Regina v. Hinks, (2000)

House of Lords

Linked as:

Extract

Regina v. Hinks, (2000)

HOUSE OF LORDS

Lord Slynn of Hadley Lord Jauncey of Tullichettle Lord Steyn Lord Hutton Lord Hobhouse of Wood-borough

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

REGINA

HINKS

(APPELLANT)

(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION)

ON 26 OCTOBER 2000

LORD SLYNN OF HADLEY

My Lords,

I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Steyn. For the reasons he gives I would dismiss the appeal. I do not consider it right in this case to depart from decisions of the House in Reg. v. Lawrence [1972] A.C. 626 and Reg. v. Gomez [1993] A.C. 442. Nor do I think it appropriate for the House to review the judge's summing up on dishonesty in this case but not doing so is not to be read as an approval of it.

LORD JAUNCEY OF TULLICHETTLE

My Lords,

I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Steyn. For the reasons which he has given, I too, would dismiss the appeal.

LORD STEYN

My Lords,

Since the enactment of the Theft Act 1968 the House of Lords has on three occasions considered the meaning of the word "appropriates" in section 1(1) of the Act, namely in Reg. v. Lawrence [1972] A.C. 626; in Reg. v. Morris [1984] A.C. 320; and in Reg. v. Gomez [1993] A.C. 442. The law as explained in Lawrence and Gomez, and applied by the Court of Appeal in the present case (Regina v. Hinks [2000] 2 Cr. App. Rep. 1) has attracted strong criticism from distinguished academic lawyers: see for example, J.C. Smith, [1993] Crim. L.R. 304 and [1998] Crim. L. R. 904; Edward Griew, The Theft Acts, 7th ed., (1995) 41-59; A.T.H. Smith, "Gifts and the Law of Theft," 1999 C.L.J. 10. These views have however been challenged by equally distinguished academic writers: Glazebrook, 1993 C.L.J. 191-194; Gardner, Property and Theft, [1998] Crim. L.R. The academic criticism of Gomez provided in substantial measure the springboard for the present appeal. The certified question before the House is as follows:

Whether the acquisition of an indefeasible title to property is capable of amounting to an appropriation of property belonging to another for the purposes of section 1(1) of the Theft Act 1968.

In other words, the question is whether a person can "appropriate" property belonging to another where the other person makes him an indefeasible gift of property, retaining no proprietary interest or any right to resume or recover any proprietary interest in the property.

Before the enactment of the Theft Act 1968 English law required a taking and carrying away of the property as the actus reus of the offence. In 1968 Parliament chose to broaden the reach of the law of theft by requiring merely an appropriation. The relevant sections of the Act of 1968 are as follows:

"1. Basic definition of theft

(1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and "thief" and "steal" shall be construed accordingly.

2. 'Dishonestly'

(1) A person's appropriation of property belonging to another is not to be regarded as dishonest - (a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or (b) if he appropriates the property in the belief that he would have the other's consent if the other knew of the appropriation and the circumstances of it; or (c) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

3. 'Appropriates'

(1) 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."

These provisions, and in particular the word "appropriates" in section 1(1), read with the explanatory provision in section 3(1), have been authoritatively interpreted by the House in Lawrence [1972] A.C. 626 and Gomez [1993] A.C. 442. It will be a matter for consideration whether such earlier rulings are dispositive of the question of law before the House. In the meantime, it is necessary to give a narrative of the background and the proceedings below.

II.

In 1996 the appellant was 38 years old. She was the mother of a young son. She was friendly with a 53 year old man, John Dolphin. He was a man of limited intelligence. The appellant described herself as the main carer for John Dolphin. It is not in dispute that in the period April to November 1996 Mr. Dolphin withdrew sums totalling around £60,000 from his building society account and that these sums were deposited in the appellant's account. During the summer of that year Mr. Dolphin made withdrawa...

See the full content of this document