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You are here: BAILII >> Databases >> The Law Commission >> Offences of Dishonesty: Money Transfers [1996] EWLC 243(3) (15 October 1996) URL: http://www.bailii.org/ew/other/EWLC/1996/243(3).html Cite as: [1996] EWLC 243(3) |
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THE DIFFICULTY IN FILLING THE LACUNA UNDER THE PRESENT LAW
3.1 Subsequent to the House of Lords decision in Preddy, the Court of Appeal (Criminal Division) considered a similar case(1) in which the applicant, Hawkins, submitted inter alia that, in view of Lord Goffs reasoning in Preddy, he had pleaded guilty to offences under section 15 of the Theft Act 1968 under a misapprehension of law. An application by Hawkins for an extension of time (in which to seek leave to appeal), based on the change in the law represented by Preddy, was refused by the court because of the delay. As a result, it was unnecessary for the court to decide the substantive issue of whether he could have been convicted of alternative offences. Lord Bingham of Cornhill,(2) giving the judgment of the Court of Appeal, observed, however, that the Crowns submission that the applicant could have been convicted of the alternative offences was arguable.(3)
3.2 In this Part we consider whether the lacuna in the law of criminal deception exposed by Preddy can be filled under the present law. We review the options available under section 15, other offences under the Theft Acts of 1968 and 1978 and the common law offence of conspiracy to defraud.
3.3 We conclude that, although some of the offences considered provide partial assistance, none of them provides an alternative that is sufficiently comprehensive or sufficiently reflects the gravamen of the defendants dishonest conduct.
3.4 As we have seen,(4) the Court of Appeal took the view in Preddy that the property obtained by the defendants fell within the phrase "other intangible property" in the definition of "property" in section 4(1) of the 1968 Act.(5) Farquharson LJ,(6) giving the judgment of the court, said:
The CHAPS system cannot be said to be transferring money in the sense of cash, neither is it transferring a chose in action, such as a cheque, but the terms of [section 4(1)] are very wide, referring as it does to "all other property including other intangible property". In the judgment of this Court, those words are apt to include the type of transfers which were used in this case.
Following the House of Lords analysis of the transaction in Preddy, we believe that regarding transfers between accounts as "other intangible property" is unsustainable.(7) In any event, that "other intangible property" would still have to belong to somebody else prior to being obtained by the defendant in order for section 15 to apply.
3.5 As for the argument that, where the movement of funds between accounts has been effected by way of a cheque, a defendant who dishonestly obtains the cheque by deception can be said to have obtained "property belonging to another" in the form of the cheque qua chose in action, we believe that this also founders on the reasoning in Preddy.(8) If a defendant (D) obtains by deception a cheque from his or her victim (V) and that cheque is made payable to D, then the cheque represents a newly created chose in action in Ds favour. D, therefore, cannot be said to have obtained any property which had formerly belonged to V.
3.6 A stronger argument can be made in favour of charging D with obtaining the piece of paper that constitutes the cheque form.
3.7 Whether this argument succeeds turns essentially on whether D can be said to have satisfied the requirement of section 15 that he or she had an intention permanently to deprive V of the cheque form, the difficulty being that the cheque form would eventually be returned to V via Vs bank.
3.8 In Duru,(9) a case involving mortgage frauds, the defendants were charged with obtaining cheques by deception. It was decided by the Court of Appeal that there was an intention permanently to deprive because the cheque was "a piece of paper which changes its character completely once it is paid".(10) The decision is confused in that it is not the piece of paper the cheque form that changes its character as a result of the payment, but the cheque qua chose in action. And, as we have already seen,(11) regarding the cheque as a chose in action for the purposes of section 15 provides no assistance in filling the Preddy lacuna.
3.9 Not surprisingly, Lord Goff in his speech in Preddy was critical of Duru, holding that on this issue it, and the case of Mitchell(12)which followed it, were wrongly decided.(13)
3.10 Section 6(1) of the 1968 Act,(14) which allows a defendant to be regarded as having an intention of permanently depriving in circumstances where he or she does not mean the owner "permanently to lose the thing itself", might offer some solution to the problem of proving an intention permanently to deprive.
There is an available argument, which can be elaborated in a number of ways, that when D obtains a payment by cheque from V he is to be treated as having the intention of permanently depriving V of the cheque form, because, although he does not mean V "permanently to lose the thing itself", he intends "to treat the thing as his own to dispose of regardless of [Vs] rights": Theft Act 1968, s 6(1).(15)
3.11 Nonetheless, we believe that a charge framed in terms of obtaining a cheque qua cheque form provides an unsatisfactory and partial solution only, for the following reasons.
(1) It is limited to circumstances in which the debiting and crediting of accounts has been effected by way of cheque (and not by way of telegraphic or electronic transfer).
(2) Formulating a charge in terms of obtaining by deception a piece of paper which is worthless in itself fails to reflect the extent of the defendants dishonest conduct.
3.12 Section 1(1) of the Theft Act 1968 provides:
A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it
3.13 The most obvious basis of a charge under section 1, in circumstances where D has dishonestly and by deception caused the debiting of one account and the crediting of another, would be that by dishonestly causing V to extinguish Vs own property (viz Vs chose in action against the bank), D has appropriated that property. It is immaterial (sinceGomez)(16) that V consented to the extinction.
3.14 There may be some doubt as to whether D can be said to have appropriated Vs property when D has deceived V into destroying his or her own property, and in no sense has D "got" the property. Professor Griew draws a distinction between transactions effected by cheque and those effected by telegraphic or electronic transfer. He suggests(17) that, although it is strongly arguable that Ds causing a diminution in Vs account by presenting acheque for payment would amount to an appropriation by D of Vs chose in action, the argument is more doubtful where the diminution is as a result oftelegraphic or electronic transfer. In that case, although Ds deception has led V to transfer the funds, the diminution of the account is independently caused by Vs actions.(18)
3.15 In addition to the doubts raised above, there is also the limitation that a charge under section 1 would be available only if Vs account were either in credit or within an agreed overdraft limit. V would not have a chose in action capable of being stolen by D in circumstances where V had exceeded an agreed overdraft limit.(19)
3.16 Alternatively, a charge of theft might focus on Ds conduct in relation to the funds after the initial obtaining, on the basis that even at that stage they are still property belonging to V. Ds subsequent dealings with them might amount to an appropriation of them, since section 3(1) provides that
Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.
The effect of Preddy is that, by obtaining the funds, D has not stolen them;(20) therefore D can appropriate them by a later assumption of a right to them.
3.17 The first question is whether the funds obtained by D, once obtained, can be regarded as property "belonging to another". It is arguable that they may fall within section 5(1) of the 1968 Act, which provides:
Property shall be regarded as belonging to any person having in it any proprietary right or interest
3.18 If D obtains from V, dishonestly and by deception, an inter-account transfer of funds, it is arguable that V has property, in the form of a proprietary right or interest, in any resulting credit balance in Ds account, traceable in equity.(21) In Westdeutsche Bank v Islington LBC(22)Lord Browne-Wilkinson accepted that a recipient of money transferred under a mistake of fact might hold that money on a constructive trust if he or she then learned of the mistake.(23) In the same case, he also said "Although it is difficult to find clear authority for the proposition, when property is obtained by fraud equity imposes a constructive trust on the fraudulent recipient".(24) In Shadrokh-Cigari(25) money was paid by a bank by mistake into the account of a boy whose guardian (D) suggested to him that he authorise a number of bankers drafts in Ds favour. The Court of Appeal dismissed Ds appeal against conviction for theft, holding that the bank had retained an equitable proprietary interest in the drafts and that the drafts were therefore property "belonging to another" under section 5(1).
