R v Hinks (Karen Maria)
| Jurisdiction | England & Wales |
| Judge | LORD SLYNN OF HADLEY,LORD JAUNCEY OF TULLICHETTLE,LORD STEYN,LORD HUTTON,LORD HOBHOUSE OF WOODBOROUGH |
| Judgment Date | 26 October 2000 |
| Judgment citation (vLex) | [2000] UKHL J1026-2 |
| Date | 26 October 2000 |
| Court | House of Lords |
[2000] UKHL J1026-2
HOUSE OF LORDS
Lord Slynn of Hadley
Lord Jauncey of Tullichettle
Lord Steyn
Lord Hutton
Lord Hobhouse of Wood-borough
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Steyn. For the reasons he gives I would dismiss the appeal. I do not consider it right in this case to depart from decisions of the House in Reg. v. Lawrence [1972] A.C. 626 and Reg. v. Gomez [1993] A.C. 442. Nor do I think it appropriate for the House to review the judge's summing up on dishonesty in this case but not doing so is not to be read as an approval of it.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Steyn. For the reasons which he has given, I too, would dismiss the appeal.
My Lords,
1.
Since the enactment of the Theft Act 1968 the House of Lords has on three occasions considered the meaning of the word "appropriates" in section 1(1) of the Act, namely in Reg. v. Lawrence [1972] A.C. 626; in Reg. v. Morris [1984] A.C. 320; and in Reg. v. Gomez [1993] A.C. 442. The law as explained in Lawrence and Gomez, and applied by the Court of Appeal in the present case ( Regina v. Hinks [2000] 2 Cr. App. Rep. 1) has attracted strong criticism from distinguished academic lawyers: see for example, J.C. Smith, [1993] Crim. L.R. 304 and [1998] Crim. L. R. 904; Edward Griew, The Theft Acts, 7th ed., (1995) 41-59; A.T.H. Smith, "Gifts and the Law of Theft," 1999 C.L.J. 10. These views have however been challenged by equally distinguished academic writers: Glazebrook, 1993 C.L.J. 191-194; Gardner, Property and Theft, [1998] Crim. L.R. The academic criticism of Gomez provided in substantial measure the springboard for the present appeal. The certified question before the House is as follows:
Whether the acquisition of an indefeasible title to property is capable of amounting to an appropriation of property belonging to another for the purposes of section 1(1) of the Theft Act 1968.
In other words, the question is whether a person can "appropriate" property belonging to another where the other person makes him an indefeasible gift of property, retaining no proprietary interest or any right to resume or recover any proprietary interest in the property.
Before the enactment of the Theft Act 1968 English law required a taking and carrying away of the property as the actus reus of the offence. In 1968 Parliament chose to broaden the reach of the law of theft by requiring merely an appropriation. The relevant sections of the Act of 1968 are as follows:
"1. Basic definition of theft
(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.
2. 'Dishonestly'
(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, on behalf of himself or of a third person; or (b) if he appropriates the property in the belief that he would have the other's consent if the other knew of the appropriation and the circumstances of it; or (c) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.
3. 'Appropriates'
(1)
Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner."
These provisions, and in particular the word "appropriates" in section 1(1), read with the explanatory provision in section 3(1), have been authoritatively interpreted by the House in Lawrence [1972] A.C. 626 and Gomez [1993] A.C. 442. It will be a matter for consideration whether such earlier rulings are dispositive of the question of law before the House. In the meantime, it is necessary to give a narrative of the background and the proceedings below.
II.
