gift and (2) that the donee knew of this incapacity.
In Reg. v. Mazo  2 Cr.App. R. 518, where the accused had received large sums of money from an elderly lady and claimed that they were gifts, I consider that the Court of Appeal was right to quash the conviction because the trial judge had not directed the jury adequately on the issue of the lady's capacity to make a valid gift, Pill L.J. stating at p. 522E- 523A:
In contrast, in Reg. v. Kendrick and Hopkins  2 Cr.App.R. 524 there was clear evidence that the owner of the monies and investments, who was aged 99, was mentally incapable of managing her own affairs and was thus incapable of making a gift. Therefore I consider that in that case the Court of Appeal was right to uphold the conviction for conspiracy to steal by the managers of the residential home where the owner lived and who had acquired large sums of money which had belonged to her and which they claimed were gifts. Ebsworth J., delivering the judgment of the Court of Appeal, rejected the submission of defence counsel that the judge had failed to indicate sufficiently to the jury the level of mental incapacity which would be necessary to cause the donor to be incapable of making a gift and stated at p. 538A:
Therefore there was an appropriation in that case and there was dishonesty because the defendants knew that the elderly lady was mentally incapable of making a gift.
My Lords, in the present state of the law relating to theft when the defendant claims that he or she received the money or property as a gift, a Crown Court judge faces a difficult task in summing-up to a jury. In this case the judge gave a fair and careful summary of the evidence. In the passage which I have set out he rightly told the jury that the mere fact that they disapproved of what the defendant did, or thought that it was morally reprehensible, did not necessarily mean that it was dishonest. It is also clear that the third and fourth paragraphs in the passage of the summing-up which I have set out above were based on the guidance given by the Court of Appeal in Reg. v. Ghosh  1 Q.B. 1053.
But in my opinion in a case where the defendant contends that he or she received a gift, a direction based only on Ghosh is inadequate because it fails to make clear to the jury that if there was a valid gift there cannot be dishonesty, and in the present case there is the danger that, if the gift was not void for want of mental capacity, the jury might nevertheless convict on the basis that ordinary and decent people would think it dishonest for a younger woman to accept very large sums of money which constituted his entire savings from a naïve man of low intelligence, and that the woman would have realised this.
Immediately after giving the part of his direction based on Ghosh the judge said at p. 6:
But this part of the charge was defective because it linked the issue of mental incapacity to what ordinary and decent people would regard as dishonest. Moreover in summarising the evidence of the consultant psychiatrist who had examined Mr. Dolphin on behalf of the Crown and who was called as a prosecution witness the judge said at p. 15:
And towards the end of his summing-up the judge said at p. 49: