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R v Hinks
Criminal Whether conviction unsafe Whether judge failed to draw sufficient attention to evidence of police officers Whether direction given was appropriate and accurate as to dishonesty (Transcript: Smith Bernal) COURT OF APPEAL (CRIMINAL DIVISION) ROSE LJ, DOUGLAS BROWN, DYSON JJ 26 JUNE 1998 26 JUNE 1998

M Morse for the Crown A Lowe for the Appellant ROSE LJ (reading the judgment of the court): On 11 November 1997, at Wolverhampton Crown Court, following a trial before His Honour Judge Warner, this appellant was convicted by the jury on five counts of theft, that is counts 1 - 4 and 6 in the indictment. She had previously pleaded guilty to count 7, which alleged false accounting. On 12 December she was sentenced to 18 months' imprisonment concurrently, on each count of theft, and 6 months concurrently in relation to false accounting. Count 5 was a further count of theft in relation to which, on the judge's direction, a verdict of not guilty was entered. The appellant was also ordered to pay compensation in the sum of 19,000 to Mr Dolphin. She appeals against conviction by leave of the Single Judge, who also referred to this Court her application for leave to appeal against sentence. So far as any application in relation to sentence is concerned, as Mr Lowe's grounds make plain, and as he has confirmed before us, that matter would be pursued if the appellant were, to any extent, successful in relation to her convictions. In outline, the circumstances were these. The appellant, who is the mother of a young son, became friendly with a 53 year old man called John Dolphin, who was naive, gullible and of limited intelligence. He had been left money by his father. It was the prosecution case that in 1996, between April and November, the appellant influenced, coerced or encouraged Mr Dolphin to withdraw sums, amounting to 60,000, from his building society account and for them subsequently to be deposited in the appellant's account. It was also said, in relation to count 6, that the appellant had taken a colour television belonging to Mr Dolphin by similar means. It was in each instance the defence case that the money and the property had been handed either to the appellant or to her young son, either as loans or as valid gifts. We turn to the evidence. Mr Dolphin, by reason of the disabilities which we have already briefly summarised, did not give evidence. A consultant psychiatrist who had examined him, Dr Fuller, gave evidence. He said that Mr Dolphin was able to shop in a routine manner but found it impossible to calculate amounts of change due to him; that his
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estimates of the cost of every day items appeared to be wildly out. He could read but not particularly well. His IQ was in the range between 70 and 80. He was able to live a normal but undemanding life, but he was naive and trusting and had no idea of the value of his assets nor any ability to calculate their value. He was, at the time, suffering from a condition of anxiety which rendered him quite unfit to give evidence. In cross-examination, Dr Fuller agreed that Mr Dolphin would be capable of making a gift and understood the concept of ownership but, although he was capable of making a decision to divest himself of money, it was unlikely that he would make such a decision alone and unaided. There was evidence read to the jury from Mr Dolphin's cousin, which indicated that he had lived with his father until his father died in 1995 having, during the last few years of his life, been confined to a wheelchair and looked after by Mr Dolphin. There was evidence read from the landlady of a public house frequented by Mr Dolphin for some 20 years, who described him as introverted and naive rather than slow, and she said that, about a month after his father died, in August 1995, he came into the public house accompanied by the appellant whom he described as his 'very good friend'. The landlady had not previously known Mr Dolphin to have a girlfriend. Her impression was that the appellant had taken over the running of Mr Dolphin's finances, a role which had previously been carried out by his late father. The landlady had seen Mr Dolphin with the appellant carrying new purchases on many occasions. There was evidence read from the branch manager of Mr Dolphin's building society. He had written to Mr Dolphin asking that he come and discuss the withdrawals that were being made from his account. He received a telephone call from a man who said he was Mr Dolphin who said that he was quite happy with the situation and had then passed the telephone to a woman who said she was his niece, Karen. The branch manager said that the woman identified herself as the person who regularly attended at the building society with Mr Dolphin, and she told the manager that Mr Dolphin needed the money which was being withdrawn to refurbish the flat. Miss Alexander, a branch accountant at Mr Dolphin's building society, described the appellant coming into the branch with Mr Dolphin from about the spring of 1996. During the summer of that year, Mr Dolphin made withdrawals of the maximum permissible sum of 300 almost every day. It was the appellant, on those occasions, who did most of the talking, and she would interrupt Mr Dolphin if he spoke. On one occasion there had been a request for a cheque for 11,000 payable to the appellant. When she was cross examined, she said she had no recollection of Mr Dolphin ever coming in this period on his own. There had, however, been occasions when Mr Dolphin had spoken to cashiers without being interrupted by the appellant. One of those cashiers gave evidence. She knew Mr Dolphin well. She referred to numerous cash withdrawals made from the account and to two occasions, in August, when she had herself made out cheques each for 1,000 payable to the appellant. She recalled that in relation to the first of those cheques it was the appellant who had requested that it be made out to her. By mid-November the balance in the account was less than 8,000. She said that she had the impression, on the occasions of these visits, that the appellant was trying to distract Mr Dolphin from the business being undertaken by discussing other matters. A community psychiatric nurse spoke of first meeting Mr Dolphin at his home in July 1996, following referral by his general practitioner. He seemed anxious and unwell. She was told by the appellant that she, the appellant, was the main carer of Mr Dolphin. She arranged to visit Mr Dolphin fortnightly but subsequently was unable to gain entry, but she agreed she had seen him on five occasions between July and November, and the appellant had been present on only the first of those visits. The decor of his flat had not changed during that period. She was cross-examined and agreed that there were concerns about Mr Dolphin's anxiety and distress following his father's death and that Mr Dolphin had certainly made no
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complaint about the appellant. She also said that if there had been an allegation of benefit fraud against the appellant, that would have made him very anxious. A chart indicating the outflow of funds was produced for the benefit of the jury. A detective constable spoke of cautioning the appellant and telling her that he was arresting her for the theft of Mr Dolphin's savings. He said that she had asked if Mr Dolphin was okay and whether money had been stolen from his flat. According to that officer, Detective Constable Ollerenshaw, she had denied having any money from Mr Dolphin other than a single cheque which was a loan. The other arresting officer, Detective Constable Clarke, confirmed, to some extent, the comments attributed by Detective Constable Ollerenshaw. He said that he was certain that the appellant had denied having any money off Mr Dolphin, other than one cheque. At the close of the prosecution case, a submission was made to the learned judge, along the lines advanced before this Court by way of appeal, by Mr Lowe, that there was no case for the jury to consider in relation to the offences of theft because, in essence, it was said, they having been valid gifts, there could be no misappropriation for the purposes of the Theft Act. The learned judge rejected that submission and in due course summed up this case to the jury in a fair and comprehensive manner and only limited complaint, to which in a moment we shall come, is made about the summing-up. The submission is made in the subsidiary part of Mr Lowe's address to this Court, that the learned judge failed to draw sufficient attention to the fact that one of the police officers accepted that the defendant had mentioned a loan upon her arrest and that was a misdirection which affects the validity of the conviction on count 2. At page 10B of his summing-up, the judge said this:
When she was arrested the police say that she said: 'I've had one cheque off him' and one officer said that there was a reference to the fact that it was a loan and she was going to pay it back, the other said that that was not mentioned. She said that what she said when she was arrested was something along the lines of the fact that she had borrowed a cheque off him.

