R v Hinks House of Lords 26th October 2006

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Rv Hinks

Criminal law Theft Appropriation Defendant acquiring property by way of gift

Whether acquisition of property amounting to appropriation Theft Act 1968, ss 1, 3

(Transcript)

HOUSE OF LORDS

LORDS, SLYN OF HADLEY, JAUNCEY OF TULLICHETTLE, STEYN,

HUTTON, HOBHOUSE OF WOODBOROUGH

3, 4 MAY, 26 OCTOBER 2000

26OCTOBER 2000

R Smith QC and A Lowe for the Appellant

J Roberts QC and D Perry for the Respondents

Cox McQueen Howard Tain; Crown Prosecution Service

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 R v Lawrence [1972]

AC 626, [1971] 2 All ER 1253and R v Gomez[1993] AC 442, [1993] 1 All ER 1. 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 andlearned friend Lord Steyn. For the reasons which he has given, I too, would dismiss the

appeal.

LORD STEYN

My Lords,

I

Since the enactment of the Theft Act 1968the House of Lords has on three occasions

considered the meaning of the word appropriates in s 1(1) of the Act, namely in R v

Lawrence[1972] AC 626, [1971] 2 All ER 1253; in R v Morris[1984] AC 320; and in R v

Gomez[1993] AC 442, [1993] 1 All ER 1. The law as explained in Lawrenceand Gomez,
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and applied by the Court of Appeal in the present case (R v Hinks[2000] 2 Cr App Rep 1)

has attracted strong criticism from distinguished academic lawyers: see for example, JC

Smith, [1993] Crim LR 304 and [1998] Crim. L R 904; Edward Griew, The Theft Acts,7th

ed., (1995) 41-59; ATH Smith, Gifts and the Law of Theft, 1999 CLJ 10. These views

have however been challenged by equally distinguished academic writers: Glazebrook,

1993 CLJ 191-194; Gardner, Property and Theft, [1998] Crim. LR The academic criticism

of Gomezprovided 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 anappropriation of property belonging to another for the purposes of s 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 1968English law required a taking and carrying

away of the property as the actus reus of the offence. In 1968 Parliament chose tobroaden 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 theintention 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) ifhe appropriates the property in the belief that he has in law the right to deprive the other of it, on behalfof himself or of a third person; or (b) if he appropriates the property in the belief that he would have theother's consent if the other knew of the appropriation and the circumstances of it; or (c) (except wherethe property came to him as trustee or personal representative) if he appropriates the property in thebelief 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 thisincludes, where he has come by the property (innocently or not) without stealing it, any later assumptionof a right to it by keeping or dealing with it as owner.

These provisions, and in particular the word appropriates in s 1(1), read with the

explanatory provision in s 3(1), have been authoritatively interpreted by the House in

Lawrence[1972] AC 626 and Gomez [1993] AC 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 withdrawals of the maximum

permissible sum of 300 almost every day. Towards the end of this period Mr Dolphin had

lost most of his savings and moneys inherited from his father. In 1997 the appellant wascharged with six counts of theft, five counts covering moneys withdrawn and one count a

television set transferred by Mr Dolphin to the appellant. In November 1997 the appellant

stood trial on these counts in the Wolverhampton County Court before Judge Warner anda jury. It was the prosecution case that the appellant had influenced and coerced Mr

Dolphin to withdraw the moneys from his building society account, which were then
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deposited in her account. A substantial volume of evidence was led during the trial which

lasted five days. A police analyst produced documents summarising the flow of funds from

