England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		18th July 2007

1. LORD JUSTICE AULD: Paul Clarke appeals by way of case stated against decisions of the Barnsley Magistrates on 31st January 2007, convicting him of an offence of theft and an offence of obtaining by deception, the two charged offences arising out of the same facts and put to them as alternatives.
2. The facts were that Mr Clarke, a car dealer, purported to sell a car, which he may or may not have owned or possessed, to Mr Mark Boydell for £700. Mr Boydell paid him £700, but Mr Clarke never delivered the car. The Justices, after hearing the evidence, including that of Mr Clarke, notwithstanding that the prosecution had charged and presented the two charges as alternatives, convicted him of both. However, they only sentenced him for the offence of theft, recording no separate penalty for the offence of obtaining by deception.
3. The question posed for the court by the Justices is:

"Where offences of theft and criminal deception have been preferred as alternative charges, is a Magistrates' Court correct in law to convict of both offences?"

The case stated contains the following indications of what appears to have been the Justices' reasoning:

"(2)After hearing the evidence, the Magistrates found that the applicant had or purported to have (the Magistrates were unable to decide which and in any case, found it irrelevant to the case) a motor vehicle to sell, being known to Mark Boydell (the complainant) as a reputable car dealer . . .

(4) The Justices found that the defendant tricked the complainant into believing he had a car to sell and that the applicant dishonestly appropriated the £700 with the intention to permanently deprive the claimant of it by using a deception that was sustained over a number of weeks that he had a car to sell when in fact, he did not.

(5) The Justices found the applicant guilty of both charges upon the law and on the facts of the case as they found them. Whilst the offence of deception has a lesser maximum penalty than theft (5 and 7 years respectively), a conviction on the theft alone would not have recorded the deception used in stealing the money . . .

(7) The Justices were advised that they should not dismiss one charge solely because it was laid in the alternative on the basis that a successful appeal could be lodged against the conviction without the higher court having the option of considering the dismissed alternative charge. Further, there was no equivalent procedure to that used in the Crown Court that a charge should 'lie on file'. In the circumstances, the Justices were advised that it was proper for a conviction to be recorded on both charges; however it would be unfair to sentence on both in that both charges arose from the same incident."

It is recorded in paragraph 8 that the appellant was sentenced on the theft with no separate penalty recorded on the deception.