At page 36C, the judge said this:

The officer said that they explained to her that they would obviously have to go to Walsall police station so as to discuss matters, and she then said: 'I had one cheque from him which is a loan, and I'm paying him back'. Now, the other officer, you will remember, DC C larke, and I will remind you of his evidence shortly has no recollection of the words 'which is a loan and I'm paying him back'.

In our judgment, the learned judge properly drew attention to the divergence between the evidence of the two officers and to the account given by the appellant in relation to that matter and this point is, as it seems to us, without substance. The other subsidiary matter about which complaint is made is that the judge should have specifically directed the jury that there was an issue in the case as to whether Mr Dolphin was divesting himself of his money, because he was worried about the possibility of a fraud investigation by reason of the fact that, despite the assets which he had in his building society, he was drawing certain state benefits. It may be that it would have been preferable if the learned judge had specifically referred to that matter. But having read the fair and full way in which he summed this matter up to the jury and placed the issues before them, we are quite unpersuaded that that omission could of itself be regarded as in any way rendering the jury's verdicts on these different counts unsafe. That complaint therefore fails. We turn to the principal thrust of Mr Lowe's submission. It is that the judge should not have left this case to the jury, the prosecution evidence having been concluded. In order to understand the way in which the matter is put, it is convenient, first, to rehearse the relevant provisions of the Theft Act 1968. Section 1(1) says this:
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A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it . . .

Section 2(1) says this:

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, on behalf of himself or of a third person; (b) if he appropriates the property in the belief that he would have the other's consent if the other knew of the appropriation and the circumstances of it . . .

(c) is for present purposes immaterial. Section 3(1) says this:

An 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.

