R v Hall
Jurisdiction | England & Wales |
Judge | LORD JUSTICE EDMUND DAVIES,LORD JUSTICE KARMINSKI,MR. JUSTICE FORBES |
Judgment Date | 20 October 1972 |
Neutral Citation | [1972] EWCA Crim J0505-9 |
Judgment citation (vLex) | [1972] EWCA Crim J1020-2 |
Docket Number | No. 2804/B/72,No. 4491/B/71 |
Court | Court of Appeal (Criminal Division) |
Date | 20 October 1972 |
[1972] EWCA Crim J0505-9
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Edmund Davies
Lord Justice Stephenson
and
Mr. Justice Boreham
No. 4491/B/71
MR. A. JOLLY appeared on behalf of the Appellant.
MR. V. JALLAND appeared on behalf of the Crown.
Geoffrey Hall appeals, by leave of the single Judge, from his conviction at the Manchester Crown Court last September on seven counts of theft, in respect of which he received concurrent sentences totalling two years.
During 1968 Hall and two others started trading in Manchester as travel agents under the title of "People to People". The other partners received no remuneration, played purely insignificant parts, and were called as Crown witnesses. Each of the seven counts related to money received by Hall as deposits and payments for air-trips to America. In some instances a lump sum was paid by schoolmasters in respect of charter flights for their pupils, in other instances individuals made payments in respect of their own projected flights. In none of the seven cases covered by the indictment did the flights materialise, in none of them was there any refund of the moneys paid, and in each case the defendant admitted that he was unable to make any repayment. In some cases he disputed all liability on the grounds that the other parties had unjustifiably cancelled the proposed trips, in others he denied dishonesty. He claimed to have paid into the firm's general trading account all the sums received by him, asserted that those moneys had become his own property and had been applied by him in the conduct of the firm's business, and submitted that he could not be convicted of theft simply because the firm had not prospered and that in consequence not a penny remained in the bank.
Two points were presented and persuasively developed by Appellant's counsel: (1) that, while Hall had testified that all moneys received had been used for business purposes, even had he been completely profligate in its expenditure he could not in any of the seven cases be convicted of "theft" as defined by the Theft Act, 1968. There being no allegation in any of the cases of his having obtained any payments by deception, Mr. Jolly submitted that, having received from a client, say, £500 in respect of a projected flight, as far as the criminal law is concerned he would be quite free to go off immediately and expend the entire sum at the races and forget all about his client; (2) that section 1(1) of the Theft Act dealing with a person who " dishonestly appropriates", it is essential that the Crown establish that the accused was acting dishonestly at the time he appropriated. In accordance with the unreported case of R. v. Pulham (decided by this Court on June 15th, 1971 - No. 1681/A/71), this necessitates an express direction to that effect to be given to the jury. While it was accepted that the necessity for "dishonesty" being proved and the accused's assertion that he had acted throughout in the honest belief that he was entitled to use for the general business of the firm sums so received by him were all clearly brought out in the summing-up, such directions as were given were criticised as being in quite general terms and were not focussed in any way upon the time when appropriation occurred.
We dispose of point (2) by simply saying that, though the summing-up could with advantage have made the legal position clearer, we have come to the conclusion that it dealt adequately with this aspect of the offence charged, and had there been no other ground of criticism we should have been constrained to dismiss the appeal. But it did not stand alone, and the first point taken is far more formidable from the Crown's point of view.
Point (1) turns on the application of section 5(3) of the Theft Act, which provides that: "Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to the other". Mr. Jolly submitted that in the circumstances arising in these seven cases there arose no such "obligation" upon the accused. He referred us to a passage in the Eighth Report of the Criminal Law Revision Committee (Cmnd.2977), at page 127, which reads as follows: "Subsection (3) provides for the special case where property is transferred to a person to retain and deal with for a particular purpose and he misapplies it or its proceeds. An example would be the treasurer of a holiday fund. The person in question is in law the owner of the property; but the subsection treats the property, as against him, as belonging to the persons to whom he owes the duty to retain and deal with the property as agreed. He will therefore be guilty of stealing from them if he misapplies the property or its proceeds".
Mr. Jolly submitted that the example there given is, for all practical purposes, identical with the actual facts in R. v. Pulham, where, incidentally, section 5(3) was not discussed, the convictions there being quashed, as we have already indicated, owing to the lack of a proper direction as to the accused's state of mind at the time he appropriated. But he submits that the position of a treasurer of a solitary fund is quite different from that of a person like the accused, who was in general (and genuine) business as a travel-agent, and to whom people pay money in order to achieve a certain object - in the present cases, to obtain charter flights to America. It is true, he concedes, that thereby the travel-agent undertakes a contractual obligation in relation to arranging flights and at the proper time paying the air line and any other expenses. Indeed, the accused throughout acknowledged that this was so, though contending that in some of the seven cases it was the other party who was in breach. But what Mr. Jolly resists is that in such circumstances the travel-agent "is under an obligation" to the client "to retain and deal with …. in a particular way" sums paid to him in such circumstances.