In 1996 the appellant was 38 years old. She was the mother of a young son. She was friendly with a 53 year old man, John Dolphin. He was a man of limited intelligence. The appellant described herself as the main carer for John Dolphin. It is not in dispute that in the period April to November 1996 Mr. Dolphin withdrew sums totalling around £60,000 from his building society account and that these sums were deposited in the appellant's account. During the summer of that year Mr. Dolphin made withdrawals of the maximum permissible sum of £300 almost every day. Towards the end of this period Mr. Dolphin had lost most of his savings and moneys inherited from his father. In 1997 the appellant was charged with six counts of theft, five counts covering moneys withdrawn and one count a television set transferred by Mr. Dolphin to the appellant. In November 1977 the appellant stood trial on these counts in the Wolverhampton County Court before Judge Warner and a jury. It was the prosecution case that the appellant had influenced and coerced Mr. Dolphin to withdraw the moneys from his building society account, which were then deposited in her account. A substantial volume of evidence was led during the trial which lasted five days. A police analyst produced documents summarising the flow of funds from Mr. Dolphin's account to that of the appellant. Building society employees testified about the daily visits by the appellant and Mr. Dolphin to effect withdrawals. The thrust of their evidence was that the appellant did most of the talking and would interrupt Mr. Dolphin if he tried to say something. Dr. Fuller, a consultant psychiatrist, assessed Mr. Dolphin's I.Q. as in the range between 70 to 80 (the average being 90 to 110). He said that Mr. Dolphin was able to live a normal if undemanding life. Mr. Dolphin had worked as a packer in a dairy for some 30 years. Dr. Fuller described him as naive and trusting and having no idea of the value of his assets or the ability to calculate their value. Dr. Fuller accepted that Mr. Dolphin would be capable of making a gift and understood the concept of ownership. He thought that Mr. Dolphin was capable of making the decision to divest himself of money, but that it was unlikely that he could make the decision alone. Two police officers testified that after cautioning the appellant she denied "having any money" from Mr. Dolphin except for a single cheque which she said represented a loan. In a nutshell the prosecution case was that the appellant had taken Mr. Dolphin for as much as she could get.
The defence made a submission that in law there was no case to answer. The defence argument was that the moneys were a gift from Mr. Dolphin to the appellant, that the title in the moneys had passed to the appellant, and that there could therefore be no theft. The defence cited the writings of Professor Sir John Smith, Q.C. The judge rejected the submission and held that a gift was capable of amounting to an appropriation.
The appellant gave evidence. She did not dispute the fact of the withdrawal of moneys from the appellant's account and the deposit of the sums in her account. She admitted that she had accepted Mr. Dolphin's television set. She said that Mr. Dolphin had handed the moneys, as well as the colour television set, as gifts to her or her young son or as part of a loan. She denied the account of what she allegedly said to the police officers. She asserted that she had acted honestly throughout.
The judge then summed up to the jury. His direction on appropriation was as follows:
"The second ingredient is appropriates, dishonestly appropriates. You must be sure on any count that the property referred to in that count passed from Mr. Dolphin to Miss Hinks so that she acquired it and treated it as her own to deal with. That can include, obviously, members of the jury, a straightforward taking or transfer of the property concerned. It can also include acquiring it by way of gift, either for herself or on behalf of her young son."
He directed the jury on dishonesty as follows:
"I am now going to move on to deal with that word that I mentioned at first, that very important word, dishonestly, because, as I have said, it's one of the central questions that you've got to decide, whether or not this defendant acted dishonestly. And, of course, it's entirely a matter for you, as the jury to decide. But please bear in mind the fact that if you don't like something that the defendant did, or the mere fact that you don't approve of it, or the mere fact that she did something that you think was morally reprehensible does not necessarily mean that it is dishonest. For the prosecution to make you sure that she's dishonest, they've got to make you sure of two things. They've got to make you sure that what she did was dishonest by the standards of ordinary and decent people. Now, in this regard, members of the jury, you must form your own judgment of what those standards are. That's why we have a jury here. And if it was not dishonest by those standards, then the prosecution fails. That would be an end of the matter. But if it was dishonest by those standards, then you have to decide and be sure that the defendant herself must have realised that what she was doing was dishonest by the standards of ordinary and decent people. And in order to decide this question, you must consider...
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