Mr Lowe submits that there was no evidence that Mr Dolphin parted with his money unwillingly or by reason of duress or deception. He understood the concept of ownership, and was capable of divesting himself of property and the recipient of a valid gift cannot, submitted Mr Lowe, be convicted of theft. In support of that proposition, he relies upon a decision of a differently constituted division of this Court in R v Mazo [1997] 2 Cr App Rep 518, [1996] Crim LR 435. In particular, he refers to a passage in the judgment of Pill LJ, giving the judgment of the Court, starting at page 520F of the former report where, by reference to counsel for the appellant, Pill LJ said:
His central submission is that no sufficient direction was given to the jury upon one element of the offence which needed in the circumstances to be proved, namely that the transfers to the appellant, the gifts, inter vivos, were not valid gifts. C ounsel agree that there were two issues in the case. Mr Oldman [he was counsel for the prosecution] accepts that if there were valid gifts, inter vivos, there could be no theft. He accepts too that the jury required a direction to the validity of the gifts, as well as a direction upon the state of mind of the appellant in receiving them. C learly the circumstances of the transfers needed to be considered; on the one hand the state of mind of the donor and on the other the conduct of the appellant and her state of mind in receiving and cashing the cheques. It is clear that a transaction may be a theft for the purpose of section 1(1) of the Theft Act 1968 notwithstanding that it was done with the owner's consent if it was induced by fraud, deception or a false representation: see Director of Public Prosecutions v Gomez . . . It is also common ground that the receiver of a valid gift, inter vivos, could not be the subject of a conviction for theft. In Gomez, reference was made to the speech of Viscount Dilhorne in Lawrence v Metropolitan Police Commissioner . . . In the course of his speech, with which the other members of the House agreed, Lord Dilhorne stated: 'A fortiori, a person is not to be regarded as acting dishonesty if he appropriates another's property believing that, with full knowledge of the circumstances, that other person has in fact agreed to the appropriation'. 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.

Mr Lowe rightly drew our attention to the case of Lawrence v Commissioner of Police for the Metropolis [1972] AC 626, [1971] 2 All ER 1253 and to a passage in the speech of Viscount Dilhorne which starts at page 631H of the former report:
I see no ground for concluding that the omission of the words 'without the consent of the owner' was inadvertent and not deliberate, and to read the subsection as if they were included is, in my opinion, wholly unwarranted. Parliament by the omission of these words has relieved the prosecution of the burden of establishing that the taking was without the owner's consent. That is no longer an ingredient of the offence.
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Viscount Dilhorne there was referring to section 1(1) of the 1968 Act. Mr Lowe's submission is twofold. First, that by virtue of the definition of dishonesty in section 2(1)(b) of the Act, which we have already read, a person cannot be regarded as dishonest if he believes he would have the owner's consent if the owner knew of the appropriation. In the present case, there was no evidence to prove that Mr Dolphin was not consenting to appropriation, and therefore, there could not be dishonesty. Mr Lowe is in consequence critical of the direction given by the learned judge in the summing-up, which appears at page 6C:
Now, what is the position in relation to gifts? The defendant says that Mr Dolphin made gifts to her and that those were for her son. If any payment, or the transfer of the TV for instance, was or might have been a gift, then you would have to consider whether she was dishonest in accepting it. The relevant question in relation to any gift would be this. Was Mr Dolphin so mentally incapable that the defendant herself realised that ordinary and indecent people would regard it as dishonesty to accept that gift from him?

It seems to us that that first part of Mr Lowe's submission encounters very serious difficulties in the form of Lawrence. That is emphasised when one turns to consider the second part of his submission, in relation to appropriation. Mr Lowe accepts that there are passages in Lawrence which indicate that an appropriation can occur without the consent of the owner. He refers to a passage at page 632E, in these terms:
Belief or the absence of belief that the owner had with such knowledge consented to the appropriation is relevant to the issue of dishonesty, not to the question whether or not there has been an appropriation.

But says Mr Lowe, Viscount Dilhorne and the other members of the House of Lords who agreed with his speech in Lawrence did not need to go that far for the purpose of the decision on the facts in that case. Mr Lowe also recognises that he encounters some difficulty by virtue of Dobson v General Accident Fire and Life Assurance Corporation plc [1990] 1 QB 274, [1989] 3 All ER 927. In particular, in the passage in Parker's LJ speech at page 285C of the former report, where the learned Lord Justice said that he could not regard R v Morris [1984] AC 320, [1983] 3 All ER 288:
. . . as having overruled the very plain decision in Lawrence, that appropriation can occur even if the owner consents.

Mr Lowe invites us to distinguish Lawrence and Dobson because in those cases consent had been obtained by some sort of deception. He, rightly, further drew our attention to another authority which appears to be contrary to the submission, namely Director of Public Prosecutions v Gomez [1993] AC 442, [1993] 1 All ER 1 in particular a passage in the speech of Lord Keith at page 457B of the former report, which contains this reference to Lawrence:
. . . Viscount Dilhorne's speech contains two clear pronouncements, first that it is no longer an ingredient of the offence of theft that the taking should be without the owner's consent and second, that an appropriation may occur even though the owner has permitted or consented to the property being taken.