Mr Dolphin's account to that of the appellant. Building society employees testified about

the daily visits by the appellant and Mr Dolphin to effect withdrawals. The thrust of their

evidence was that the appellant did most of the talking and would interrupt Mr Dolphin if

he tried to say something. Dr Fuller, a consultant psychiatrist, assessed Mr Dolphin's IQ

as in the range between 70 to 80 (the average being 90 to 110). He said that Mr Dolphin

was able to live a normal if undemanding life. Mr Dolphin had worked as a packer in a dairy

for some 30 years. Dr Fuller described him as nave and trusting and having no idea of the

value of his assets or the ability to calculate their value. Dr Fuller accepted that MrDolphin would be capable of making a gift and understood the concept of ownership. He

thought that Mr Dolphin was capable of making the decision to divest himself of money,

but that it was unlikely that he could make the decision alone. Two police officers

testified that after cautioning the appellant she denied having any money from Mr

Dolphin except for a single cheque which she said represented a loan. In a nutshell the

prosecution case was that the appellant had taken Mr Dolphin for as much as she could

get.

The defence made a submission that in law there was no case to answer. The defence

argument was that the moneys were a gift from Mr Dolphin to the appellant, that the title

in the moneys had passed to the appellant, and that there could therefore be no theft.

The defence cited the writings of Professor Sir John Smith, QC The judge rejected the

submission and held that a gift was capable of amounting to an appropriation.

The appellant gave evidence. She did not dispute the fact of the withdrawal of moneys

from the appellant's account and the deposit of the sums in her account. She admitted

that she had accepted Mr Dolphin's television set. She said that Mr Dolphin had handed

the moneys, as well as the colour television set, as gifts to her or her young son or as

part of a loan. She denied the account of what she allegedly said to the police officers.

She asserted that she had acted honestly throughout.

The judge then summed up to the jury. His direction on appropriation was as follows:

The second ingredient is appropriates, dishonestly appropriates. You must be sure on any count thatthe property referred to in that count passed from Mr. Dolphin to Miss Hinks so that she acquired it andtreated it as her own to deal with. That can include, obviously, members of the jury, a straightforwardtaking or transfer of the property concerned. It can also include acquiring it by way of gift, either forherself or on behalf of her young son.

He directed the jury on dishonesty as follows:

I am now going to move on to deal with that word that I mentioned at first, that very important word,dishonestly, because, as I have said, it's one of the central questions that you've got to decide, whetheror not this defendant acted dishonestly. And, of course, it's entirely a matter for you, as the jury todecide. But please bear in mind the fact that if you don't like something that the defendant did, or themere fact that you don't approve of it, or the mere fact that she did something that you think was

morally reprehensible does not necessarily mean that it is dishonest. For the prosecution to make yousure that she's dishonest, they've got to make you sure of two things. They've got to make you surethat what she did was dishonest by the standards of ordinary and decent people. Now, in this regard,members of the jury, you must form your own judgment of what those standards are. That's why wehave a jury here. And if it was not dishonest by those standards, then the prosecution fails. That wouldbe an end of the matter. But if it was dishonest by those standards, then you have to decide and be surethat the defendant herself must have realised that what she was doing was dishonest by the standardsof ordinary and decent people. And in order to decide this question, you must consider the defendant'sown state of mind. If, having taken into account all the evidence, that you are sure that she must haverealised this, then the element of dishonesty is proved. If you are not sure that she realised it, she is notguilty. Now, what is the position in relation to gifts? The defendant says that Mr. Dolphin made gifts toher and that those were for her son. If any payment, or the transfer of the TV for instance, was or mighthave been a gift, then you would have to consider whether she was dishonest in accepting it. Therelevant question in relation to any gift would be this. Was Mr. Dolphin so mentally incapable that thedefendant herself realised that ordinary and decent people would regard it as dishonest to accept that

gift from him?

The remainder of the summing up is not material to the certified question.

The judge had withdrawn one count of theft from the jury. On the remaining 5 counts of

theft the jury returned unanimous verdicts of guilty. The judge sentenced the appellant


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to terms of 18 months imprisonment on each of the 5 counts, such terms to run

concurrently. It is common ground that the jury must have accepted the prosecution

case and must have rejected the appellant's explanations as untruthful.