4. In certain circumstances, of which this may be one, the same facts may constitute either offence; deception, causing the victim to act to his detriment being a specific form of dishonesty not necessary for the proof of theft. However, as I have indicated here, the two charges were made and specifically presented by the prosecution to the court as alternatives.
5. On that account alone a conviction of one or other may be vulnerable, though on what procedural basis is not entirely clear. Magistrates, unlike the Crown Court, seemingly have no power to leave a charge on the file not to be proceeded with without the leave of the court. It may be possible for them to deal with it to similar effect by way of stay for abuse of process, a jurisdiction that Magistrates share with the Crown Court. But here, given the Magistrates' account of their reasoning in convicting Mr Clarke of both charges, there is, in my view, a simpler and more satisfactory way.
6. As I have said, to convict Mr Clarke of criminal deception they had to be satisfied that his conduct had ingredients not necessary for, and in addition to those required for a conviction of theft, namely, as charged here, deception that he had a car to sell and thereby causing the complainant to act to his detriment.
7. On those aspects of the prosecution case the Magistrates' reasons were at best ambivalent and confused, and at worst contradictory. What was the alleged deception? It was that Mr Clarke had falsely represented that he had a car to sell, as described by him to the complainant, and that he had the means of delivering such a car to him in fulfilment of that agreement. But as paragraph 2 of the case stated suggests, the Magistrates were unable to decide whether he had such a car to sell. Not just that, but they found it "irrelevant" to the case. There was, of course, another deception which would have been relevant to the charge of theft, going beyond whether he had such a car, namely whether at the time of the transaction he had a present intention to deliver if or return the money paid to him. It seems to have been the former with which the Magistrates were concerned, in the way they expressed themselves in paragraph 2 of their case stated, possibly conflating the two elements of deception, one necessary for the deception charge and the other an inherent part of the alleged dishonesty and theft.
8. If, as appears from the case stated, they were uncertain as to the appellant's possession of the car at the material time, they had no basis on which they could properly convict him on the criminal deception charge, alternative or not. But between paragraph 2 and paragraph 4 of the case stated their state of mind, if only in the writing of it, appears to have changed. In paragraph 4 they record a finding that he "tricked" Mr Boydell into believing that he had a car to sell when he had not. They then, as I have indicated, in paragraph 5 record, consistently with paragraph 4 but inconsistently with paragraph 2, that they found him guilty, upon the law and the facts as they found them, of both charges. Why? Their answer in paragraph 5, is because "a conviction on the theft alone would not have recorded the deception used in stealing the money." Notwithstanding those two findings of guilt they then took the view, as paragraph 7 indicates, that "it would be unfair to sentence in that both charges arose from the same incident."
9. The whole process of the Justices' recorded reasoning simply does not hang together so far as the charge of deception is concerned. At best, it seems to have been the result of a concern expressed in paragraph 7 that, if there was a successful appeal against conviction on one charge there should be left as available choices for the appellate court an option of upholding the other. That won't do. The Magistrates' expressed doubt in paragraph 2 of the statement of case was as to whether the appellant had, at the material time, a car to sell. Their view that it was, in any event irrelevant to the deception charge, is fatal to their conviction of him on that charge. A plain error of law.
10. Accordingly, my answer to the Magistrates' question would be "no". I would therefore allow the appeal to quash the conviction on the deception charge.
11. The issue then arises, as Mr Barradell has submitted this morning on behalf of Mr Clarke, whether the flaws in the Magistrates' reasoning on the deception charge taint their conviction of him of theft. On that issue, whether or not Mr Clarke had a car to sell was irrelevant. What mattered was not whether he had a car but whether, when the transaction took place he had an honest intention to deliver one in consideration of the purchase price tendered. The Magistrates, on a proper reading of their statement of case, were at least of the view that he had no such intention - a view that they confirmed by sentencing him for theft and ordering no separate penalty in relation to the deception.
12. I would, therefore, not disturb the conviction for theft where, on the facts as they found them, there was, as my Lord has said, clear evidence of dishonest appropriation of another's property with intention permanently to deprive him of it. Accordingly, I would allow the appeal, but only in relation to the deception charge.
13. MR JUSTICE COLLINS: I agree with my Lord that the result of this appeal should be as he indicated. It seems to me that the case is somewhat clumsily stated, and my Lord has already pointed out the problems that arise in marrying what the Justices have said in paragraphs 2 and 4 of the case. It seems to me that what the Justices are clearly indicating is that they were satisfied that the appellant was dishonest when he took the money, whether or not there was a car in existence which he was intending to sell. He had no intention of providing to the victim a car which the victim believed he was buying.
14. When one looks at the deception alleged in the charge of obtaining by deception, one sees it is stated as "by falsely representing that you were the lawful owner and seller of a blue Vauxhall Corsa motorcar and taking payment for the sale of this vehicle." The prosecution preferred the alternative charge of theft, as it seems to me, plainly on the basis that the Justices would be entitled to convict of theft if they were not satisfied that the car did not exist; that is to say that the deception charge was based upon the existence of a car, the theft charge was based upon doubt as to whether the car did not exist had been proved but satisfaction that the money had been obtained dishonestly because the appellant never intended that the car should be supplied.
15. In those circumstances, since the Justices clearly were not sure whether or not the car existed, they ought not to have convicted of the deception charge and for those reasons, which I think really reflect those given by my Lord, I would reach the same conclusion.
16. LORD JUSTICE AULD: The appeal is therefore allowed to the extent indicated by the court.
17. MR BARRADELL: I am very obliged, my Lords. Can I mention the situation so far as representation is concerned. I have been instructed that we have got a representation order, but your clerk may have the necessary documentation.
18. MR JUSTICE COLLINS: You do have one. I granted you one on 5th July.
19. MR BARRADELL: I am very grateful, my Lord.
20. LORD JUSTICE AULD: Thank you for your assistance, Mr Barradell.