England and Wales Court of Appeal (Criminal Division) Decisions

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URL: http://www.bailii.org/ew/cases/EWCA/Crim/1972/2.html
Cite as: 136 JP 777, [1972] 3 All ER 280, 56 Cr App Rep 734, [1972] EWCA Crim 2, [1972] 1 WLR 1341, [1972] WLR 1341

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JISCBAILII_CASE_CRIME

		BAILII Citation Number: [1972] EWCA Crim 2
		Case No.: 3734/C/71

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice,

27th June 1972

B e f o r e :

LORD JUSTICE CAIRNS
LORD JUSTICE STEPHENSON
and
MR. JUSTICE WILLIS
____________________

	R E G I N A
	-v-
	Donald GILKS

____________________

MR. WEBB (for MR. B. GALPIN) appeared on behalf of the Appellant.
MR. R. PURNELL (for MISS S. NORWOOD) appeared on behalf of the Crown.
____________________

HTML VERSION OF JUDGMENT
____________________

LORD JUSTICE CAIRNS: The judgment I am about to read is the judgment of the Court. Mr. Justice Willis, who is unable to be present this morning, has read it and expressed his concurrence with it.

On the 12th July, 1971 at South West London Quarter Sessions (Deputy Chairman Mr. Bruce Campbell, Q.C.), the Appellant was convicted of theft and fined £250. He applied for leave to appeal against conviction and the full Court granted leave to appeal. Such leave was not strictly necessary because all the grounds of appeal relied on are alleged misdirections on the law. The facts were as follows:

On 27th March, 1971, the Appellant went into Ladbrokes' Betting Shop at North Cheam and placed some bets upon certain horses: one of his bets was on a horse called "Fighting Scot". "Fighting Scot" did not get anywhere in the race which was in fact won by a horse called "Fighting Taffy". Because of a mistake on the part of the relief manager in the betting shop, the Appellant was paid out as if he had backed the successful horse with the result that he was overpaid to the extent of £106. 63p. He was paid £117.25p. when the amount he had won (on other races) was only £10.62p. At the very moment when he was being paid the Appellant knew that a mistake had been made and that he was not entitled to the money, but he kept it. He refused to consider repaying it, his attitude being that it was Ladbrokes' hard lines.

The questions of law arise under the following sections of The Theft Act, 1968:

Section 1(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. Section 2(1) 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 ..... Section 5(4) Where a person gets property by another's mistake and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds.

The Deputy Chairman gave rulings in law to the following effect: he ruled that at the moment when the money passed it was money "belonging to another" and chat that ingredient in the definition of theft in Section 1(1) of the Act was therefore present. Accordingly Section 5(4) had no application to the case. If he was wrong about that then, he said, "obligation" in the sub-section included an obligation which was not a legal obligation. He told the jury what it was open to them to convict the Appellant of theft in respect of the mistaken overpayment. And he directed then that the test of dishonesty was whether the defendant believed that "when dealing with your bookmaker if he makes a mistake you can take the money and keep it and there is nothing dishonest about it."

In the grounds of appeal it is contended that all these directions were wrong.

The main foundation of one branch of the Appellant's case at the trial and in this Court was the decision of the Court of Appeal in Morgan v. Ashcroft, 1938 1 Kings Bench, 49. In that case a bookmaker, by mistake, overpaid a client £24. It was held that the bookmaker was not entitled to recover the money by action because that would involve taking accounts of gaming transactions which were void under The Gaming Act 1845. The argument proceeded as follows: when Ladbrokes paid the Appellant they never supposed that they were discharging a legal liability; even if he had won they need not, in law, have paid him. They simply made him a gift of the money. The Deputy Chairman was wrong in saying that at the moment of payment the money "belonged to another". At that very moment its ownership was transferred and therefore the Appellant could not be guilty of theft unless the extension given by Section 5(4) to the meaning of the words "belonging to another" could be brought into play. But Section 5(4) had no application because under the rule in Morgan v. Ashcroft the Appellant had no obligation to repay.

The Deputy Chairman did not accept this line of argument. He held that it was unnecessary for the prosecution to rely on Section 5(4) because the property in the £106. 63p. never passed to the Appellant. In the view of this Court that ruling was right. The Sub-section introduced a new principle into the law of theft but long before it was enacted it was hold in R. v. Middleton, 1873 L.R. 2 CCR 38, that where a person was paid by mistake (in that case by a Post Office clerk) a sum in excess of that properly payable, the person who accepted the overpayment with knowledge of the excess was guilty of theft. Mr. Galpin seeks to distinguish the present case from that one on the basis that in Middleton the depositor was entitled to withdraw 10/- from his Post Office Savings Bank Account and the clerk made a mistake in thinking he was entitled to withdraw more than £8, whereas in the present case there was no mistake about the Appellant's rights - whether his horse won or lost he had no legal right to payments. In our view this argument is fallacious. A bookmaker who pays out money in the belief that a certain horse has won, and who certainly would not have made the payment but for that belief, is paying by mistake just as much as the Post Office clerk in Middleton.