3.19 As a result of the decision in Attorney-Generals Reference (No 1 of 1985),(26) doubts have been expressed as to whether, where a person holds funds on a constructive trust for another, he or she can be guilty of theft if those funds are then dishonestly applied otherwise than for the benefit of the person for whom they are held.(27) In that case, an employee had made secret profits and was charged with the theft of those profits. The Court of Appeal took the view that the making of a secret profit did not impose a constructive trust (relying on the case of Lister & Co v Stubbs,(28) in which it was held that a bribe taken by a fiduciary was not held on trust). However, the court took pains to make clear that it was not ruling out the possibility of a theft charge based on any constructive trust:
There is a clear and important difference between on the one hand a person misappropriating specific property with which he has been entrusted, and on the other hand a person in a fiduciary position who uses that position to make a secret profit for which he will be held accountable. Whether the former is within section 5, we do not have to decide.(29)
Property obtained by deception would seem to be closer to the former case than the latter. Furthermore, the restrictive approach taken in Attorney-Generals Reference (No 1 of 1985) may not be adopted in future, given the Privy Councils decision in Attorney-General of Hong Kong v Reid(30) that, contrary to Lister v Stubbs, bribes are held on trust.
3.20 Professor Griew suggests(31) an alternative means by which a charge might be brought under section 1 in relation to dealings with the funds after they are dishonestly obtained, namely by reference to section 5(4) of the 1968 Act. Section 5(4) provides:
Where a person gets property by anothers mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to the restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds.
3.21 If Ds account is credited as a result of Vs being deceived into arranging a transfer of funds into Ds account, then, arguably, that credit in Ds account should be regarded, under section 5(4), as belonging to V. If D uses the credit, or otherwise demonstrates an intention not to make restoration, it is arguable that D has stolen property which is deemed to belong to V. However, although this argument has merit, Professor Griew has reservations as to its effectiveness: "it is debatable whether D does have an obligation to make restoration before V disaffirms the transaction."(32)
3.22 Even if funds which have been obtained by deception can be regarded as property belonging to another, either on the basis of a constructive trust or by virtue of section 5(4), a charge of theft on the basis of dealings subsequent to the initial obtaining would be artificial and confusing. It should not be necessary for the prosecution to put its case in such a tortuous manner when the essence of the case is an obtaining by deception.
3.23 We believe that although theft might provide some solution to filling the Preddy lacuna, it is unsatisfactory. A charge of theft does not require proof of deception, and therefore would not properly reflect the nature of the defendants dishonest conduct.(33)
3.24 Section 17 of the Theft Act 1968 provides:
(1) Where a person dishonestly, with a view to gain for himself or another or with intent to cause loss to another,
(a) destroys, defaces, conceals or falsifies any account or any record or document made or required for any accounting purpose; or
(b) in furnishing information for any purpose produces or makes use of any account, or any such record or document as aforesaid, which to his knowledge is or may be misleading, false or deceptive in a material particular;
he shall, on conviction on indictment, be liable to imprisonment for a term not exceeding seven years.
(2) For purposes of this section a person who makes or concurs in making in an account or other document an entry which is or may be misleading, false or deceptive in a material particular, or who omits or concurs in omitting a material particular from an account or other document, is to be treated as falsifying the account or document.
3.25 Recourse may be made to section 17 in circumstances where the defendant has, in the course of, say, obtaining a mortgage advance, entered false information on a mortgage application form.
