Court of Appeal
| DOI | 10.1177/002201838404800302 |
| Date | 01 August 1984 |
| Published date | 01 August 1984 |
| Subject Matter | Case Notes |
COURT
OF
APPEAL
CLAIM OF
RIGHT
IN
DECEPTION
CASES
R. v. Woolven
InR.
v. Woolven (1983) Cr.App.R. 231, the Court of Appeal has
looked at the
proper
guidance to be given to a jury in a case of
dishonestly obtaining property by deception as to the meaning of
dishonesty where a claim of right is pleaded. The appellant W, using
a false name, opened abank account in the name of an
"off
the
shelf'
company (recently acquired by his co-defendant R.) knowing
that money was to be transferred into it by R. Shortly afterwards R.,
whose account at the same bank was overdrawn, telephoned the
bank purporting to be an official of a company previously employ-
ing him and, in accordance with what he knew to be that company's
practice of transferring money to its subsidiary companies, arranged
for the transfer of £20,000 into another account. This
other
account
was, of course, not that of a subsidiary company but the one recently
opened by W. (In respect of his activities R. was convicted
oftheft
of
the £20,000.) When the appellant, W., tried to withdraw £16,200
from the account he had opened, the fraud was discovered. He was
subsequently arrested and charged with attempting to obtain that
money by deception.
There
was some conflict in the evidence of W.
and R. as to the extent of W.'s knowledge and involvement in the
scheme but at his trial W. stated
that
he had believed the money
transferred into the account was R.'s own money. His explanation
was that he had understood the money was being transferred from
one of R.'s accounts in a devious way since one of R.'s
other
accounts was overdrawn and an attempted withdrawal from the
account in credit would be seized by the bank to set off against the
overdrawn account. In essence the appellant's argument was that
since he thought the money belonged to R., he was only attempting
to obtain property to which he believed R. had a claim of right and
was, therefore, not acting dishonestly. In cross-examination at his
trial he did eventually agree
that
on the basis of his account of the
facts
other
people would think his conduct was dishonest.
246
Court
of
Appeal
It
was contended on appeal
that
dishonesty in section 15 of the
Theft Act 1968, which provides for the offence of dishonestly
obtaining property bydeception, has the same meaning as in section
1 of the Act where the offence of theft is defined. Accordingly, it
was argued, the judge should have directed the jury along the lines
of the partial definition of dishonesty set out in section 2(1)(a) of
the Act, which provides that an appropriation of property is not to
be regarded as dishonest if done in the belief that the person has a
right in law to deprive the
other
of property on behalfof himself or
another. The operation of section 2(1 )(a) isexpressly limited to the
offence of theft but the effect of the claim of right principle
contained in it should,
it
was submitted, be read into the offence of
dishonestly obtaining property by deception. Some support for the
principle that a claim of right should negative dishonesty in cases of
deception is apparent in the report of the Criminal Law Revision
-Committee which preceded the Theft Act and in leading textbooks.
The Court of Appeal in the present case, while not expressly
accepting such a principle, saw no decisive authority against the
argument thatabsence of a claim of right should be read into section
15 as an element of the deception offence.
Looking to the judge's summing up, the court noted that he had
directed the jury in accordance with the decision in R. v. Ghosh
[1982] Q.B. 1053; 47 J.C.L. 27, namely
thatthe
jury must consider
whether the appellant's actions were dishonest measured by the
standards of any ordinary man and, if so, whether the appellant
must have realised his conduct would be dishonest by those
standards. The present Court was satisfied, furthermore, that the
judge had
dearly
brought home to the jury that the appellant's own
account of the events and of the state of his own mind was to be
considered and that he was to be acquitted if it was thought he might
have regarded his conduct as honest. In light of the facts as put
forward by the appellant, the account of his knowledge of the true
facts given by his co-defendant and the eventual admission by the
appellant that ordinary people would have found his conduct
dishonest, the Court felt that even if the jury believed his version of
the facts, they would disbelieve his assertion that he himself had not
thought his conduct to be dishonest. The incorporation of a
reference to a claim of right, as set
out
in section 2(1)(a) or
otherwise, would not, in the Court of Appeal's view, have added
247
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