R v Hilton (Peter Arnold)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE EVANS |
| Judgment Date | 18 April 1997 |
| Judgment citation (vLex) | [1997] EWCA Crim J0307-15 |
| Docket Number | 96/6490/Y5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 18 April 1997 |
[1997] EWCA Crim J0307-15
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Evans
Mr Justice Clarke
and
The Recorder of Leeds
His Honour Judge Brian Walsh QC
(Acting as a Judge of the CACD)
96/6490/Y5
MR P CATTAN (MR M MAHER 7/3/97) appeared on behalf of the Appellant
MR J WISHART appeared on behalf of the Crown
The appellant is Peter Arnold Hilton. He was convicted on 23 July 1996 after trial in the Crown Court at Bolton before His Honour Judge Lakin and a jury on three counts of a six-count indictment. Each count was a charge of theft, and for Counts 4, to 6 on which he was convicted he was sentenced to two years imprisonment, concurrent in respect of each count.
He now appeals against conviction by leave of the single judge. During the trial the House of Lords gave judgment in Preddy (now reported at [1996] A.C. 815). That decision related to charges of obtaining property by deception, brought under section 15(1) of the Theft Act 1968, and no such charges were made here. The issue raised by this appeal is whether the reasoning in Preddy affects the validity of the conviction of the appellant on the charges of theft.
The appellant was chairman of the Abbeyfield (Worsley) Society, which effectively is a local branch of a national charitable organisation which provides residential care. The Society had its bank account with Barclays and at all material times there was a credit balance on the account. The appellant and three others were designated signatories for transfers out of the account, and two such signatures were required.
In common parlance, the appellant stole three sums of money from this account. He caused £ 25000 to be transferred to an account held by the Royal Bank of Scotland for Eversheds, the firm of solicitors who in this transaction were acting for the R.B.S. itself. Instructions for this transfer to be made were given by a letter which the appellant faxed to Barclays signed only by himself. The lack of a further signature meant that the instruction was not one upon which the bank was obliged or even entitled to act, but nevertheless the transfer was made.
The second transaction involved the transfer of £4000 to the Trustee Savings Bank for the credit of an account in the name of a company called Oaktree Corporation. The instruction was again given by fax, and on this occasion the letter was signed by the appellant and by an authorised co-signatory also. She said in evidence that the appellant had told her that the funds were for the use of the Society in some way. Oaktree Corporation was an off-the-shelf company of which the appellant's wife was at that time the company secretary.
The third transfer out of the Society's account was by virtue of a cheque for £1500 in favour of a plant hire company called Academy Leasing, with which the appellant had done business. That company presented the cheque to its own bank, also Barclays, who then collected payment from the Society's account in the usual way.
Each of these payments was made in order to settle personal obligations of the appellant. His financial situation was in a desperate state. He owed the Royal Bank of Scotland more than £125000. They instructed Eversheds to recover this amount, and a bankruptcy notice was issued. They agreed to accept £ 25000 in settlement, and the first transfer was made in order to discharge his undertaking to pay them that amount. His defence was that the payment was made in order to preserve for the Society the right to acquire his own home for conversion into a further residential home which the Society could operate, but the jury by their verdict rejected this explanation and were satisfied that the appellant was dishonest.
Similarly, the second and third transfers were made in order to settle personal obligations. The appellant said that the payments represented obligations of the Society rather than himself, but this too was rejected.
The appellant was charged with theft of these three amounts, in Counts 4, 5 and 6 of the indictment. Originally, and at the outset of the trial in July 1996 the particulars of offence referred simply to the sum of money involved, so that Count 4 alleged that he "stole £ 25000 belonging to Abbeyfield (Worsley) Society Ltd." This was amended to read "stole a credit balance of £25000", with corresponding amendments to Counts 5 and 6, in recognition of the fact that the House of Lords' judgment in Preddy emphasised the need to identify the chose in action, meaning the debt owed by the bank to the Society and represented by the current account, as the property which was alleged to have been stolen.
