R v Sinclair
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WIDGERY,MR. JUSTICE JAMES |
| Judgment Date | 05 July 1968 |
| Judgment citation (vLex) | [1968] EWCA Crim J0705-2 |
| Date | 05 July 1968 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 596/67 No. 597/67 |
[1968] EWCA Crim J0705-2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Widgery
Mr. Justice Lyell
and
Mr. Justice James
No. 596/67
and
No. 597/67
MR. RAYMOND WALTON, Q.C. and MR. F.E.H. GIBBENS appeared on behalf of the Applicants.
MISS E. CURNOW appeared on behalf of the Crown.
Mr. Walton applies on behalf of Queenswood (Holdings) Limited and Frederick William Smithson for leave to appeal to the House of Lords against the judgment of this Court given on the 25th June of this year, and as a preliminary to obtaining such leave asks this Court to certify that a point of law of general public importance arises in the case, namely, whether, in relation to fraud, a direction to the jury based on the "risk" concept which omits all reference to the state of mind of the accused - the knowledge that he had no right to take such risk - is a proper one.
It is unnecessary and unusual in these applications to go back over the facts of the case in detail; but it is noteworthy in this case that the principle of law to be applied was agreed in the course of argument between counsel for the Grown and Mr. Walton appearing for these defendants. In the Court's judgment that principle is stated in two places, more particularly on page 5 of the transcript, the passage from 'C' to 'E'. There is, therefore, so far no question of any principle of law in issue upon which the guidance of the House of Lords is required.
Comment is made, however, that on the last page of the transcript of the judgment where the Court is applying that principle to the facts of the present case a new test is propounded. The passage appears at letter 'A': "He" - the Judge - "properly directed the jury as to the difference between the normal business risks taken honestly and the dishonest risk deliberately taken with knowledge that there was no right to take such risk."
Comment is made that that suggests that the test to distinguish between conduct which is fraudulent and conduct which is not is whether the transaction is a normal transaction. The Court welcomes the opportunity to make it clear that no such test was intended, and, indeed, the normality of the transaction is not the test and was never intended so to be. The distinction is between honesty and dishonesty, and the passage to which I have last...
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