What cannot of itself be decisive of the matter is the fact that the accused paid the money into the firm's general trading account. As Mr. Justice Widgery (as he then was) said in R. v. Yule (1964) 1 Queen's Bench 5, at page 10, decided under section 20(1)(iv) of the Larceny Act, 1916: "The fact that a particular sum is paid into a particular banking account … does not affect the right of persons interested in that sum or any duty of the solicitor either towards his client or towards third parties with regard to disposal of that sum". Nevertheless, when a client goes to a firm carrying on the business of travel agents and pays them money, he expects that in return he will, in due course, receive the tickets and other documents necessary for him to accomplish the trip for which he is paying, and the firm are "under an obligation" to perform their part to fulfil his expectation and are liable to pay him damages if they do not. But, in our judgment, what was not here established was that these clients expected them 'to retain and deal with that property or its proceeds in a particular way", and that an "obligation" to do so was undertaken by the Appellant.
We must make clear, however, that each case turns on its own facts. Cases could, we suppose, conceivably arise where by some special arrangement (preferably evidenced by documents), the client could impose upon the travel agent an "obligation" falling within section 5(3). But no such special arrangement was made in any of the seven cases here being considered. It is true that in some of them documents were signed by the parties; thus, in respect of counts 1 and 3 incidents there was a clause to the effect that the "People to People" organisation did not guarantee to refund deposits if withdrawals were made later than a certain date; and in respect of counts 6, 7 and 8 the accused wrote promising a full refund" after the flights paid for failed to materialise. But neither in those nor in the remaining two cases (in relation to which there was no documentary evidence of any kind) was there, in our judgment, such a special arrangement as would give rise to an "obligation" within section 5(3).
It follows from this that, despite what on any view must be condemned as scandalous conduct by the accused, in our judgment upon this ground alone this appeal must be allowed and the convictions quashed. But as, to the best of our knowledge, this is one of the earliest cases involving section 5(3), we venture to add some observations:
(A) Although in R. v. Pulham section 5(3) was not referred to and the case turned on section 2(1)(b) of the Act, it is equally essential for the purposes of the former provision that dishonesty should be present at the time or appropriation. We are alive to the fact that to establish this could present great (and may be insuperable) difficulties when sums are on different dates drawn from a general account. Nevertheless, they must be overcome if the Crown is to succeed.
(B) Where the case turns, wholly or in part, on section 5(3) a careful exposition of the subsection is called for. Although it was canvassed by counsel in the present case, it was nowhere quoted or even paraphrased by the learned Commissioner in his summing-up. Instead he unfortunately ignored it and proceeded upon the assumption that, as the accused acknowledged the purpose for which clients had paid him money, ipso facto there arose an "obligation … to retain and deal with" it for that purpose. He therefore told the jury "The sole issue to be determined in each count is...
To continue reading
Request your trial- R v Dubar
-
R. v. Hawkins (K.R.) and Morin (C.), (1996) 96 O.A.C. 81 (SCC)
...405; 169 E.R. 782 (C.C.A.), refd to. [para. 60]. R. v. Lee (1864), 4 F. & F. 63; 176 E.R. 468, refd to. [para. 60]. R. v. Hall, [1973] 1 Q.B. 496 (C.A.), refd to. [para. 60]. Walkertown (Town) v. Erdman (1894), 23 S.C.R. 352, refd to. [para. 61]. R. v. Scaife (1851), 2 Den. 281; 169 E.R......
-
R. v. Hawkins (K.R.) and Morin (C.), (1996) 204 N.R. 241 (SCC)
...405; 169 E.R. 782 (C.C.A.), refd to. [para. 60]. R. v. Lee (1864), 4 F. & F. 63; 176 E.R. 468, refd to. [para. 60]. R. v. Hall, [1973] 1 Q.B. 496 (C.A.), refd to. [para. 60]. Walkertown (Town) v. Erdman (1894), 23 S.C.R. 352, refd to. [para. 61]. R. v. Scaife (1851), 2 Den. 281; 169 E.R......
-
R. v. Hawkins, [1996] 3 SCR 1043
...3, 110 E.R. 1108; R. v. Beeston (1854), Dears. 405, 169 E.R. 782; R. v. Lee (1864) 4 F. & F. 63, 176 E.R. 468; R. v. Hall (P.B.), [1973] 1 Q.B. 496; Walkertown (Town) v. Erdman (1894), 23 S.C.R. 352; R. v. Scaife (1851), 2 Den. 281, 169 E.R. 505; R. v. U. (F.J.), [1995] 3 S.C.R. 764; R.......
-
Court of Appeal
...found to exist,could only exist (as they had been instructed) if the appellant knew itexisted. In view of the decisions in R v Hall (1972) 56 Cr App R 547, R vHayes (1977) 64 Cr App R 824 and R v Mainwaring and Madders (1982)74 Cr App R 99, the judge was correct in leaving this issue to the......
-
Taking possession: the defining element of theft?
...J). (143) DPP v Huskinson (1988) 20 HLR 562, 564 (Stuart-Smith LJ); R v Gilks [1972] 3 All ER 280, 283 (Cairns LJ). See also R v Hall [1973] QB 126, 132 (Edmund-Davies LJ for Edmund-Davies and Stephenson LJJ and Boreham J); Wakeman v Farrar (Unreported, High Court of Justice, Queen's Bench ......