3.26 The scope of the offence is reasonably broad, in that
(1) the document in issue need not be primarily "made or required" for any accounting purpose, it being enough that it is required for an accounting purpose "as a subsidiary consideration";(34) and
(2) the maker of the document need not make it with an accounting purpose in mind, as long as it is "required" by the lender for an accounting purpose.(35)
3.27 Nonetheless, we believe that the usefulness of section 17 as an alternative to section 15, in circumstances where before Preddy section 15 would have been charged, is limited, since
(1) it can be used only where there is an account, record or document which meets with the requirements of the section;(36) and
(2) in any event, a charge of false accounting will often fail to reflect the gravamen and nature of a defendants dishonest conduct.(37)
3.28 Section 20(2) of the Theft Act 1968 provides:
A person who dishonestly, with a view to gain for himself or another or with intent to cause loss to another, by any deception procures the execution of a valuable security shall on conviction on indictment be liable to imprisonment for a term not exceeding seven years; and this subsection shall apply in relation to the making, acceptance, indorsement, alteration, cancellation or destruction in whole or in part of a valuable security, and in relation to the signing or sealing of any paper or other material in order that it may be made or converted into, or used or dealt with as, a valuable security, as if that were the execution of a valuable security.
3.29 "Valuable security" is defined in section 20(3) as
any document creating, transferring, surrendering or releasing any right to, in or over property, or authorising the payment of money or delivery of any property, or evidencing the creation, transfer, surrender or release of any such right, or the payment of money or delivery of any property, or the satisfaction of any obligation.
3.30 As to the usefulness of applying section 20(2) to circumstances involving inter-account transfers of funds, in Law Com No 228 we expressed the following reservation:
there are a number of ways in which funds can now be transferred from one account to another without the need for a cheque, and it is far from clear whether all of them involve the "execution" of a "valuable security" within the meaning of the Act. In King(38) it was held that a CHAPS order was a valuable security; but in Manjdadria(39) it was held that a telegraphic transfer was not, and King was described as a case "in which perhaps the extreme boundaries of a valuable security were canvassed".(40)
3.31 Not only is section 20(2) of limited value, as an alternative to section 15, in that it is applicable only where a valuable security can be identified: there may be technical problems in bringing a charge under that section, particularly in cases where the charge is framed in terms of an inchoate offence. In the recent case of Mensah Lartey and Relevy,(41)a case involving mortgage fraud and charges of conspiring andattempting to procure the execution of a valuable security by deception, Hirst LJ commented on these problems:(42)
This is the latest of a line of very troublesome cases concerning the framing and proof of charges in cases involving mortgage frauds, and the point at issue relates to a very technical problem posed by modern methods of the transmission of funds. The crux of the problem is whether the prosecution, at the close of their case, had successfully established the test which it is common ground they had to make good, namely that the appellant in each case intended to procure a mortgage advance in the form of the valuable security specified in the indictment and also that she or he foresaw that the course of conduct embarked upon would necessarily lead to the execution of such a security.
3.32 If, on the other hand, a charge is brought under section 20(2) itself, the problem is substantially reduced. Professor Griew suggests that it would be sufficient to show
that its signing was "procured" if the fraudster (i) desired the advance to be made by cheque (an unlikely case), or (ii) believed or assumed that it would be, or (iii) (it being now widely known in the property field that advances are commonly made by telegraphic or electronic transfer) did not know or care how the advance would be made but realised that it might be done by cheque.(43)
3.33 Mensah Lartey and Relevy was decided before the House of Lords decision in Preddy. Ironically, in the light of that decision, Hirst LJ remarked at the end of his judgment that the Crown had accepted that in cases such as Mensah Lartey and Relevy "the proper route" would be to frame a charge under section 15(1), "thus getting away from the technicalities and artificialities of the valuable security route".
3.34 Although a charge under section 20(2) has the advantage of reflecting to a reasonable extent the nature of the defendants dishonest conduct,(44) we believe that it does not significantly assist in closing the Preddy lacuna for the reasons set out above.
3.35 Section 2(1) of the Theft Act 1978 provides, in part:
where a person by any deception
(a) dishonestly secures the remission of the whole or part of any existing liability to make a payment, whether his own liability or anothers;
he shall be guilty of an offence.(45)
3.36 The basis of a charge under section 2(1)(a) in the context of inter-account transfers would be as follows: if D dishonestly and by deception obtains funds from Vs account, then, by causing a reduction in Vs credit balance, D has dishonestly secured the remission of the whole or part of Vs bankers liability to make payment to V.