III

The appellant appealed to the Court of Appeal. The Court of Appeal (Rose LJ, Vice

President, Douglas Brown and Dyson JJ.) dismissed the appeal: R v Hinks[2000] 1 Cr.

App. R 1. In giving the judgment of the Court of Appeal Rose LJ pointed out that, leaving

aside the judge's ruling on a gift being capable of constituting an appropriation, and therelated direct ions in his summing up, complaint was only made of two subsidiary aspec ts

of the summing up. The Court of Appeal rejected those two grounds and they have not

been renewed in the House. It is therefore only necessary to deal with the judgment of

the Court of Appeal on the point of law comprised in the certified question. After an

accurate review of the case law, and in particular the decisions of the House in Lawrence

[1972] AC 626, [1971] 2 All ER 1253and Gomez[1993] AC 442, [1993] 1 All ER 1, Rose LJ

concluded, at p. 9:

In our judgment, in relation to theft, one of the ingredients for a jury to consider is not whether therehas been a gift, valid or otherwise, but whether there has been appropriation. A gift may be clearevidence of appropriation. But a jury should not, in our view, be asked to consider whether a gift hasbeen validly made because, first, that is not what section 1 of the Theft Act requires; secondly, such anapproach is inconsistent with Lawrenceand Gomez,and thirdly, the state of mind of a donor is irrelevantto appropriation: see, in particular, the speech of Lord Browne-Wilkinson, with which Lord Jaunceyagreed, in Gomezat 396 and 495H . . . : The authorities, as it seems to us, make clear the importanceof maintaining a distinction in relation to theft between the two quite separate ingredients ofappropriation and dishonesty. Belief or lack of belief that the owner consented to the appropriation isrelevant to dishonesty. But appropriation may occur even though the owner has consented to theproperty being taken. In the present case, the jury were so directed.

This was the view of a strong Court of Appeal, experienced in this class of criminal work.

IV

My Lords, counsel for the appellant has not expressly asked the House to depart from the

previous decisions of the House. He did, however, submit with the aid of the writings ofSir John Smith that the conviction of a donee for receiving a perfectly valid gift is a

completely new departure. Relying on the academic criticism of the earlier decisions of

the House counsel submitted that their reach should not be extended. Counsel cited as

evidence of the true intention of the draftsman a passage from a note by Sir John Smithon the decision in Hinks:1998 Cr. LR 904. The passage reads as follows 904-905:

In a memorandum dated January 15, 1964 the distinguished draftsman of the Theft Act (Mr. J.S.Fiennes, as he then was) wrote to members of the Larceny Sub-Committee of the Criminal Law RevisionCommittee:

'I trust the Sub-Committee will not agree with Dr [Glanville] Williams when he says . . . that a personappropriates for himself property of which another person is the owner every time he gratefully accepts

a gift or buys an apple. If this is what the words mean, then the whole language of the clause ought tobe changed, because one really cannot have a definition of stealing which relies on the word'dishonestly' to prevent it covering every acquisition of property.'

Sir John Smith returned to this point in The Sad Fate of the Theft Act 1968, an essay in

The Search for Principle, Essay in Honour of Lord Goff of Chieveley, ed. by W Swadling

and G Jones, p. 97, 100-101. While this anecdote is an interesting bit of legal history, it is

not relevant to the question before the House. Given counsel's use of it, as well as

aspects of Sir John Smith's writing on the point in question, which have played such a

large role in the present case, it is necessary to state quite firmly how the issue of

interpretation should be approached. In Black-Clawson International Ltd. v Papierwerke

Waldhoff-Anschaffenburg AG [1975] AC 591, [1975] 1 All ER 810 at 613 of the former

report Lord Reid observed:

We often say that we are looking for the intention of Parliament, but that is not quite accurate. We areseeking the meaning of the words which Parliament used. We are seeking not what Parliament meantbut the true meaning of what they said.
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This does not rule out or diminish relevant contextual material. But it is the critical point

of departure of statutory interpretation. It also sets logical limits to what may be called in

aid of statutory interpretation. Thus the published Eighth Report of the Criminal Law

