R v Kassim
| Jurisdiction | England & Wales |
| Judge | Lord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Ackner |
| Judgment Date | 19 July 1991 |
| Judgment citation (vLex) | [1991] UKHL J0718-1 |
| Date | 19 July 1991 |
| Court | House of Lords |
[1991] UKHL J0718-1
House of Lords
Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord Ackner
Lord Jauncey of Tullichettle
Lord Lowry
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Ackner. I agree with it and for the reasons he gives I would allow the appeal and answer the certified question in the negative.
My Lords,
For the reasons given in the speech of my noble and learned friend, Lord Ackner, I would answer the certified question in the negative and quash the convictions on those counts in the indictment which are the subject matter of this appeal.
My Lords,
The issue raised by this appeal is the true construction of the word "execution" in section 20(2) of the Theft Act 1968.
Section 20 in its entirety reads as follows:
" Suppression, etc. of documents
(1) A person who dishonestly, with a view to gain for himself or another or with intent to cause loss to another, destroys, defaces or conceals any valuable security, any will or other testamentary document or any original document of or belonging to, or filed or deposited in, any court of justice or any government department shall on conviction on indictment be liable to imprisonment for a term not exceeding seven years.
(2) A person who dishonestly, with a view to gain for himself or another or with intent to cause loss to another, by any deception procures the execution of a valuable security shall on conviction on indictment be liable to imprisonment for a term not exceeding seven years; and this subsection shall apply in relation to the making, acceptance, indorsement, alteration, cancellation or destruction in whole or in part of a valuable security, and in relation to the signing or sealing of any paper or other material in order that it may be made or converted into, or used or dealt with as, a valuable security, as if that were the execution of a valuable security.
(3) For purposes of this section "deception" has the same meaning as in section 15 of this Act, and "valuable security" means any document creating, transferring, surrendering or releasing any right to, in or over property, or authorising the payment of money or delivery of any property, or evidencing the creation, transfer, surrender or release of any such right, or the payment of money or delivery of any property, or the satisfaction of any obligation."
The appellant's contention is that the word "execution" in section 20(2) means doing something to the face of a document, such as the signing of a document, or the due performance of all formalities necessary to give validity to the document; and that all the activities comprehended in the extended meaning also includes doing something to the document itself. The Crown's contention is that "execution" in addition to these meanings also means giving effect to or carrying out the terms of the document and therefore includes the payment out of the value of the valuable security in question
On 26 November 1986 in the Crown Court at Southwark the appellant was convicted on all counts of a 21 count indictment and was sentenced to four years' imprisonment. Counts 1, 3, 5, 7, 9, 11, 13, 15 and 17 alleged obtaining property by deception, contrary to section 15 of the Theft Act 1968, the particulars being that the appellant had in each case dishonestly obtained from Lloyds Bank a cheque book by falsely representing that he was one Michael Scott with an address at 10 Sandringham Road, London E8 and, in effect, that he intended to conduct an account with Lloyds Bank in the ordinary manner.
The corresponding even numbered counts, namely, 2, 4, 6, 8, 10, 12, 14, 16 and 18, each charged the appellant with procuring the execution of a valuable security by deception contrary to section 20(2) of the Theft Act 1968. The particulars to count 2 alleged that the appellant:
"dishonestly, with a view to gain for himself or another, or with intent to cause loss to another, procured the execution by Lloyds Bank plc of a certain valuable security, namely, a cheque No. 023543, in the sum of £50 by deception, namely, by false representations that he was one Michael Scott, his address was 10 Sandringham Road, London E8 2LR, that he was able and intended to conduct a current account in accordance with any agreement made with that bank, and that he was able and intended to pay any debt to that bank which he incurred by reason of the conduct of that account."
This was a specimen count concerning the use of the cheque book allegedly obtained by deception as laid in count 1.