The trial proceeded on this basis and in the course of his summing-up the judge gave what could be regarded as a model direction as to the issues of law which were involved. He said this:—
"If you have a bank account, members of the jury, you have the right to withdraw from that account the amount in that account or up to the level of any agreed overdraft ….. That right, members of the jury, to withdraw funds from a bank account is regarded, in law, as property ….. ".
Dealing with the offence of theft, he said that the prosecution first had to prove that what the defendants stole was property belonging to another. The defendant admitted that there was a credit balance which covered the amounts in question, and there was no dispute that the credit balance belonged to the Society. He continued:—
"The prosecution also have to prove that the defendant appropriated that credit balance. That means that he took the credit balance for his own use. Again, members of the jury, there is no dispute about that. If you draw a cheque on a bank account and you present that cheque for payment, by doing that you are taking the credit balance referred to in the cheque for your own use."
Finally, he said that the defendant did not dispute (except as regards count 4) that it was his intention that the Society should permanently lose the credit balance in question. So, as regards the charges of theft, "The prosecution, with the defendant's agreement, …. are over all of the hurdles to prove an allegation of theft bar one and that is the fundamental one of dishonesty because the prosecution must prove that when the defendant took that credit balance for his own use he did so dishonestly".
Those directions were given in relation to Counts 1, 2 and 3, of which the appellant was acquitted, but they applied also to Counts 4–6 though with some additional issues that were raised. First, the transfers under Counts 4 and 5 were brought about by the defendant sending a faxed letter to the bank requesting that the transfer be made. The judge said this:—
"….. just as drawing a cheque on an account and presenting it for payment amounts to an appropriation—taking the credit balance for you own use—so does the sending of a faxed instruction to the bank to make a transfer. In reality, there is no difference. In practical terms, there is no difference."
As regards Count 4, two further questions arose. First, the faxed letter was not signed by a co-signatory, as was required by the terms of the Society's mandate to its bank, and secondly, the appellant disputed that he had the intention of permanently depriving the Society of the sum of £ 25000, which he said he intended to return to the Society together with a higher rate of interest than the Society was obtaining from its bank.
Appeal
We now come to the appeal against conviction. The Single Judge gave leave on 13 December, when he also granted the appellant bail pending the hearing of the appeal. Mr Cattan, counsel for the appellant, advised on 2 August 1996 that in his view, after reading the published report of Preddy in [1996] 3 E.L.R. 481, the convictions under the Amended Indictment could not be challenged as a matter of law, but presciently he added "I do not feel that as the law stands the Indictment was defective but would reserve my position in the event of another case coming before the Court of Appeal that casts any doubt on the point so far as theft is concerned".
Such a case was R. v. Graham, Ali and others where the Court, presided over by The Lord Chief Justice, dealt with a number of problems that were left in the wake of the Preddy decision. One of the appellants, Ali, had been convicted of attempted theft in circumstances where he presented to the head office of the National Bank of Pakistan four banker's drafts each for £250000 drawn on the National Westminster Bank. These drafts had gone missing from N.W.B. and the purported signatures on behalf of N.W.B. were both forged. As in the present case, the original Indictment charged Ali and his co-defendant simply with attempting to steal "One million pounds belonging to National Westminster Bank plc", but this was amended by the insertion of the words "a credit of" before the figure of one million pounds. The judgment refers to the state of evidence as follows:—
"No evidence was called by the prosecution as to the mechanism by which the draft would have been dealt with if it had been valid. No evidence was called as to the existence or identity of any account which held a credit balance which could have been appropriated."
Asking "Is the conviction safe?", the Court held:—
"The conviction of attempting to steal "a credit of £1000000 belonging to" N.W.B. cannot stand in the light of Preddy. The reasoning in Preddy demonstrates why the reference to "a credit of £1000000 belonging to" N.W.B. does not identify "property belonging to another". The appellant could not in law be guilty of the offence charged on the...
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