R v Turner
| Jurisdiction | England & Wales |
| Judge | Lord Reid,Lord MacDermott,Lord Morris of Borth-Y-Gest,Lord Hodson,Lord Pearson |
| Judgment Date | 25 July 1973 |
| Judgment citation (vLex) | [1973] UKHL J0725-3 |
| Date | 25 July 1973 |
| Court | House of Lords |
[1973] UKHL J0725-3
House of Lords
Lord Reid
Lord MacDermott
Lord Morris of Borth-y-Gest
Lord Hodson
Lord Pearson
Upon Report from the Appellate Committee, to whom was referred the Cause Director of Public Prosecutions against Turner (on Appeal from the Court of Appeal (Criminal Division)), that the Committee had heard Counsel, as well on Monday the 11th, as on Tuesday the 12th and Wednesday the 13th, days of June last, upon the Petition and Appeal of the Director of Public Prosecutions praying, That the matter of the Order set forth in the First Schedule thereto, namely, an Order of Her Majesty's Court of Appeal (Criminal Division) of the 29th of March 1973, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament might seem meet; and Counsel having been heard on behalf of John Eric Turner, the Respondent to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Criminal Division), of the 29th day of March 1973, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the conviction on Count 7, namely, that of obtaining pecuniary advantage by deception contrary to section 16(1) of the Theft Act 1968, imposed by His Honour Judge Nance sitting at the Crown Court holden at Liverpool on the 17th day of May 1972, thereby Quashed, be, and the same is hereby, Restored: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Court of Appeal (Criminal Division), to do therein as shall be just and consistent with this Judgment.
My Lords,
The Respondent employed a man Black and his brother to do some work in a house. By Saturday, 24th July, 1971, wages amounting to £24 were due to Black and £14 was due to his brother. Black went on that day to collect the money. The Respondent told him he did not have any ready cash and asked him to accept a cheque for £38, the sum due as wages. He did so but on the following Monday the cheque was dishonoured. It is not disputed that the Respondent acted dishonestly knowing that the cheque would not be honoured. It is not disputed that by offering to give and giving the cheque he was representing that it would be honoured.
The Respondent was charged with an offence against section 16 of the Theft Act, 1968, in that he obtained for himself a pecuniary advantage, namely, the evasion of a debt for which he was then liable. He was convicted on this count but his conviction was quashed by the Court of Appeal. On a certificate leave was given to appeal to this House.
Section 16 is as follows:—
"16.—(1) A person who by any deception dishonestly obtains for himself or another any pecuniary advantage shall on conviction on indictment 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 (including one not legally enforceable) is reduced or in whole or in part evaded or deferred; or
( b) he is allowed to borrow by way of overdraft, or to take out any policy of insurance or annuity contract, or obtains an improvement of the terms on which he is allowed to do so; or
( c) he is given the opportunity to earn remuneration or greater remuneration in an office or employment, or to win money by betting.
(3) For purposes of this section 'deception' has the same meaning as in section 15 of this Act."
This section was new and throughout the years that have passed since its enactment there has been acute controversy as to its meaning and effect. I am not surprised at that. At first sight it may look simple, but the more it is examined the greater are the difficulties in finding its proper construction. It is clear that it was intended to widen the scope of the existing law, but I cannot deduce from its terms or from anything else in the Act any clear indication of the extent of the change which was intended.
As the section creates a criminal offence it must not be loosely construed. Each word must be given its ordinary or natural meaning. It may be permissible, where necessary, to give to some word a secondary meaning of which it is reasonably capable in ordinary speech. But we must not substitute for any word some other word or phrase or write in anything which is not there.
No question arises in the present case with regard to subsection (1). It is rightly admitted that Black was induced to take the cheque by dishonest deception on the part of the Respondent. On the view which I take of subsection (2) we do not have to consider what is meant by pecuniary advantage.
But subsection (2) requires meticulous examination and analysis. I think we must proceed by examining each important word in it. The first part is drafted in an unusual way. Does it mean that in the cases set out in heads (a), (b) and (c) a pecuniary advantage is to be deemed to have been obtained, so that it is irrelevant to consider whether in fact any such advantage was obtained, and equally irrelevant to prove that nothing in the nature of pecuniary advantage was in fact obtained by the accused? I think that that must be its meaning though I am at a loss to understand why that was not clearly stated. "Is to be regarded as obtained" must, I think, mean is to be deemed to have been obtained even if in fact there was none. I must therefore reject the first argument submitted for the Respondent. It was strenuously argued that a penniless man can obtain no advantage, pecuniary or other, by evading his debt or by getting it reduced or deferred because he could not have paid any of it in any case. That might be a forceful argument if obtaining a pecuniary advantage in fact were a necessary element in the offence here charged. But if in the circumstances of this case a pecuniary advantage is deemed to have been obtained, then it need not be proved and its absence in fact is no defence.
I turn then to paragraph (a). The first question is what is meant by the word "debt". I get no assistance from its being linked with the word "charge" because during the argument no one was able to suggest any case to which "charge" could apply in this context. Debt normally has one or other of two meanings: it can mean an obligation to pay money or it can mean a sum of money owed. It cannot have the latter meaning here. The paragraph deals with cases where a debt is "reduced", "evaded" or "deferred". No doubt you can reduce a sum of money, but to speak of a sum of money being evaded or deferred is nonsense. It is an elementary principle of construction that a word must be given the same meaning in different parts of the same provision. The same word used in different sections or subsections of the same Act may in some cases have different meanings. But in this paragraph the word "debt" is only used once and it would I think be totally wrong to allow it to mean one thing when considering whether a debt has been reduced and something different when considering whether a debt has been evaded or deferred.
It has been held that the word can mean payment of a debt. That would not be construing the word: a debt and its payment are entirely different things. To substitute the phrase "payment of a debt" for the word "debt" in the Statute would be to write in something which is not there. Even if it were permissible to substitute "payment of any debt" for the words "any debt" that could only be done as a last resort if, giving to the word "debt" any of its ordinary meanings makes nonsense of some part of this provision. But if "debt" is given its ordinary meaning of an obligation to pay money I find no difficulty in applying that meaning throughout the paragraph. You can make yourself liable, you can be liable, or you may become liable for an obligation an obligation may not be legally enforceable. And in my opinion it is quite proper to speak of an obligation being reduced or being evaded or being deferred.
An obligation is reduced if the creditor agrees with the debtor that the amount owed shall be reduced. An obligation is deferred if creditor and debtor agree that the date of performance shall be postponed. An obligation is evaded if by some contrivance the debtor avoids or gets out of fulfilling or performing his obligation. In the days when such things happened, a welshing bookmaker not only evaded his pursuers, he also evaded his obligations. Evasion does not necessarily mean permanent escape. If the bookmaker evaded his pursuers on Monday, the fact that he is caught and made to pay up on Tuesday does not alter the fact that he evaded his obligations on Monday. Unlike reducing and deferring an obligation, evading an obligation is a unilateral operation. It leaves the obligation untouched and does not connote any activity on the part of the creditor. When the evasion ceases he can seek to recover the debt in any way open to him.
I can now turn to the reported cases on this provision. The first is Reg. v. Page decided in January, 1971, and reported [1971] 2 Q.B. 330...
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