R v Miller (Simon)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSKILL |
| Judgment Date | 29 April 1977 |
| Judgment citation (vLex) | [1977] EWCA Crim J0429-9 |
| Docket Number | No. 4007/A/76 |
| Court | Court of Appeal (Criminal Division) |
| Date | 29 April 1977 |
[1977] EWCA Crim J0429-9
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Roskill
Lord Justice Scarman
and
Mr. Justice Griffiths
No. 4007/A/76
MR. J. BAILEY appeared on behalf of the Appellant.
MR. J. JACKSON appeared on behalf of the Crown.
This is an appeal on a point of law by Simon Miller, who appeared at Manchester Crown Court before His Honour Judge Franks on 13th July 1976. He pleaded guilty, after preliminary argument on a point of law, to two counts of obtaining property by deception and to one count – and this is what matters for the purposes of this appeal – of obtaining credit whilst a bankrupt, contrary to section 155 of the Bankruptcy Act 1914.
The learned Judge had the advantage of a careful argument from Mr. Jackson for the Crown and Mr. Bailey for the appellant, whether or not the relevant count in the indictment disclosed the offence alleged. The learned Judge, at the end of the submissions, ruled that it did. Of course here we are concerned only with the count of obtaining credit whilst an undischarged bankrupt. Thereupon properly and under advice, Miller pleaded guilty to all the offences.
The details of the indictment will be found at pages 35 onwards of the transcript. The relevant counts as they appeared in the indictment before the trial Court were the fourth, which was one of obtaining property by deception, the fifth, which was also of obtaining property by deception and the ninth, which is on page 37, and which, as put by the Clerk of the Court reads: "The particulars of the offence are that, on the 2nd day of May, 1974, being an undischarged bankrupt, you obtained credit to the amount of £115 from Barcross Finance Limited without informing the said company that you were an undischarged bankrupt." To that, as I have said, under advice and having regard to the learned Judge's ruling on the point of law, Miller pleaded guilty.
The facts fall within a very small compass. In July 1973 Miller had entered into a hire purchase agreement with that finance company in respect of a Mercedes motor car. He paid the instalments properly and regularly until January 1974. He then traded in the Mercedes for a large Jaguar, worth a good deal of money. To that end he entered into a new hire purchase agreement with the same company under which he was to pay £115 by 24 monthly instalments. At no time did the appellant ever disclose that he was an undischarged bankrupt.
Under what I will call the second agreement, he made two payments, one on 1st March and the other on 1st April 1974. But when the time for the next instalment of £115 arrived on 1st May, he defaulted, and the car was later repossessed by the finance company. He did not, when he failed to pay, disclose that he was an undischarged bankrupt and he did not ask for time to pay. Those are, in their naked simplicity, the facts which gave rise to the ninth count in this indictment.
It was alleged that he had, on those facts, at the moment of default on 1st May, obtained credit without disclosing that he was an undischarged bankrupt. The question we have to decide is whether that is correct and whether the learned Judge was right in ruling that those facts disclosed an offence under section 155 of the Bankruptcy Act 1914.
The argument advanced by Mr. Jackson which appealed to the learned Judge was this. The offence is one of obtaining credit and is – and this is common ground – what is known as an absolute offence, that is to say no question of mens rea is relevant. On the 1st May there was a sum due. The debtor thereupon defaulted. It is said that by virtue of that default the creditor thereupon gave credit, and because the creditor as it were compulsorily gave credit because of the default, the debtor obtained credit, whether or not he actually sought credit and whether or not the creditor ever intended to give him the credit which he is alleged thus to have obtained.
The point is a novel one and if I may say so, has been argued with ability by Mr. Jackson in this Court. So far as he was able to discover, no bankrupt who has defaulted upon a hire purchase agreement instalment has ever previously been charged with such an offence on facts corresponding with those I have just outlined. The point is therefore novel and of some importance. Miller was not charged, and this is of some importance, in any of those counts with having failed to disclose that he was an undischarged bankrupt either at the time he entered into the original hire purchase agreement in relation to the Mercedes or at the time he entered into the second lire purchase agreement in relation to the jaguar. The omission to charge him in that respect was no doubt because of the decision of the Court of Criminal Appeal in Garlick 42 Criminal Appeal Reports 141, a decision by which of course the learned Judge in the Crown Court was bound, though we are not.
We are not going to say much about Garlick beyond this. That case and the ensuing quashing of the conviction of obtaining credit by fraud contrary to section 13(1) of the Debtors Act 1869, which was then upon the Statute Book, proceeded upon a concession by Mr. Victor Durand who was appearing for the Crown. Mr. Justice Havers, giving the judgment of the Court of Criminal Appeal, which consisted of Mr. Justice Streatfeild, Mr. Justice Slade and himself, said that when the Court read the papers in that case and realised that a hire purchase agreement was involved, they wondered whether the count in question could possibly be sustained.
I will read the relevant passage: "We had not had an opportunity of seeing that document", the hire purchase agreement, "or the other document, the credit sales agreement, but we thought that, if it was a hire-purchase agreement in the usual form, that raised a very serious doubt whether it could be said that the appellant, in such circumstances, in incurring a debt or liability, obtained credit. Mr. Durand, for the Crown, has quite frankly admitted that it is impossible for him to seek to uphold the conviction on the second count. The hire-purchase agreement was in the usual form, under which the ownership of the bicycle remained in the person who was letting it out on hire, the only obligation on the hirer, that is to say the appellant, being to pay a deposit and then to pay on some specified date each month the amount of hire which became due. He had a right, as hirers usually have under this type of hire-purchase agreement, to terminate the agreement at any time, if he desired to do so, during the period of it. The bicycle did not become his property until the last period of hiring had occurred and he had paid the whole balance, and then he would become the owner on the payment of some small sum. In such circumstances it is impossible to say that the appellant obtained credit."
We wish to make it plain that nothing in the instant judgment must be taken as suggesting that that decision is in any way wrong. It may be that at some future date it may call for reconsideration in this Court or elsewhere, but that question does not now arise. Indeed we were asked to approach the problem we have to consider upon the assumption that Garlick was correctly decided.
Apparently the foundation for the suggestion that this offence was committed by Miller in the circumstances I have outlined, was an article by Mr. Alec Samuels in the Criminal Law Review for 1966 at page 148. Dealing with section 155 of the Bankruptcy Act, the learned author, who is a lecturer in law at the Southampton University, and if I may respectfully say so, of great experience, said: "A credit-sale agreement plainly involves the obtaining of credit. In the case of a hire-purchase agreement, alterminable hiring, no credit is obtained until arrears amount in fact to £10 or more. Credit, if obtained, will normally be obtained from the finance company and not from the dealer." The authority cited in footnote 27 is Garlick. With great respect to Mr. Samuels, we do not think that Garlick is authority for that proposition.
Then the article goes on: "Credit is clearly obtained where the bankrupt secures a loan, also where he draws a cheque in favour of the third party which is honoured with the result that the account is left £10 or more in debit. A more difficult case arises where the bankrupt enters into a tenancy agreement, e.g., to...
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