R v Hinks (2000) The Times, October 27, House of Lords
The Statute
Section 1 of the 1968 Act provides: "(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..."
Section 3 provides: "(1) Any assumption by a person of the rights of an owner amounts to an appropriation..."
The Facts
LORD STEYN said that the question certified for the House of Lords was: "Whether the acquisition of an indefeasible title to property is capable of amounting to an appropriation of property belonging to another for the purposes of section 1(1) of the Theft Act 1968." In 1996 the defendant was aged 38. She was the mother of a young son. She was friendly with John Dolphin, aged 53, who was of limited intelligence. She described herself as Mr Dolphin’s main carer. In the period April to November 1996 Mr Dolphin withdrew sums totalling around £60,000 from his building society account and deposited them in the defendant’s account. During the summer of that year Mr Dolphin made withdrawals of the maximum permissible sum of £300 every day so that he lost most of his savings and moneys inherited from his father.
The defendant was charged with six counts of theft, five covering the moneys withdrawn and one covering a television set transferred by Mr Dolphin to the defendant.
The prosecution case was that the defendant had influenced and coerced Mr Dolphin to withdraw the moneys, and documents were produced summarising the flow of funds from his account to hers. Building society employees testified about the daily visits by the defendant and Mr Dolphin to effect the withdrawals. The thrust of their evidence was that the defendant did most of the talking and would interrupt Mr Dolphin if he tried to say something. Dr Fuller, a consultant psychiatrist, assessed Mr Dolphin’s IQ as in the range between 70 to 80 and described him as naive and trusting and having no idea of the value of his assets or the ability to calculate their value. Dr Fuller said he thought Mr Dolphin was capable of making the decision to divest himself of money, but that it was unlikely that he could make that decision alone. The defendant did not dispute the fact of the withdrawal of the moneys from Mr Dolphin’s account and the deposit of sums in her account. She also admitted that she had accepted the television set. But she said that Mr Dolphin had handed the moneys as well as the colour television set as gifts to her or her young son or as part of a loan. She asserted that she had acted honestly throughout. In his summing-up to the jury the judge had stated: "If any payment, or the transfer of the TV for instance, was or might have been a gift, then you have to consider whether (the defendant) 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 decent people would regard it as dishonest to accept that gift from him?" The judge withdrew one count of theft from the jury and on the remaining counts the jury returned unanimous counts of guilty.
The Law
Lord Steyn said that the starting point of the appeal must be the words of the 1968 Act as interpreted by the House in its previous decisions. In R v Lawrence (1972) AC 626 the defendant, a taxi driver, had without objection on the part of an Italian student asked for a fare of £6 for a journey for which the fare was 10/6d. The taxi driver was convicted of theft.
On appeal the main contention was that the student had agreed to pay the fare. But it was clear that the taxi driver had not told the student what the lawful fare was. The appeal was dismissed. The ratio decidendi of Lawrence, namely that in a prosecution for theft it was unnecessary to prove that the taking was without the owner’s consent, went to the heart of the certified question in the present case.
In R v Gomez (1993) AC 442 the defendant, an assistant shop manager, agreed with two accomplices that goods would be supplied by the shop in return for cheques which he knew to be stolen. The Court of Appeal quashed a conviction arising from a plea of guilty and certified the following question for the House: "When theft is alleged and that which is alleged to be stolen passes to the defendant with the consent of the owner, but that has been obtained by a false representation, has (a) an appropriation within the meaning of section 1(1) of the Theft Act 1968 taken place, or (b) must such a passing of property necessarily involve an element of adverse interference with or usurpation of some right of the owner?" By a majority the House answered (a) in the affirmative and (b) in the negative. The leading judgment was in terms which unambiguously ruled out the submission that section 3(1) of the 1968 Act did not apply to a case of gift duly carried out because in such a case the entire proprietary interest would have passed. Gomez gave effect to section 3(1) by treating "appropriation" as a neutral word comprehending "any assumption by a person of the rights of an owner". If the law was as held in Gomez, it destroyed the argument advanced on the present appeal, namely that an indefeasible gift of property could not amount to appropriation. The principal submission for the defendant was that the law as expounded in Lawrence and Gomez must be qualified to say that there could be no appropriation unless the owner retained some proprietary interest, or the right to resume or recover some proprietary interest, in the property.
