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
		14 July 2010

1. MR JUSTICE WYN WILLIAMS: In these proceedings the claimant seeks an order to quash the decision made by Basildon Magistrates' Court to commit the claimant to the Crown Court for trial on two charges of theft. The charges preferred against the claimant were, first, that he had stolen property belonging to the British Heart Foundation and, second, that he had stolen property belonging to Oxfam.
2. The evidence before the magistrates at the committal hearing consisted of a number of witness statements. Specifically, there were witness statements from a number of police officers and a civilian. There were however no witness statements from any person connected with or employed by either the British Heart Foundation or Oxfam.
3. In summary, the evidence put before the magistrates by the prosecution was to the following effect. At approximately 2.15 am on Wednesday 17 June 2009 the claimant was observed to be acting suspiciously in Brentwood High Street. A police officer who was monitoring the CCTV cameras in the street saw the claimant searching through items which had been left outside but very close to the charity shop operated by the British Heart Foundation. The officer decided to keep watch on the claimant. He saw him take a suitcase from the vicinity of the shop to a car which was parked nearby and then drive the car away. The officer who was monitoring the CCTV camera passed on what he had seen to other officers.
4. In due course police officers in a police vehicle stopped the car in which the claimant was travelling. A perfunctory search revealed that there were bags of items filling up the rear seat of the car. When asked what he had been doing, the claimant told the police officers that he had been collecting things to sell at a boot fair. He volunteered the fact that he had removed items from outside the British Heart Foundation shop and that he had also taken items from outside a second shop. At that stage the claimant offered to show the officers the location of that second shop. The officers soon discovered that the claimant had been taking items from the rear of the shop run by Oxfam. A total of six bags containing miscellaneous items were recovered from the claimant's car. The suitcase to which I referred earlier was also recovered and the suitcase contained some items of clothing.
5. The claimant was arrested. During the course of his interview under caution he admitted taking the items which had been recovered. In relation to the items taken from the vicinity of the Oxfam shop, the claimant said he had taken the items from bins which were positioned at the rear of the shop. Following the interview under caution, the claimant was charged with the offences to which I have referred.
6. At the committal proceedings the claimant's legal representatives submitted to the magistrates that there was no evidence upon which it could properly be concluded that the property taken by the claimant belonged to the British Heart Foundation (as in the first charge) or Oxfam (as in the second charge). Accordingly, it was submitted that an essential ingredient of the offence charged against the claimant could not be proved.
7. A person commits theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. There is no dispute in this case that the claimant appropriated property and that he intended to sell it. If the property belonged to another, the claimant had the intention of permanently depriving the other of his property. It is also accepted that it would be open to a jury to conclude that the claimant had acted dishonesty. Accordingly, the sole issue in dispute is whether or not there was evidence to justify a conclusion that the property belonged to another.
8. Section 5 of the Theft Act 1968 is in the following terms so far as material:

"(1) Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest ..... "

9. In this court Mr Field, who has acted for the claimant, acknowledges that it is unnecessary for there to be evidence to prove that the property belonged respectively to the British Heart Foundation or Oxfam. It was sufficient for a proper committal to take place that there was evidence to justify the conclusion that the property belonged to someone other than the claimant. Can it be said that there was evidence upon which it was open to the justices to conclude that someone other than the claimant either possessed the clothing deposited outside the shops or controlled it or had any proprietary right or interest in it at the time when the claimant appropriated it?
10. I deal first with what I shall call the British Heart Foundation charge. In my judgment, the following inferences were open to the court. First, that persons unknown had deposited the items outside the shop with the intention of giving the items to British Heart Foundation. Second, it was a permissible inference that British Heart Foundation would have been willing either to keep the items with a view to re-sale in its shop or to dispose of them. In either event of course, at some stage the items would have become within the possession or control of the British Heart Foundation and it would have a proprietary right in the items.
11. It does not seem to me however that it was open to the court to infer that at the moment in time when the appropriation took place British Heart Foundation had acquired a proprietary interest or had taken possession or control of the items.
12. In my judgment it cannot be said that the British Heart Foundation acquired possession of the items or assumed control of them or even acquired a proprietary interest in them simply by virtue of the fact that they were left in close proximity to the shop.
13. However it is clearly the case, in my judgment, that it was open to the court to infer that the items had not been abandoned. The obvious inference on the bare facts before the magistrates was that persons unknown had intended the goods to be a gift to the British Heart Foundation. Those persons had an intention to give; they had also attempted to effect delivery. Delivery would be complete however only when the British Heart Foundation took possession of the items. Until that time, although the unknown would-be donor had divested himself of possession of the items, he had not given up his ownership of the items. I accept that it would have been more appropriate to lay a charge of stealing property belonging to persons unknown, though as I have said it is not material to the resolution of this case that the claimant was charged with appropriating items belonging to the British Heart Foundation.
14. In my judgment the above analysis shows that it was open to the court to conclude that there was evidence from which a court could properly determine that the property belonged to another at the time of appropriation by the claimant. That being the case, in my judgment, the claimant was properly committed on that charge for trial. It will obviously be a matter for the prosecution to consider how best to frame the indictment when the claimant is actually indicted in the Crown Court.
15. I turn to the charge alleging theft from Oxfam since it is somewhat different on the facts. The claimant admits that the items taken from Oxfam were items which had been placed in bins in close proximity to the rear of the shop. In my judgment, it would open to a court to infer either that would-be donors had placed the items in the bin for receipt by Oxfam or that employees of Oxfam had placed the items in the bin for onward disposal by the local authority. This analysis assumes of course that the bins belonged to or were controlled by Oxfam, which is not presently disputed.
16. Upon that assumption it would be open to a court to infer that Oxfam had taken delivery of the items once placed within the bin. Alternatively, it could infer that Oxfam had taken possession of the items and had then placed them in the bin for disposal. Either way, Oxfam were in possession of the items at the time of the appropriation by the claimant.
17. I am also of the view that it would be open to the court to conclude that the bins were controlled by Oxfam even if this is disputed. The bins were in close proximity to the rear of the premises. That of itself, in my judgment, raises a permissible inference, in the absence of any other evidence, that the bins were under the control of Oxfam. In any event, if the prosecutor so chooses he or she can allege in the indictment in the Crown Court that the property belongs to a person unknown. That cannot be objectionable for the reasons I have given earlier in this judgment.
18. Finally I should refer to three decisions upon which Mr Field relied in support of the application for judicial review. They are the cases of Williams and Others v Phillips (1957) 41 Crim.App.R 5, R v Rostron and Collinson [2003] EWCA Crim 2206 and the old case of William White 7 CR App R 266 CCA. None of those cases, in my judgment, touch upon the issue in this case. The issue in this case, as I perceive it, is whether or not the only inference open to the justices at the time of committal was that the unknown would-be donors had abandoned their property. For reasons which I have sought to explain, I do not regard that as the correct analysis. Once that is accepted, in my judgment, the three cases to which I have referred do not assist Mr Field's argument. Indeed there is a powerful case for saying that Williams and Others v Phillips supports the analysis which I have sought to provide in this judgment.
19. For the reasons which I have explained, I would dismiss this application for judicial review.
20. LORD JUSTICE MOSES: I agree.
21. MR POUNDER: The applicant is legally aided. I make no application.
22. MR FIELD: I ask for detailed assessment of the claimant's costs.
23. LORD JUSTICE MOSES: Yes.