The remaining even numbered counts similarly charged procuring the execution of a valuable security by deception contrary to section 20(2), each again being a specimen charge in relation to the use by the appellant of the other 8 cheque books. Counts 19 and 20 charged obtaining property by deception, these counts being related to withdrawals made by the appellant by means of two Cashpoint cards. Count 21 charged procuring the execution of a valuable security by deception, the valuable security being an Access voucher in the sum of £450.
The case for the Crown was that during the months of January-March 1986 a number of bank accounts were opened with Lloyds Bank, and a Lloyds Bank Access card was issued, all in the name of Michael Scott of 10 Sandringham Road, London E.8. It was only shortly after the appellant was arrested on 19 April 1986 that these accounts gave rise to concern after a large number of cheques drawn on the account were presented through the clearing system and a large number of withdrawals were processed. All the cheques and withdrawals represented transactions made in the space of one week prior to the date of the appellant's arrest. Over the same period a large number of transactions were carried out using the Access card. By April 1986 the accounts in the name of Michael Scott were overdrawn by a total of £8,338 and there was an outstanding balance on the Access card of £943.
The prosecution alleged that the appellant was the person who opened the accounts and obtained the Access card under a false name and address and that it was he who had carried out the various transactions laid in the indictment. The evidence was that the cashier at a Bureau de Change near Victoria Station became suspicious when the appellant attempted to cash one of the relevant cheques and produced a cheque guarantee card in the name of "M. Scott". The police were telephoned and the appellant was arrested. In his possession were 4 Lloyds Bank cheque books, an Access card and a Eurocheque card all in the name of M. Scott. He also produced a rent book giving the address of 10 Sandringham Road, London E.8. and showing Mr. Scott as the name of the tenant. Subsequent investigation showed that the appellant had no connection with 10 Sandringham Road, and after much prevarication and one attempt to escape from police custody, the appellant admitted his true name and his real address which was in West Ferry Road, London E.14. On searching that address there was found a number of Access vouchers and statements relating to the Access card in the name of M. Scott, also cheque counterfoils in the same name.
The appellant did not give evidence but, through his counsel, asserted that the entire case was a "frame-up" by the police who had chosen the appellant as a victim, being someone who had previously been convicted of offences very similar to those presently charged, and that the police, together with an immigration officer, had conspired to pervert the course of justice by "pinning" unsolved bank and credit card frauds on him.
At the trial the sole issue was whether the person who had conducted the fraudulent activities in question was the appellant or some other person. The issue as to the true construction of the word "execution" in section 20(2) was not raised until the notice of appeal, as settled by counsel, was filed. Leave to appeal was granted only against the convictions on the even numbered counts 2-18 and on count 21.
On 12 February 1988, the Court of Appeal (Criminal Division), while acknowledging the attraction and force of the argument advanced by Mr. Rowe Q.C. on behalf of the appellant, dismissed the appeal in the light of two previous decisions of that Court viz R. v. Beck (Brian) [1985] 1 W.L.R. 22 and R. v. Nanayakkara and others [1987] 1 W.L.R. 265. The Court certified the following point of law to be of general public importance:
"Is there an 'execution' of a valuable security, within the meaning of section 20(2) of the Theft Act 1968, when a bank upon which a cheque is drawn, or a credit card company which receives a credit voucher as a result of a credit transaction, gives effect to it by paying it?"
In anticipation that leave to appeal might be given by your Lordships' House (it was in fact given on 13 February 1989) the Court recommended that when the Crown has evidence to prove an offence under section 15 of the Act and when no problem as to jurisdiction arises, charges should be brought under section 15 (obtaining property by deception) and not under section 20(2).
The Statute of 1757, 30 Geo. II c.24 first created the offence of obtaining money or goods by false pretences but it did create the offence of dishonestly procuring the execution of a valuable security.
The case of R. v. Danger (1857) 7 Cox C.C. 303 revealed this hiatus in the criminal law and the need to make a criminal offence of the fraudulent obtaining of a drawee's acceptance of a bill drawn upon him. In that case the defendant was held not guilty of obtaining a valuable security by false pretences...
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