R v Hartley

On the 9th March of this year at Inner London Sessions before a Deputy Chairman the Appellant was convicted of being a bankrupt obtaining credit in excess of £10 on two counts. He was thereupon sentenced to twelve months' imprisonment on each count concurrent. In addition so much of two suspended sentences as totalled six months' imprisonment was ordered to take effect consecutively. The result was that as from the 9th March, 1971 the order of the Court was that he was to undergo eighteen months' imprisonment in all.

The Appellant now appeals against conviction by leave of the single Judge, his application for leave to appeal against sentence having lapsed.

The Appellant is a man of some 60 years of age of obviously good intelligence and someone who has been a member of the Stock Exchange for some seven years, 1954 to 1961. There is no dispute but that the Appellant was adjudged bankrupt in January 1963 and that he had never obtained a discharge from the bank-ruptcy. There was also no dispute as regards either count but that the Appellant at no time disclosed to the persons involved that he was such an undischarged bankrupt.

The first of these two counts related to an obtaining of credit from Lloyds Bank Limited which was alleged to be a credit to the extent of £451 and to have been obtained on or about the 27th October, 1969. That sum was the total amount of the overdraft at the bank as it stood in their accounts on the stated date: it had gradually been built up between May 1969 (shortly after he opened the account) and the 27th October. The bulk of the cheques issued by the Appellant and met by the bank were for sums under £10, though some exceeded £10.

As regards that count, the Appellant at trial put forward a defence which was negatived by the Jury and which has not been pursued in this Court. That defence was to the effect that Lloyds Bank had agreed that they were to look for payment of any overdraft not to the Appellant but to his employers, the Lafarge Cement Co. Ltd. No document of any sort was produced from Lafarge Cement Co. Ltd. and there is no need to refer to that defence again.

Next it is convenient to refer to the second count and its constituent parts. That count was laid "… being an undischarged bankrupt, you obtained credit to the extent of £451 13s. 9d without informing the said Bank that you were then an undischarged bankrupt".

The facts which gave rise to this count were that the Appellant obtained from Artillery Mansions Ltd. a tenancy of a furnished room at 8 guineas a week undertaking also to pay for electricity and telephone charges, and to be responsible for certain dilapidations. In respect of the potential liabilities for electricity, telephone and dilapidations he paid a deposit of £10. That tenancy commenced on the 4th April, 1969, but by October 1969 the Appellant had fallen into substantial arrears. On the 31st December, 1969 he was served with a formal notice to quit on the 30th January, 1970 and eventually vacated the room on the 25th March, 1970. As from the 30th January, 1970 his liability in respect of that room was thus for mesneprofits and not for rent.

The arrears of rent by the 30th January, 1970 were such that on the 12th March, leaving out any question of mesne profits and giving all appropriate credits, he was in arrears to the extent of £63 17s. 4d. About the 18th March he paid a sum of £50: so on the date referred to in the indictment, the 27th March, his liability was for £13 17s. 4d., again leaving out the question of mesneprofits, which by then amounted to £76 4s. Od.

Those being in essence the facts, it is convenient now to turn to the grounds of appeal. As regards the Lloyds Bank count, two points were taken: first, that having regard to the terms of Section 155(a) of the Bankruptcy Act, 1914 it was wrong of the learned Deputy Chairman to direct the Jury to take into account the aggregate of the sums for which the cheques were drawn, and that the proper course was to look at each cheque separately. In other words, his contention was there can be no aggregation.

His second point was that the indictment bore the wrong date in the particulars - the reference to "on or about the 27th October" was said to be inaccurate and fatal. For that purpose Mr. Mullick referred to the details of the account and endeavoured to show that the last of the relevant cheques drawn had been presented somewhere in the region of the 10th October and that on that date the sum of the overdraft was slightly less than the £451 mentioned in the indictment.

As regards the second count, the contentions for the Appellant were these: firstly, that mesne profits cannot be the subject...