Revision Committee on Theft and Related Offences (1966) (Cmnd. 2977), and in particular

para. 35, may arguably be relevant as part of the background against which Parliament

enacted the Bill which became the Act of 1968. How far it in fact takes one is a matter

considered in Gomez [1993] AC 442, [1993] 1 All ER 1. Relevant publicly available

contextual materials are readily admitted in aid of the construction of statutes. On the

other hand, to delve into the intentions of individual members of the Committee, and their

communications, would be to rely on material which cannot conceivably be relevant. Ifstatutory interpretation is to be a rational and coherent process a line has to be drawn

somewhere. And what Mr Fiennes wrote to the Larceny Sub-Committee was demonstrably

on the wrong side of the line.

V

The starting point must be the words of the statute as interpreted by the House in its

previous decisions. The first case in the trilogy is Reg. v Lawrence1971 [1972] AC 626,

[1971] 2 All ER 1253.The defendant, a taxi driver, had without objection on the part of

an Italian student asked for a fare of 6 for a journey for which the correct lawful fare

was 10s 6d. The taxi driver was convicted of theft. On appeal the main contention was

that the student had consented to pay the fare. But it was clear that the appellant hadnot told the student what the lawful fare was. With the agreement of all the Law Lords

hearing the case Viscount Dilhorne observed [at 631F-632G]:

Prior to the passage of the Theft Act 1968, which made radical changes in and greatly simplified the lawrelating to theft and some other offences, it was necessary to prove that the property alleged to havebeen stolen was taken 'without the consent of the owner' (Larceny Act 1916, section 1(1)). These wordsare not included in section 1(1) of the Theft Act, but the appellant contended that the subsection shouldbe construed as if they were, as if they appeared after the word 'appropriates.' Section 1(1) reads asfollows:

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

I see no ground for concluding that the omission of the words without the consent of the owner wasinadvertent and not deliberate, and to read the subsection as if they were included is, in my opinion,wholly unwarranted. Parliament by the omission of these words has relieved the prosecution of theburden of establishing that the taking was without the owner's consent. That is no longer an ingredient ofthe offence. Megaw L.J., delivering the judgment of the Court of Appeal, said [1971] 1 Q.B. 373, 376that the offence created by section 1(1) involved four elements: '(i) a dishonest (ii) appropriation (iii) ofproperty belonging to another (iv) with the intention of permanently depriving the owner of it.' I agree.That there was appropriation in this case is clear. Section 3(1) states that any assumption by a person ofthe rights of an owner amounts to an appropriation. Here there was clearly such an assumption. That anappropriation was dishonest may be proved in a number of ways. In this case it was not contended thatthe appellant had not acted dishonestly.

Lord Dilhorne expressly added that belief that the passenger gave informed consent (ie.

knowing that he was paying in excess of the fare) is relevant to the issue of dishonesty,not to the question whether or not there has been an appropriation: at p. 632D The

appeal was dismissed. The ratio decidendi of Lawrence, namely that in a prosecution for

theft it is unnecessary to prove that the taking was without the owner's consent, goes

to the heart of the certified question in the present case.

The second decision of the House was R v Morrisin 1983 [1984] AC 320, [1983] 3 All ER

288a consolidated appeal involving two cases in each of which the defendant attached a

price label to goods in a supermarket which showed a price lower than that which was

properly payable for the goods. The defendant intended to pay the lower price at the

checkout. In the first case the defendant's deception was detected at the checkout

point and in the second he paid the lower prices at the checkout. He was convicted of

theft in both cases. The House concluded that the defendant had been rightly convictedof theft on both counts. In each case the certified question was the rolled-up one

whether there had been a dishonest appropriation of goods. These questions were

answered in the affirmative. However, in the single substantive judgment Lord Roskill

made an observation, which was in conflict with the ratio of Lawrenceand had to be
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corrected in Gomez. Lord Roskill said, at p. 332D:

If one postulates an honest customer taking goods from a shelf to put in his or her trolley to take to thecheckpoint there to pay the proper price, I am unable to see that any of these actions involves anyassumption by the shopper of the rights of the supermarket. In the context of section 3(1), the conceptof appropriation in my view involves not an act expressly or impliedly authorised by the owner but anact by way of adverse interference with or usurpation of those rights.

