ON APPEAL FROM CROWN COURT AT WOOD GREEN
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE KING
MRS JUSTICE CHEEMA-GRUBB DBE
| PAMELA DARROUX
|- and -
Christiaan Moll for the Respondent
Hearing date: 13 April 2018
Crown Copyright ©
Lord Justice Davis:
The Indictment and Course of Proceedings
"Statement of Offence
THEFT, contrary to s. 1 (1) of the Theft Act 1968
Particulars of Offence
PAMELA DARROUX between 1st day of January 2011 and 30th day January 2011 stole monies belonging to Sunridge Court Housing Association."
The other counts were similarly drafted.
"As I say, you probably don't need me to tell you this, but the issue in this case was not whether the property was appropriated, because Mrs Darroux did get the money that's been complained about in each of those charges, or at least most of it… and the money, the prosecution say, belonged to Sunridge Court and they say that… [she was] keeping it permanently…"
The Statutory Provisions
"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."
"(1) 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.
(2) Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor's title, amount to theft of the property."
Section 2 deals with dishonesty. Section 4 includes a wide definition of "property": this explicitly extends to all property, real or personal, including things in action. Section 5 explains the circumstances where property is regarded as "belonging to another".
"S. 1 Fraud
(1) A person is guilty of fraud if he is in breach of any of the sections listed in subsection (2) (which provide for different ways of committing the offence).
(2) The sections are—
(a) section 2 (fraud by false representation),
(b) section 3 (fraud by failing to disclose information), and
(c) section 4 (fraud by abuse of position).
S. 2 Fraud by false representation
(1) A person is in breach of this section if he—
(a) dishonestly makes a false representation, and
(b) intends, by making the representation—
(i) to make a gain for himself or another, or
(ii) to cause loss to another or to expose another to a risk of loss.
(2) A representation is false if—
(a) it is untrue or misleading, and
(b) the person making it knows that it is, or might be, untrue or misleading.
(3) "Representation" means any representation as to fact or law, including a representation as to the state of mind of—
(a) the person making the representation, or
(b) any other person.
(4) A representation may be express or implied.
(5) For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention)."
The arguments in outline
"We wish to make it clear that nothing we said was intended to cast doubt on the principle that the theft of a chose in action may be committed when a chose in action belonging to another is destroyed by the defendant's act of appropriation as defined by section 3 (1) of the Act."
"We are not satisfied that a misrepresentation which persuades the account holder to direct payment out of his account is an assumption of the rights of the account holder as owner such as to amount to an appropriation of his rights within s. 3 (1) of the 1968 Act."
"In other words, we consider that where a victim causes a payment to be made in reliance on deceptive conduct on the part of the defendant there is no "appropriation" by the defendant."
"We are fortified in coming to that view by three further factors. First, no case has been cited to us where it has been held that an "appropriation" occurs where the relevant act is committed by the victim albeit as a result of deception. Second, if Mr. Barry was correct, there would be little need for many deception offences as many acts of deceptive conduct would be covered by theft but it is noteworthy that the Theft Act 1968 (as amended) contains deception offences to deal with the case where a defendant by deception induces a person to take a step which leads to the wrongdoing of gaining property by deception (section 15) or obtaining a money transfer by deception (section 15A) or obtaining a pecuniary advantage (section 16). Third, we have already referred to the explanation of the word "appropriation" in section 3(1) of the Theft Act 1968 and it is a word which connotes a physical act rather than a more remote action triggering the payment which gives rise to the charge. The Oxford English Dictionary defines "appropriation" as "to take possession for one's own, to take to oneself". It is not easy to see why an act of deceiving an owner to do something would fall within the meaning of "appropriation"."
(1) While the above cited statement in Naviede, as restated in Briggs, may in general terms frequently represent the correct position, as will be gathered we do not think that such statement should be taken as an inflexible statement of principle of invariable application. As we see it, there may be cases where a deceptive representation inducing an account holder to make payment out of his bank account could constitute an appropriation (within the meaning of the 1968 Act). It would depend on the circumstances.
(2) It has been suggested, most notably by Professor Sir John Smith, that cases where a cheque is dishonestly obtained and presented are different from cases where payment out of an account is procured in circumstances where the bank uses electronic or automated means. In common with the court in Hilton, we have some difficulty with that. It is at all events hard to see how or why (as is suggested) the latter scenario may give rise to a break in the chain of causation but the former not. That said, as will also be gathered, we do not regard the causative impact of a deception as of itself determinative of whether there has been an appropriation by a defendant with regard to a bank account in any particular case.
Substituting a verdict for an alternative offence.