The gap in the law which Section 5(4) was designed to fill was, as the Deputy Chairman rightly held, that which is illustrated by the case of Moynes v. Cooper, 1956 1 King's Bench, 439. There a workman received a paypacket containing £7 more than was due to him but did not become aware of the overpayment till he opened the envelope some time later. He then kept the £7. This was held not to be theft because there was no animus furandi at the moment of taking, and R. v. Middleton was distinguished on that ground. It was observed at p. 445 that the law as laid down in R v. Middleton was reproduced and enacted in Section 1(2)(i) of the Larceny Act 1916. It would be strange indeed if Sub-section 5(4) of the 1968 Act, which was designed to bring within the net of theft a type of dishonest behaviour which escaped before, were to be held to have created a loophole for another type of dishonest behaviour which was always within the net.

An alternative ground on which the Deputy Chairman held that the money should be regarded as belonging to Ladbrokes was that "obligation" in Section 5(4) meant an obligation whether a legal one or not. In the opinion of this Court that was an incorrect ruling. In a criminal statute, where a person's criminal liability is made dependent or his having an obligation, it would be quite wrong to construe that word so as to cover a moral or social obligation as distinct from a legal one. As, however, we consider that the Deputy Chairman was right in ruling that the prosecution did not need to rely on Section 5(4) his ruling on this alternative point does not affect the result.

The other main branch of the Appellant's case is the contention that the Deputy Chairman misdirected the jury on the meaning of "dishonestly" in Section 1(1) of the Theft Act. The relevant part of the Appellant's evidence is set out in the summing up in a passage of which no complaint is made:

"Now, what this man says is that he did not act dishonestly. He says in his view Bookmakers and punters are a race apart and that when you are dealing with your bookmaker different rules apply. He agreed it would be dishonest if his grocer gave him too much change and he knew it and kept the change; he agreed it would be dishonest but he says bookmakers are different and if your book-maker makes a mistake and pays you too much there is nothing dishonest about keeping it."

The Deputy Chairman, having referred to this evidence, and to evidence that the Defendant had not hurried away from the betting shop after receiving this large sum, said, "Well, it is a matter for you to consider, Members of the Jury, but try and place yourselves in that man's position at that time and answer the question whether in your view he thought he was acting honestly or dishonestly." In our view that was in the circumstances of this case a proper and sufficient direction on the matter of dishonesty. On the face of it the Appellant's conduct was dishonest: the only possible basis on which the jury could find that the prosecution had not established dishonesty would be if they thought it possible that the Appellant did have the belief which he claimed to have. (There is no complaint about the direction as to onus: the Deputy Chairman expressly said: "The prosecution have to satisfy you that he did appropriate the money dishonestly')

Mr. Galpin thought that the jury should be specifically reminded of the terms of Section 2(1)(a) of the Act and suggested this to the Deputy Chairman. The Deputy Chairman then summarised the sub-section, gave a somewhat irrelevant illustration of a case where it might apply, and then added "Nor would somebody be guilty of theft if he believed, even if he was wrong, but nevertheless believed he had some right in law to take the property and that, you see, is the reason why Mr. Galpin puts the case on behalf of the Defendant that this Defendant believed that when dealing with your bookmaker if he makes a mistake yon can take the money and keep it and there is nothing dishonest about it." The complaint is centred on the word "and". It is contended that the jury may have understood this direction to mean that the Appellant would be acting dishonestly unless (a) he believed he had the right to take the money and keep it and (b) he believed there was nothing dishonest about that conduct. It is said that the jury may have thought that the Appellant's state of mind was "I believe that in law I am entitled to take from my bookmaker anything he is foolish enough to pay me, though of course I know that it would be dishonest to do so", and he pointed out that under the Sub-section this would entitle him to be acquitted whereas the direction might be taken to mean that he would be guilty.

In our opinion this is too refined an argument. We think it is clear that in the context the word "and" meant "and therefore" or "and so" and the jury would understand it in that way. A few minutes earlier the Deputy Chairman had accurately stated the effect of the sub-section in words that could not be clearer. The Appellant in his evidence had drawn no distinction between what he believed he was in law entitled to do and what he believed it was honest to do. His own words were "there is nothing dishonest about keeping it", not "I think you are entitled in law to keep it". If the two expressions are taken to have different meanings the Appellant had not made out any case under Section 2(1)(a); if they are taken to have the same meaning then no complaint can be made of the way in which the Deputy Chairman dealt with the matter.

For these reasons this court is of the opinion that all the grounds of appeal fail and that the appeal must be dismissed.

MR. WEBB: I wonder if I might ask you to certify that there is a point of law of general public importance?

LORD JUSTICE CAIRNS: What is the point of general public importance that you wish us to certify?

MR. WEBB: That the case deals with an area where dishonesty and illegality are being distinguished, and this sort of mistake is happening a great deal among betting .....

LORD JUSTICE CAIRNS: That is not a point of law. Tell us what the point of law is.

MR. WEBB: I am unable to do so .... I am bound to say this is a point of fact and not ......

LORD JUSTICE CAIRNS: I think you are right, yes. The Court is unable to certify that there is a point of law of general public importance.