3.37 Although section 2(1)(a) arguably provides a means of resolving the Preddy lacuna under the law as it presently stands, we do not believe that it is a satisfactory solution. The section is primarily directed at the misconduct of debtors,(46) rather than that of a third party in securing the remission of an innocent partys debt to another innocent party; applying it on the basis suggested above appears unduly artificial. Furthermore, it would not be available if V had gone into unauthorised overdraft: in that case, Vs bankers have no liability to make payment to V.
3.38 The scope of the common law offence of conspiracy to defraud is set out in Part II of Law Com No 228.
3.39 It is clear, subject to proof of conspiracy, that the conduct of a person who dishonestly and by deception causes an account to be debited and another account to be credited falls within the definition of the offence in the leading case of Scott,(47) namely
an agreement by two or more by dishonesty to deprive a person of something which is his or to which he is or would be or might be entitled and an agreement by two or more by dishonesty to injure some proprietary right [of the victims].(48)
3.40 The obvious limitation in applying the common law offence of conspiracy to defraud is, of course, that it requires proof of an agreement by two or more conspirators.
3.41 Section 16 (1) of the 1968 Act provides:
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.
3.42 Section 16(2) sets out the cases "in which a pecuniary advantage within the meaning of this section is to be regarded as obtained". These are where
(b) [a person] 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.
3.43 Paragraph (a) of subsection (2) concerning those who by deception dishonestly obtained a reduction, or total or partial evasion or deferment of a debt or charge for which they had made themselves liable or were or might become liable was repealed by section 5(5) of the Theft Act 1978 (following a review of section 16(49) by the Criminal Law Revision Committee)(50) and replaced by the offences set out in the 1978 Act.
3.44 Lord Goff, in his speech in Preddy, sets out a comprehensive legislative history of sections 15 and 16 of the 1968 Act. He concludes:
The combined result of this extraordinary legislative history was that (i) the offence of obtaining credit by fraud, originally intended to be section 15(2) of the Act of 1968, has disappeared; (ii) section 16 of that Act, intended to take the place of section 15(2) and (3) as proposed, is now left in a truncated form, limiting the offence of obtaining a pecuniary advantage by deception to the two unimportant examples in the remaining paragraphs (b) and (c); and (iii) section 1 of the Act of 1978, providing for obtaining services by deception, now appears as a separate offence, defined in wide terms.(51)
3.45 As it is presently drafted, section 16 applies only to the "two unimportant examples" set out in paragraphs (b) and (c), and provides no avenue for rescue from the Preddy quagmire.
3.46 Section 1 of the Theft Act 1978 provides:
(1) A person who by any deception dishonestly obtains services from another shall be guilty of an offence.
(2) It is an obtaining of services where the other is induced to confer a benefit by doing some act, or causing or permitting some act to be done, on the understanding that the benefit has been or will be paid for.
3.47 As we remarked in Law Com No 228,(52) when a financial institution is induced to advance money by way of loan it confers a benefit for which it certainly expects to be paid (normally in the form of interest charges, an arrangement fee or both) and it would therefore seem that there is an obtaining of services within the meaning of the section. It was held in the case of Halai,(53) however, that "a mortgage advance cannot be described as a service".(54) We recommended in Law Com No 228 that section 1 of the 1978 Act should be amended so as to make it clear that that section extends to the dishonest obtaining by deception of loans of money.(55) Until that amendment is enacted, however, section 1 of the 1978 Act cannot be charged in mortgage frauds or other cases involving the dishonest obtaining of loans by deception.
3.48 In this report we recommend the creation of a new offence of obtaining a money transfer by deception,(56) which would inevitably be committed in the course of a mortgage fraud (as well as many other kinds of fraud). If this latter recommendation were implemented, the need to reverse the decision in Halai would become less pressing: if those who commit mortgage fraud can be charged with obtaining a money transfer by deception, it will not matter so much that they cannot be charged with obtaining services. However, we still believe that Halai should be reversed, for two reasons.
