R v Gilks
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CAIRNS |
| Judgment Date | 27 June 1972 |
| Judgment citation (vLex) | [1972] EWCA Crim J0627-1 |
| Docket Number | No. 3734/C/71 |
| Court | Court of Appeal (Criminal Division) |
| Date | 27 June 1972 |
[1972] EWCA Crim J0627-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Cairns
Lord Justice Stephenson
and
Mr. Justice Willis
No. 3734/C/71
MR. WEBB (for MR. B. GALPIN) appeared on behalf of the Appellant.
MR. R. PURNELL (for MISS S. NORWOOD) appeared on behalf of the Crown.
The judgment I am about to read is the judgment of the Court. Mr. Justice Willis, who is unable to be present this morning, has read it and expressed his concurrence with it.
On the 12th July, 1971 at South West London Quarter Sessions (Deputy Chairman Mr. Bruce Campbell, Q.C.), the Appellant was convicted of theft and fined £250. He applied for leave to appeal against conviction and the full Court granted leave to appeal. Such leave was not strictly necessary because all the srounds of appeal relied on are alleged misdirections on the lavw.
The facts were as follows:
On 27th March, 1971, the Appellant went into Ladbrokes' Betting; Shop at North Cheam and placed some bets upon certain horses: one of his bets was on a horse called "Fighting Scot". "Fighting Scot" did not get anywhere in the race which was in fact won by a horse called "Fighting Taffy". Because of a mistake on the part of the relief manager in the betting shop, the Appellant was paid out as if he had backed the successful horse with the result that he was overpaid to the extent of £106. 63p. He was paid £117.25p. when the amount he had won (on other races) was only £10.62p. At the very moment when he was being paid the Appellant knew that a mistake had been made and that he was not entitled to the money, but he kept it. He refused to consider repaying it, his attitude being that it was Ladbrokes' hard lines.
The questions of law arise under the following sections of The Theft Act, 1968:
Section 1(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; and "thief" and "Steal" shall be construed accordingly.
Section 2(1) 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 ….. Section 5(4) Where a person gets property by another's mistake and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds.
The Deputy Chairman gave rulings in law to the following effect: he ruled that at the moment when the money passed it was money "belonging to another" and that that ingredient in the definition of theft in Section 1(1) of the Act was therefore present. Accordingly Section 5(4) had no application to the case. If he was wrong about that then, he said, "obligation" in the sub-section included an obligation which was not a legal obligation. He told the jury that it was open to them to convict the Appellant of theft in respect of the mistaken overpayment. And he directed them that the test of dishonesty was whether the defendant believed that "when dealing with your bookmaker if he makes a mistake you can take the money and keep it and there is nothing dishonest about it."
In the grounds of appeal it is contended that all these directions were wrong.
The main foundation of one branch of the Appellant's case at the trial and in this Court was the decision of the Court of Appeal in Morgan v. Ashcroft. 1938 1 Kings Bench, 49. In that case a bookmaker, by mistake, overpaid a client £24. It was held that the bookmaker was not entitled to recover the money by action because that would involve taking accounts of gaming transactions which were void under The Gaming Act 1845. The argument proceeded as follows: when Ladbrokes paid the Appelant they never supposed that they were discharging a legal liability; even if he had won they need not, in law, have paid him. They simply made him a gift of the money. The Deputy Chairman was wrong in saying that at the moment of payment the money "belonged to another". At that very moment its ownership was transferred and therefore the Appellant could not be guilty of theft unless the extension given by Section 5(4) to the meaning of the words "belonging to another" could be brought into play. But Section 5(4) had no application because under the rule in Morgan v. Ashcroft the Appellant had no obligation to repay.
The Deputy Chairman did not accept this line of argument. He held that it was unnecessary for the prosecution to rely on Section 5(4) because the property in the £106. 63p. never passed to the Appellant. In the view of this Court that ruling was right. The Sub-section introduced a new principle into the law of theft but long before it was enacted it was held in R. v. Middleton, 1873 L.R. 2 C.C.R. 38, that where a person was paid by mistake (in that case by a Post...
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