Alternatively, it was argued that "appropriates" should be interpreted as if the word "unlawfully" preceded it. Counsel for the defendant said that the effect of the decisions in Gomez and Lawrence was to reduce the actus reus of theft to vanishing point and that the result was to bring the criminal law into conflict with the civil law.
Moreover, he argued that the two decisions might produce absurd and grotesque results and that the mental requirements of dishonesty and intention of permanently depriving the owner of property were insufficient to filter out some cases of conduct which should not sensibly be regarded as theft. He did not suggest that the defendant’s dishonest and repellent conduct came within such a category.
His Lordship said that he was quite unpersuaded that the House of Lords overlooked the consequences of its decisions in Lawrence and Gomez or that the law as stated in those cases required revision. If the law was restated by adopting a narrower definition of "appropriation" the outcome was likely to place beyond the reach of the criminal law dishonest persons who should be found guilty of theft.
The law as settled in Gomez and Lawrence could be applied by judges and juries in a way which, absent human error, did not result in injustice. In practice the mental requirements of theft were an adequate protection against injustice.
Defence counsel’s principal submission was directly contrary to the holdings in Lawrence and Gomez and was rejected. Nor should the word "appropriation" be interpreted as if the word "unlawfully" preceded it. That would also run counter to the decisions in Lawrence and Gomez. It followed that the certified question must be answered in the affirmative. In the light of a fair and balanced summing-up and a strong prosecution case, the jury accepted the prosecution case, rejected the defendant’s account as untruthful and found that she had acted dishonestly by systematically raiding the account of a vulnerable person who trusted her.
Even if one assumed that the judge should have directed more fully on dishonesty, his Lordship was satisfied that the convictions were entirely safe.
In those circumstances it was not necessary, and indeed undesirable, for their Lordships to pronounce upon what directions should be given on dishonesty in cases akin to the present.
The Decision
"Appropriation" within the meaning of section 3(1) of the Theft Act 1968 was not to be narrowly construed and was a neutral word which comprehended any assumption of the owner’s rights. Accordingly, the acquisition of an indefeasible title to property by accepting a gift from a vulnerable and trusting person was capable of amounting to "appropriation" under the Act. The House of Lords by a majority, Lord Hutton and Lord Hobhouse dissenting, dismissed an appeal by the defendant, Hinks, from a decision of the Court of Appeal (2000) 1 Cr App R 1 who, upheld the defendant’s conviction before Crown Court on five counts of theft for which she was sentenced to 18 months imprisonment on each count, such terms to run concurrently.
Lord Slynn delivered a concurring speech and Lord Jauncey agreed.
Lord Hutton and Lord Hobhouse delivered dissenting speeches.
Comment
The first point worthy of note is that even after all this time (32 years) and numerous cases, we still have two Law Lords giving dissenting speeches.
The introduction to The Criminal law Revision Committee, 8th Report, Theft and Related Offences, Cmnd 2977 says, "to consider with a view to providing a simpler and more effective system of law..."
At para 34 they say, "We hope, and believe, that the concept of 'dishonest appropriation' will be easily understood even without the aid of further definition. But there is a partial definition of 'appropriates' in clause 3(1), which is included partly to indicate that this is the familiar concept of conversion but also for particular reasons later to be mentioned. Clause 3(1) provides that-
' Any assumption by a person of the rights of an owner amounts to an appropriation.'
It seems to us natural to refer to the act of stealing in ordinary cases as 'appropriation'. We see no reason why the word should seem strange for more than a short time. It is moreover not a new word to use in connection with theft. Sir Fitzjames Stephen (afterwards Stephen J.), in his 'General View of the Criminal Law ' (1863 edition, p. 129) suggested as a Definition of theft: -' To steal is unlawfully, and with intent to defraud, by taking, by embezzlement, by obtaining by false pretences, or in any other manner whatever to appropriate to the use of any person any property whatever real or personal in possession or in action, so as to deprive any other person of the advantage of any beneficial interest at law or in equity, which he may have therein'
Sir F. Stephen added:-
' The effect of adopting this definition would be to include under one description all the cognate offences which at present make up the crime of theft. Its terms would include larceny, embezzlement, false pretences, larceny by bailees, fraudulent breaches of trust. and offences by factors, agents, and bankers, and thus five or six useless and intricate distinctions between cognate crimes would be abolished.'
