R v Royle
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE EDMUND DAVIES |
| Judgment Date | 09 November 1971 |
| Judgment citation (vLex) | [1971] EWCA Crim J1109-5 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 1814/B/71 |
| Date | 09 November 1971 |
[1971] EWCA Crim J1109-5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Edmund Davies
Mr. Justice Wrangham
and
Mr. Justice Waller
No. 1814/B/71
MR. V. WILLIAMSON appeared on behalf of the Appellant.
MISS M. STALKER appeared on behalf of the Crown.
On March 18th last at the Manchester Crown Court before Mr. Commissioner Edward Jones, the Appellant was convicted on four counts (Nos. 1, 2, 4 and 5) of obtaining property by deception and on three counts (Nos. 6, 7 and 8) of obtaining a pecuniary advantage by deception, these two groups of counts being based upon sections 15 and 16 respectively of the Theft Act, 1968. He was sentenced to concurrent terms of two years'. imprisonment on all seven counts. An order was also made, pursuant to section 188(1) of the Companies' Act, 1948, prohibiting him for the period of five years from being a director or taking part in the management of a company without leave. He appeals to this Court by leave of Mr. Justice Chapman, against his conviction on counts 6, 7 and 8 only, and against the concurrent sentences passed on each of the seven counts.
The Appellant is a man of 43 with no previous convictions. In 1969 he became a director of Rateswood Finance Limited which organised from Nottingham a network of agents in various parts of the country to advertise the availability of loans and overdrafts, particularly those secured on second mortgages. During the autumn of 1969 there was such a reduction in loan applications that the business of Rateswood Finance Limited began to founder. Then on December 11th, 1969, another company was floated under the name of Whitcroft Finance Limited (hereinafter referred to as "W. Ltd."), its stated objects including the business of "mortgage brokers, financial agents and advisers" and "to negotiate loans". It had but two directors (Atkins and Templar), the Appellant being employed as its financial adviser, and it proceeded to organise a network of agents for precisely the same purpose as Rateswood Limited had done. Its registered address was 'Green Farm, Little Norwood, near Bletchley, Bucks.', where a woman who had assumed the name of 'Mrs. Royle' lived, but it had no working office either there or elsehwere and employed no clerical or accounts staff. It was not until December 22nd, 1969 (which was later than the dates assigned to the offences charged in counts 1, 2, 6 and 7) that the directors passed the necessary resolution to open a bank account. According to Templar, between then and his resignation as director in February, 1970, he was persuaded to sign batches of cheques in blank and gave them to Royle.
W. Ltd. advertised in financial newspapers for local agents to act on their behalf. Candidates were interviewed by Royle, who used the Rateswood forms and brochures to explain the nature and object of the proposed agency. He then asked them for a substantial payment in consideration of being granted the sole agency to act for W. Ltd. in a designated area, undertaking that, in the event of the agency being terminated, the company would endeavour to resell the agency and hand over the proceeds to its former possessor. A most impressive, formally engrossed contract form was produced, and there were those who were deceived into thinking that they were dealing with the representative of a solidly based and well established finance company, to become whose agent it would be worth paying for. When they did, their money soon disappeared, for those in charge of the company's affairs showed extreme efficiency in sharing the spoils.
It was Royle's participation in these criminal activities which led to his being charged with the four counts of obtaining property by deception. We take count 1 as an illustration. Early in December 1969 (before, in fact, the company was incorporated), Mr. Richards, a hotelier in North Wales, saw one of W. Ltd.'s advertisements and answered it. Royle and Atkins promptly visited him on December 13th, the former falsely describing himself as a director of W. Ltd., represented that it was a soundly based finance company carrying on a genuine business in commercial, industrial and domestic finance, and so on. Mr. Richards was asked to pay a premium of 500 guineas for the agency, but he could manage only £100 at that time and at Royle's request he paid him this in cash. Two things then struck Mr. Richards as odd: (a) that Royle did not bother to count the bundle of notes handed to him, and (b) that he was about to leave without giving any receipt. His suspicions being aroused, when Royle returned on December 27th to collect the balance, Mr. Richards questioned him further and decided to retract. Royle was unable to comply with Mr. Richards' request for the return of the £100 and even induced the latter to lend him a further £30 on the security of his watch and pens before he departed. Attempts to recover his £130 failed for some time, but on May 1st 1970, he received a cheque for the full amount, drawn on the account of yet another company (Trusthold Investments Limited) and signed by Royle. That cheque was cleared, but other victims were not so fortunate, for on December 18th, 1969, a Mr. Clark parted with £750 to Royle and recovered nothing (count 2). On January 13th, 1970, a Mr. Cook of Warwick was persuaded to give him a cheque for £375 (being one-half of the premium requested) and after some months extracted repayment from Royle, so again he was fortunate (count 4), but a Mrs. Parker of Sutton Coldfield recovered nothing out of the £400 she was by similar deception induced to part with on January 14th, 1970 (count 5).
Although there is no appeal in respect of Royle's conviction on these four counts, the circumstances giving rise to them provide a significant background against which to consider the remaining three counts, as well as having intrinsic importance in relation to the two years' sentences imposed in respect of each of them. Counts 6, 7 and 8 were all laid under section 16(1) of the Theft Act, 1968, the material parts of which provide as follows:
"(1) A person who by any deception dishonestly obtains for himself or another any pecuniary advantage shall on conviction be liable to imprisonment for a term not exceeding five years.
(2) The cases in which a pecuniary advantage within the meaning of this section is to be regarded as obtained for a person are cases where -
(a) any debt … or charge for which he makes himself liable or is or may become liable … is reduced or in whole or in part evaded or deferred:…"
Subsection (3) adopts the definition of "deception" contained in section 15(4), which defines it as "any deception (whether deliberate or reckless) by words or conduct as to facts or as to law, including a deception as to the present intentions of the person using the deception or any other person".
Despite the aim of the still-youthful Theft Act to simplify the law, we feel that the time has already come to declare that so obscure is section 16 that it has created a judicial nightmare. It has even puzzled some academic lawyers - see, for example, Professor Elliott on "Obtaining Credit by Fraud" in 1969 Criminal Law Review at page 339 and Professor J.C. Smith's "Obtaining Credit by Fraud and the Theft Act" in 1971 Criminal Law Review at page 448; it is said to have led to certain erroneous dicta of this Court in R. v. Waterfall reported in 1970 1 Queen's Bench at page 148 (see Mr....
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