At page 460D, in Lord Keith's speech appears this:

Indeed, Reg v Lawrence . . . laid down unequivocally that an act may be an appropriation notwithstanding that it is done with the consent of the owner. It does not appear to me that any sensible distinction can be made in this context between consent and authorisation.

Mr Lowe invited us to consider the eighth report of the Criminal Law Revision Committee when approaching our interpretation of the Theft Act. That is an invitation which we unhesitatingly rejected, having regard to what Lord Keith said at page 464C in Lawrence. In summary, Mr Lowe's submission is that, although the Court is bound by Lawrence and Gomez, it should construe them narrowly as not applying to gifts or to cases where
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property has been obtained with the consent of the owner and that consent was not induced by deception or duress. He sought comfort in that submission from a number of articles by Professor Sir John Smith QC, in particular one at [1996] Crim LR 435. On behalf of the Crown, Mr Morse succinctly submitted that the Theft Act 1968 created a new form of theft, and that Mr Lowe's submission could only succeed if that crucial history was ignored. Appropriation is a matter independent of the consent of the owner as Lawrence and Gomez unequivocally asserted and as a differently constituted division of this Court in R v Kendrick; R v Hopkins [1997] 2 Cr App Rep 524, [1997] Crim LR 359 plainly recognised. In our judgment, it is clear beyond peradventure, on the authorities, that appropriation for the purpose of the Theft Act 1968 does not depend on the consent of the owner. That point was central to the House of the Lords decision in Lawrence (see the passages in the speech of Viscount Dilhorne at page 631H - 632A and 632E which we have already cited). That position was made plain in Dobson v General Accident , in particular, by Parker LJ at page 285C, in the passage which we have cited, and Dobson and General Accident was approved in Gomez, by Lord Keith, at page 463H, in a passage which it is unnecessary to read. Furthermore, as is plain, Gomez ambiguously reaffirmed the Lawrence approach (see, in particular, the passage in the speech of Lord Keith at page 457B, and the further passage at page 460D, which we have already cited). In our judgment, in relation to theft, one of the ingredients for a jury to consider is not whether there has been a gift, valid or otherwise, but whether there has been appropriation. A gift may be clear evidence of appropriation. But a jury should not, in our view, be asked to consider whether a gift has been validly made because, first, that is not what section 1 of the Theft Act requires; secondly, such an approach is inconsistent with Lawrence and Gomez, and thirdly, the state of mind of a donor is irrelevant to appropriation: see, in particular, the speech of Lord Browne-Wilkinson, with which Lord Jauncey agreed, in Gomez at 495H:
. . . I regard the word 'appropriation' in isolation as being an objective description of the act done irrespective of the mental state of either the owner or the accused. It is impossible to reconcile the decision in Lawrence (that the question of consent is irrelevant in considering whether there has been an appropriation) with the views expressed in Morris, which latter views in my judgment were incorrect.

Accordingly, as it seems to us, the two concessions made by prosecuting counsel during the hearing of the appeal in Mazo, namely that there cannot be theft if there was a valid gift, and that a direction to the jury is necessary as to the validity of gifts were wrongly made and led that Court into error. At page 521C, where the Court cites the passage from Lord Dilhorne's speech in Lawrence, relating to dishonesty, it does so as impliedly excluding valid gifts from the ambit of theft. For our part, we are unable to read that passage in Lord Dilhorne's speech as bearing that implication. The authorities, as it seems to us, make clear the importance of maintaining a distinction in relation to theft between the two quite separate ingredients of appropriation and dishonesty. Belief or lack of belief that the owner consented to the appropriation is relevant to dishonesty. But appropriation may occur even though the owner has consented to the property being taken. In the present case, the jury were so directed. The direction which we have already cited from page 6 of the summing-up was, in our judgment, an entirely appropriate and accurate direction as to dishonesty. Despite the strictures of Professor Sir John Smith QC in [1997] Crim LR 359, we respectfully agree with the approach of the differently constituted division of this Court in Kendrick and Hopkins. Civil unlawfulness is not a constituent of the offence of theft, and we are unpersuaded that Lord Browne-Wilkinson's analysis in Gomez was flawed in the way which Professor Smith there suggests. We derive some comfort in this conclusion from the article by Simon Gardener in [1998] Crim LR 35. Professor Smith's response to that article by letter, at page 80 of [1998] Crim LR is, in our view, not perhaps the most cogent of his outstanding contributions to the criminal law. For these reasons, this appeal against conviction is dismissed.
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Appeal dismissed.

C opyright 2 0 1 3 L exis N exis . A ll rights res erved.

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