3.49 First, the new offence will be confined to the obtaining of a transfer of money from one account to another the sort of case which until Preddy was thought to fall within section 15. It may be possible to obtain a loan by deception without such a transfer being made for example, by inducing a lender simply to open a loan account in ones favour. This would probably amount to an offence of obtaining a pecuniary advantage by deception, namely being allowed to borrow by way of overdraft;(57) but there seems no reason why it should not be charged as an obtaining of services. Indeed, if Halai is taken to its logical conclusion it presumably excludes from section 1 of the 1978 Act the obtaining of any loan, even one paid in cash.(58)
3.50 Secondly, we have misgivings about the decision in Halai because the court appears to have overlooked the width of the statutory definition of an obtaining of services. In our view the offence was clearly intended to extend to any case where the victim is induced by deception to provide the defendant with a benefit for which the defendant is expected to pay. It is clearly committed by a person who obtains by deception the temporary use of anothers chattel, on the understanding that that use is to be paid for; we cannot see why it should be thought to make a difference that the defendant obtains the use of the victims money rather than (for example) the victims car. Whether or not there is a lacuna in the criminal law, we think that this is a matter that should be rectified if it can conveniently be done. The draft Bill annexed to this report therefore includes the substance of the Bill that was annexed to Law Com No 228 and would have the effect of reversing Halai.
3.51 For completeness it should be added that, even if section 1 were to be explicitly extended to loans, it would continue to be limited to benefits which are conferred on the understanding that they have been or will be paid for.(59) It therefore cannot apply to payments other than loans, and Preddy will continue to present problems in respect of non-cash payments other than loans.(60)
3.52 The present law includes some offences which arguably could be used as alternatives to section 15 in circumstances where, prior to Preddy, an offence would have been charged under section 15. In our view, however, for the reasons set out in this Part, none of the offences considered provides a satisfactory alternative.
Footnotes to Part III
(1) Hawkins, 31 July 1996, CA No 96/0255/X2.
(2) The Lord Chief Justice, sitting with Owen and Connell JJ.
(3) Counsel for the Crown submitted that Hawkins could either have been charged with alternative offences or convicted of alternative offences by virtue of s 6(3) of the Criminal Law Act 1967. The Lord Chief Justice suggested that both propositions were arguable.
(4) See para 2.7 above.
(5) Following Williams and Crick, 30 July 1993, CA No 91/3265/W3.
(6) Sitting with Ebsworth and Steel JJ.
(7) See also para 2.7, n 8.
(8) At [1996] 3 WLR 255, 265H, Lord Goff referred specifically to payment by cheque:
if the payee himself obtained the cheque from the drawer by deception there was no chose in action belonging to the drawer which could be the subject of a charge of obtaining property by deception. This was decided long ago in Reg v Danger (1857) 7 Cox CC 303.
(9) [1974] 1 WLR 2. Duru was said by Lord Goff in Preddy [1996] 3 WLR 255, 266H, to be wrongly decided.
(10) [1974] 1 WLR 2, 8E, per Megaw LJ.
(11) See para 3.5 above.
(12) [1993] Crim LR 788.
(13) [1996] 3 WLR 255, 266.
(14) This subsection provides in part:
A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the others rights
(15) E Griew, Archbold News Issue 7, 15 August 1996, p 2.
(16) [1993] AC 442.
(17) E Griew, Archbold News Issue 7, 15 August 1996, p 2.
(18) See also A J Turner (1996) 160 JPN 724, 726.
(19) Kohn (1979) 69 Cr App R 395, 407, per Geoffrey Lane LJ:
If the account is in credit, as we have seen, there is an obligation to honour the cheque. If the account is within the agreed limits of the overdraft facilities, there is an obligation to meet the cheque. In either case it is an obligation which can only be enforced by action. It is a right of property which can properly be described as a thing in action and therefore potentially a subject of theft under the provisions of the 1968 Act.
