Notes Of Cases

Publication Date01 Sep 1974
DOIhttp://doi.org/10.1111/j.1468-2230.1974.tb02403.x
NOTES
OF
CASES
OBTAINING
A
PECUNIARY
ADVANTAGE
IN
D.P.P.
v.
Turner
the House of Lords was at last confronted
with the enormously troublesome concept of
‘(
a
pecuniary
advantage
introduced into the law of theft, and defined, by section
16
of the Theft Act
1968.
T owed money to
B
and when asked for
payment gave
B
a bad cheque. He was charged with obtaining
a
pecuniary advantage, namely the evasion of a debt, by deception
contrary to section
16
(2)
(a).
The dishonesty and the implied
representation that the cheque was good were admitted.
T
was
convicted and his conviction quashed by the Court of Appeal
on the grounds that, since he had not had the means to pay, the
deception had not prevented payment from being made. The debt
had not been evaded by the deception. (‘We do not think that
the handing over of
a
worthless cheque
(
evades
a debt unless
the creditor is shown to have had the opportunity of taking cash
but was induced by deception to take the cheque instead.”3
Section
16
reads, in relevant part:
(1)
A
person who by any deception dishonestly obtains
for himself
or
another any pecuniary advantage shall on
conviction
.
.
.
be liable [to a penalty].
(2)
The cases in which
a
pecuniary advantage within the
meaning of this section is to be regarded as obtained for a
person are cases where-
(a)
any debt
or
charge for which he makes himself liable
or
is
or
may become liable
.
.
.
is reduced
or
in whole
or
in part evaded
or
deferred;
or
(b)
he is allowed to borrow by way of overdraft,
or
to take
out any policy of insurance
or
annuity contract,
or
obtains any improvement of the terms on which he is
allowed to do
so;
or
(c)
he is given the opportunity to earn remuneration
or
greater remuneration in an office
or
employment,
or
to
win money by betting.
. . .
The question for the Lords was whether, when
D
has an
obligation to pay an antecedent,
or
previously incurred, debt to
P
at once and in legal tender his dishonestly deceiving
P
into
accepting instead a bad cheque, representing that
it
would be
honoured, amounts to the offence
of
obtaining
n
pecuniary
1
[1973] 3
W.L.R.
358; El9731 3
All
E.R.
P24.
2
[1973] 1
W.L.R.
653;
[1973]
2
All
E.R.
828.
3
Ibid.
at
pp.
655~456.4;
830d-e.
562
SEPT.
1974
NOTES
OF
CASES
568
advantage, the evasion of
a
debt, by deception. Their Lordships
held unanimously that
it
did and in reaching that result read
''
is
to be regarded as obtained
yy
of section
16
(2)
as constructive
language not requiring an actual obtaining to have taken place.
In the language
of
Lord Reid:
('
'
Is to be regarded as obtained must,
I
think, mean
'
is
deemed to have been obtained even
if
in fact there was
none."
'
Having said that he was
'(
at a loss to understand why that was
not clearly statedyYy
5
Lord Reid, by construing
"
regarded
)'
to
mean
I'
deemed," did the very thing he warned against two
paragraphs before
:
6'
As
the section creates a criminal offence
it
must not be
loosely construed. Each word must be given its ordinary
or
natural meaning.
It
may be permissible, where necessary,
to give some word
a
secondary meaning of which
it
is
reasonably capable in ordinary speech. But we must not
substitute
for
any word some other word
or
phrase
or
write
in anything which is not there."
The objections to be made to this substitution
of
one word
("
deemed
,¶)
for
another
("
regarded
¶¶)
are first that it breaches
the rule of construction just announced and second that as a matter
of statutory interpretation
it
is quite wrong.
It
limits the
scope of
I'
any pecuniary advantage
yy
in section
16
(1)
to the three
situations contained
in
section
10
(2)
(a)
(b)
and
(c).
Had section
16
(1)
stood alone,
'(
any pecuniary advantage
',
would have been
for the courts to apply according to its ordinary
or
natural mean,-
ing. That meaning may well include situations which fall outside
section
16
(2).7
But in defining by reference to three specified
situations the draftsman has limited the meaning of the phrase
to less than its natural scope. That the three situations are
definitional and not exemplary is made clear by the governing
clause:
"
The cases in which
a
pecuniary advantage within the
meaning of this section
is
to
be
regarded as obtained
for
a person
are cases where-[(a)
(b)
(c)]."
(Emphasis added.) In all other
cases,
a
pecuniary advantage
is
not
to be regarded as obtained.
The language is exclusory.
The three situations contained within section
16
(2)
are each
cases of obtaining
a
pecuniary advantage according to the natural
meaning
of
that language. To take the subsection at issue here,
by section
16
(2)
(a) a debt-the purest pecuniary disadvantage-
The function of section
16
(2)
is definitional.
4
[1973] 3
W.L.R.
352, S4F-0; [1973]
8
All
E.R.
124,
126g.
6
Ibid.
7
For
example, an employer might induce an employee
to
accept
low
wagee on
6
nia.,
0-D.
the strength
of
B
false promise. Would
8.
16
apply?

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