It will be observed that this observation was not necessary for the decision of the case:

absent this observation the House would still have held that there had been an

appropriation. Lord Roskill took the view that he was following the decision in Lawrence.It is clear, however, that his observation (as opposed to the decision in Morris) cannot

stand with the ratio of Lawrence.And as his observation, cast in terms of the honest

customer, shows Lord Roskill conflated the ingredients of appropriation and dishonesty

contrary to the holding in Lawrence.

The third decision of the House was in R v Gomezin 1992 [1993] AC 442, [1993] 1 All ER

1. The defendant was employed as an assistant shop manager. He agreed with two

accomplices that goods would be supplied by the shop in return for cheques which he

knew to be stolen. He told the manager of the shop that the cheques were as good as

cash. The Court of Appeal held that there was a voidable contract between the owner of

the shop and the dishonest receivers of the goods; that the transfer was with the

consent of the owner; and that accordingly there was no appropriation. The Court ofAppeal quashed the conviction arising from a plea of guilty. The following question was

certified at, p. 444B of the former report:

When theft is alleged and that which is alleged to be stolen passes to the defendant with the consent ofthe owner, but that has been obtained by a false representation, has (a) an appropriation within themeaning of section 1(1)of the Theft Act 1968 taken place, or (b) must such a passing of propertynecessarily involve an element of adverse [interference] with or usurpation of some right of the owner?

By a majority (Lord Lowry dissenting) the House answered branch (a) of the certified

question in the affirmative and branch (b) in the negative. In crystalline terms Lord Keith

of Kinkel speaking for all the numbers of the majority ruled at p. 464 C-D: (1) The

meaning of the relevant provisions must be determined by construing the statutorylanguage without reference to the report which preceded it, namely the Eighth Report of

the Criminal Law Revision Committee on Theft and Related Offences (1966) (Cmnd. 2977).

(2) The observations of Lord Roskill in Morris[1984] AC 320 were unnecessary for the

decision of that case; that they were in clear conflict with the ratio of Lawrence[1972]

AC 626, [1971] 2 All ER 1253; and that they were wrong. (3) Lawrencemust be accepted

as authoritative and correct, and there is no question of it now being right to depart

from it. At the same time Lord Keith, at p. 463 H, endorsed the judgment of Parker LJ in

the civil case of Dobson v General Accident Fire and Life Assurance Corporation Plc.

[1990] 1 QB 274, [1989] 3 All ER 927where Parker LJ highlighted the conflict between

Lawrence[1972] AC 626 and Morris[1984] AC 320, [1983] 3 All ER 288and chose to

follow Lawrence. (4) Any act may be an appropriation notwithstanding that it was done

with the consent or authorisation of the owner. In Gomez[1993] AC 442 the House wasexpressly invited to hold that there is no appropriation where the entire proprietary

interest passes: at 448B That submission was rejected. The leading judgment in Gomez

was therefore in terms which unambiguously rule out the submission that s 3(1) does not

apply to a case of a gift duly carried out because in such a case the entire proprietary

interest will have passed. In a separate judgment (with which Lord Jauncey of Tullichettle

expressed agreement) Lord Browne-Wilkinson observed, at pp. 495H-496A:

. . . I regard the word 'appropriation' in isolation as being an objective description of the act doneirrespective of the mental state of either the owner or the accused. It is impossible to reconcile thedecision in Lawrence(that the question of consent is irrelevant in considering whether there has been anappropriation) with the views expressed in Morris, which latter views in my judgment were incorrect.