In 1877, in a letter to the Attorney General, he suggested the following definition: -
'Theft is the act of appropriating to one person the moveable property of another, fraudulently, without claim of right, and without the consent of the owner.' An even closer precedent is in the definitions of stealing and fraudulent breach of trust in clauses 183 and 184 of the draft criminal code (C-1893) prepared for Jamaica in 1877 by Mr. R. S. Wright (later Wright J.) but never enacted. These clauses read as follows:-
'183. A person is guilty of stealing if he dishonestly appropriate a thing of which he is not the owner.
184. A person is guilty of fraudulent breach of trust if he dishonestly appropriate a thing, the ownership of which is vested in him as a trustee for any other person '.
Under s. 403 of the Indian Penal Code the offence of dishonest misappropriation of property is committed by a person who 'dishonestly misappropriates or converts to his own use any moveable property '. (This offence however is distinct from that of theft under s. 378, which is committed by a person who ' intending to take dishonestly any moveable property out of the possession of any person without that person’s consent, moves that property in order to such taking '.)"
Before the enactment of the Theft Act 1968 English law required a taking and carrying away of the property as the actus reus of the offence. In 1968 Parliament chose to broaden the reach of the law of theft by requiring merely an appropriation.
What we are considering here is the concept of where a person acquires an indefeasible right to property - can there be appropriation? Clearly it would seem there can be, and, it is submitted, with the increase in the age of the population and more homes for the elderly opening up, it is an area of the law that requires certainly as illustrated by the case of Mazo [1997] 2 Cr App R 518 and R v Kendrick and Hopkins [1997] 2 Cr App R 524.
In Mazo the accused had received large sums of money from an elderly lady and claimed that they were gifts the Court of Appeal quashed the conviction because the trial judge had not directed the jury adequately on the issue of the lady’s capacity to make a valid gift, Pill L.J. stating at p. 522E- 523A.
"Undoubtedly in this case there was evidence which, if the jury believed it and made the necessary inferences, could have found a conviction for theft. There was evidence to suggest; though it was in issue, that Lady's mental capacity was such that she could not make a valid gift. The prosecution case being that there was no gift because there was no capacity to give, it was essential that the jury be confronted plainly with the issue which arose upon her ability to make a valid gift. It was necessary for the jury, before convicting, to consider the state of mind of the donee and the circumstances of the transfer, but it was also essential to prove that the donor had no sufficient degree of understanding to make a valid gift. The jury were never given a plain direction to that effect … It is, in the judgment of the court, as important upon the present criminal charge as it is in a civil case involving a transfer inter vivos to consider the state of mind of the donor and whether a valid gift can be and is made."
In contrast, in Reg. v. Kendrick and Hopkins there was clear evidence that the owner of the monies and investments, who was aged 99, was mentally incapable of managing her own affairs and was thus incapable of making a gift. The Court of Appeal was right to uphold the conviction for conspiracy to steal by the managers of the residential home where the owner lived and who had acquired large sums of money which had belonged to her and which they claimed were gifts. Ebsworth J., delivering the judgment of the Court of Appeal, rejected the submission of defence counsel that the judge had failed to indicate sufficiently to the jury the level of mental incapacity which would be necessary to cause the donor to be incapable of making a gift and stated at p. 538A: "It was, in our judgment, a case in relation to Mrs. Clare’s mental capacity, very different on its facts from Mazo and the judge in summing-up, in our view, made it wholly clear to the jury, for the purposes of the law, what the evidence was in relation to the level of mental capacity.
There is nothing in the summing-up, and nothing in the evidence, as it appears from the summing-up, which could have resulted in a jury being confused as to whether Mrs. Clare was somebody who is just ‘not quite up to it’, with reduced mental capacity, which was what was said of Lady S., or lacking the capacity to manager her affairs. There is, both for reasons of a strict reading of the law and, in our judgment, on the way in which it was put to the jury, no basis upon which there was either a misdirection or anything which could have rendered the verdict of the jury unsafe." Therefore there was an appropriation in that case and there was dishonesty because the defendants knew that the elderly lady was mentally incapable of making a gift.
In this present appeal, of Hinks, reading the facts of the case as given, it would seem that there appears to have been a systematic drawing of money to the extent of the permissible sum of £300 per day by a naive and trusting man accompanied a woman who, whilst at the Building Society did most of the talking; all of which points to "dishonestly" by any normal standard - the standards of ordinary and decent people quite rightly referred to by the trial judge. Clearly there was appropriation and this decision is in accordance with the current law of Lawrence and Gomaz.
There are those who will say that the Lords have missed a golden opportunity to correct the law and find that a person who acquires an indefeasible right to property does not thereby steal.