(20) D may have stolen the victims funds (see paras 3.13 3.15 above), but Preddy decides that those funds are different funds from the ones that D obtains.
(21) Agip (Africa) Ltd v Jackson [1990] Ch 265, 289H-290A.
(22) [1996] 2 WLR 802.
(23) Ibid, at p 838A.
(24) Ibid.
(25) [1988] Crim LR 465.
(26) [1986] QB 491.
(27) A J Turner, "Theft Act Prosecutions after R v Preddy" (1996) 160 JPN 724.
(28) (1890) 45 Ch D 1.
(29) [1986] QB 491, 503, per Lord Lane CJ. See also Arlidge and Parry on Fraud (2nd ed 1996) para 3-065.
(30) [1994] 1 AC 324.
(31) Archbold News, Issue 7, 15 August 1996, p 2.
(32) Ibid.
(33) The maximum sentence for theft is seven years: Theft Act 1968, s 7, as amended by the Criminal Justice Act 1991, s 26(1). The maximum for obtaining property by deception is ten years: Theft Act, s 15(1).
(34) A-Gs Ref (No 1 of 1980) (1981) 72 Cr App R 60, 63.
(35) Ibid; see also E Griew, The Theft Acts (7th ed 1995) para 12-02.
(36) This difficulty might be less great if the Act incorporated the definition of a "document" in s 13 of the Civil Evidence Act 1995, namely "anything in which information of any description is recorded".
(37) The maximum sentence for false accounting is seven years: s 17(1).
(38) [1992] 1 QB 20.
(39) [1993] Crim LR 73.
(40) Para 4.29. See also Arlidge and Parry on Fraud (2nd ed 1996) para 4-172. Professor Griew, in his commentary on Preddy in Archbold News, Issue 7, 15 August 1996, p 2, suggests that King might not survive Preddy: "[the decision in King] was always a doubtful one Apart from anything else, it rested on the notion that a right over property of the lender is transferred to the borrower. This is inconsistent with the reasoning in [Preddy]".
(41) 3 July 1995, CA Nos 93/2627/W5, 93/2791/W5; see also [1996] Crim LR 203.
(42) See also Arlidge and Parry, op cit, para 4-185.
(43) Archbold News, Issue 7, 15 August 1996, p 2.
(44) But the maximum sentence for an offence under s 20(2) is seven years, compared with ten for an offence under s 15.
(45) The maximum sentence is five years imprisonment: Theft Act 1978, s 4(2)(a).
(46) During the Second Reading of the Theft Bill in the House of Lords, Lord Harris of Greenwich, speaking for the Government, explained s 2(1)(a) by way of the following example: "a man has ordered goods for his business and after their arrival, disputes ever having received them and by lies persuades the seller to cancel the invoice". Hansard 17 January 1978, vol 388, col 25.
(47) Scott v MPC [1975] AC 819.
(48) Scott v MPC [1975] AC 819, 840F, per Viscount Dilhorne (with whom the other law lords agreed).
(49) Described by Edmund Davies LJ as a "judicial nightmare": Royle (1972) 56 Cr App R 131, 136.
(50) Thirteenth Report: Section 16 of the Theft Act 1968 (1977) Cmnd 6733.
(51) [1996] 3 WLR 255, 262-263. (Emphasis added)
(52) Paras 4.30 4.33.
(53) [1983] Crim LR 624.
(54) Per OConnor LJ.
(55) Law Com No 228, para 4.33.
(56) Para 4.11 below.
(57) Theft Act 1968, s 16(2)(b): see para 3.42 above.
(58) But the dishonest obtaining of a cash loan would be an offence under s 15: the requirement of intention permanently to deprive would inevitably be satisfied because there would be no question of repaying the same cash.
(59) Theft Act 1978, s 1(2).
(60) See para 2.14 above.
