R v Lambie
| Jurisdiction | England & Wales |
| Judge | Lord Diplock,Lord Fraser of Tullybelton,Lord Russell of Killowen,Lord Keith of Kinkel,Lord Roskill |
| Judgment Date | 25 June 1981 |
| Judgment citation (vLex) | [1981] UKHL J0625-3 |
| Date | 25 June 1981 |
| Court | House of Lords |
[1981] UKHL J0625-3
House of Lords
Lord Diplock
Lord Fraser of Tullybelton
Lord Russell of Killowen
Lord Keith of Kinkel
Lord Roskill
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Roskill. I agree with it and would allow the appeal.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Roskill. I agree with it and for the reasons stated therein I would answer the certified question in the negative and allow this appeal.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Roskill. I agree with it and that this appeal should be allowed.
My Lords,
For the reasons given in the speech of my noble and learned friend, Lord Roskill, which I have had the opportunity of reading in draft and with which I entirely agree, I too would allow the appeal.
My Lords,
On the 20th April 1977 the respondent was issued by Barclays Bank Limited ("the bank") with a Barclaycard ("the card"). That card was what today is commonly known as a credit card. It was issued subject to the Barclaycard current conditions of use, and it was an express condition of its issue that it should be used only within the respondent's credit limit. That credit limit was £200 as the respondent well knew, since that figure had been notified to her in writing when the card was issued. The then current conditions of use included an undertaking by the respondent, as its holder, to return the card to the bank on request. No complaint was, or indeed could be, made of the respondent's use of the card until the 18th November 1977. Between that date and the 5th December 1977 she used the card for at least twenty-four separate transactions, thereby incurring a debt of some £533. The bank became aware of this debt and thereupon sought to recover the card. On the 6th December 1977 the respondent agreed to return the card on the 7th December 1977. She did not, however, do so. By the 15th December 1977 she had used the card for at least forty-three further transactions, incurring a total debt to the bank of £1005.26.
My Lords, on the 15th December 1977 the respondent entered into the transaction out of which this appeal arises. She visited a Mothercare shop in Luton. She produced the card to a departmental manager at Mothercare named Miss Rounding. She selected goods worth £10.35. Miss Rounding completed the voucher, checked that the card was current in date, that it was not on the current stop list and that the respondent's signature on the voucher corresponded with her signature on the card. Thereupon, the respondent took away the goods which she had selected. In due course, Mothercare sent the voucher to the bank and were paid £10.35 less the appropriate commission charged by the bank. On the 19th December 1977 the respondent returned the card to the bank.
My Lords, at her trial at Bedford Crown Court, on the 1st and 2nd August 1979, before His Honour Judge Counsell and a jury, the respondent faced two charges of obtaining a pecuniary advantage by deception contrary to section 16(1) of the Theft Act 1968. These were specimen charges. The first related to an alleged offence on the 5th December 1977, and the second to the events which took place at the Mothercare shop at Luton which I have just related. The particulars of each charge were that she dishonestly obtained for herself a pecuniary advantage "namely, the evasion of a debt for which she then made herself liable by deception, namely, by false representations that she was authorised to use a Barclaycard … to obtain goods to the value of £10.35".
The jury acquitted the respondent on the first charge. She was, however, convicted upon the second. The evidence of dishonesty in relation to the Mothercare transaction which was the subject of the second charge was overwhelming, and before your Lordships' House learned counsel for the respondent did not seek to suggest otherwise. Presumably the acquittal on the first count was because the jury were not certain that at the earlier date, 5th December 1977, the respondent was acting dishonestly.
My Lords, during the hearing in this House your Lordships enquired of counsel for the appellant prosecutor why no count of obtaining property by deception on the 15th December 1977 contrary to section 15 of the Theft Act 1968 had been included in the indictment. Your Lordships were told that such a charge had indeed been preferred at the magistrates' court during the committal proceedings, but had been rejected by the magistrates upon a submission made on behalf of the respondent during those proceedings. My Lords, if this be so, I find it difficult to see upon what basis such a submission could properly have succeeded, or what defence there could have been had such a charge been the subject of a further count in the indictment once the jury were convinced, as they were, of the respondent's dishonesty on the 15th December 1977. Had that course been taken, the complications which in due course led to the Court of Appeal (Criminal Division) quashing the conviction on the second count, and consequently, to the prosecutor's appeal to this House, with your Lordships' leave, following the grant of a certificate by the Court of Appeal (Criminal Division), would all have been avoided. But the course of adding a count charging an offence against section 15 of the Theft Act 1968 was not followed, and accordingly your Lordships have now to determine whether the Court of Appeal (Criminal Division) was correct in quashing the conviction on the second count. If it was, then as that court recognised in the concluding paragraph of its judgment, a gateway to successful fraud has been opened for the benefit of the dishonest who in circumstances such as the present cannot be proceeded against and punished at least for offences against section 16 of the Theft Act 1968.
My Lords, the committal prceedings were what is sometimes called "old fashioned", that is to say, that advantage was not taken of section 1 of the Criminal Justice Act 1967. Witnesses were called in the magistrates' court and cross-examined. These witnesses included Miss Rounding, the departmental manager. Your Lordships were shown a copy of her deposition. Miss Rounding was not called at the trial at Bedford Crown Court. Her deposition was read to the jury. It emerged from her evidence,and other evidence given or read, that, as one would expect, there was an agreement between Mothercare and the bank. That agreement does not appear to have been properly proved at the trial, but by consent, your Lordships were given a pro forma copy of what is known as a "merchant member agreement" between the bank and its customer, setting out the conditions upon which the customer will accept and the bank will honour credit cards such as Barclaycards.
My Lords, at the close of the case for the prosecution, learned counsel for the respondent invited the learned judge to withdraw both counts from the jury on, it seems, from reading the learned judge's clear ruling upon this submission, two grounds, first, that as a matter of law there was no evidence from which a jury might properly draw the inference that the presentation of the card in the circumstances I have described was a representation by the respondent that she...
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