In other words it is immaterial whether the act was done with the owner's consent or

authority. It is true of course that the certified question in Gomezreferred to the

situation where consent had been obtained by fraud. But the majority judgments do not

differentiate between cases of consent induced by fraud and consent given in any other

circumstances. The ratio involves a proposition of general application. Gomeztherefore
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gives effect to s 3(1) of the Act by treating appropriation as a neutral word

comprehending any assumption by a person of the rights of an owner. If the law is as

held in Gomez, it destroys the argument advanced on the present appeal, namely that an

indefeasible gift of property cannot amount to an appropriation.

VI

Counsel for the appellant submitted in the first place that the law as expounded in Gomez

and Lawrencemust be qualified to say that there can be no appropriation unless the

other party (the owner) retains some proprietary interest, or the right to resume orrecover some proprietary interest, in the property. Alternatively, counsel argued that

appropriates should be interpreted as if the word unlawfully preceded it. Counsel said

that the effect of the decisions in Lawrenceand Gomezis to reduce the actus reus of

theft to vanishing point (see Smith and Hogan, Criminal Law, 9th ed., (1999) p. 505).

He argued that the result is to bring the criminal law into conflict with the civil law.

Moreover, he argued that the decisions in Lawrenceand Gomezmay produce absurd and

grotesque results. He argued that the mental requirements of dishonesty and intention of

permanently depriving the owner of property are insufficient to filter out some cases of

conduct which should not sensibly be regarded as theft. He did not suggest that the

appellant's dishonest and repellent conduct came within such a category. Instead he

deployed four examples for this purpose, namely

(1) S makes a handsome gift to D because he believes that D has obtained a First. D has

not and knows that S is acting under that misapprehension. He makes the gift. There is

here a motivational mistake which, it is submitted, does not avoid the transaction.

(Glanville Williams, Textbook, 1st ed, at p. 788).

(2) P sees D's painting and, thinking he is getting a bargain, offers D 100,000 for it. D

realises that P thinks the painting is a Constable, but knows that it was painted by his

sister and is worth no more than 100. He accepts P's offer. D has made an enforceable

contract and is entitled to recover and retain the purchase price. (Smith and Hogan

Criminal Law,9th ed., p. 507-508).

(3) A buys a roadside garage business from B, abutting on a public thoroughfare;unknown to A but known to B, it has already been decided to construct a bypass road

which will divert substantially the whole of the traffic from passing A's garage. There is an

enforceable contract and A is entitled to recover and retain the purchase price. The same

would be true if B knewthat A was unaware of the intended plan to construct a bypass

road. (Compare Lord Atkin in Bell v Lever Brothers [1932] AC 161, 224.)

(4) An employee agrees to retire before the end of his contract of employment, receiving

a sum of money by way of compensation from his employer. Unknown to the employer,

the employee has committed serious breaches of contract which would have enabled the

employer to dismiss him without compensation. Assuming that the employee's failure to

reveal his defaults does not affect the validity of the contract, so that the employee isentitled to sue for the promised compensation, is the employee liable to be arrested for

the theft the moment he receives the money? (Glanville Williams: Theft and Voidable

Title [1981] Crim LR 666, 672).

My Lords, at first glance these are rather telling examples. They may conceivably have

justified a more restricted meaning of s 3(1) than prevailed in Lawrence[1972] AC 626,

[1971] 2 All ER 1253and Gomez[1993] AC 442, [1993] 1 All ER 1. The House ruled

otherwise and I am quite unpersuaded that the House overlooked the consequences of its

decision. On the facts set out in the examples a jury could possibly find that the

acceptance of the transfer took place in the belief that the transferee had the right in

law to deprive the other of it within the meaning of s 2(1)(a) of the Act. Moreover, in

such cases a prosecution is hardly likely and if mounted, is likely to founder on the basisthat the jury will not be persuaded that there was dishonesty in the required sense. And

one must retain a sense of perspective. At the extremity of the application of legal rules

there are sometimes results which may seem strange. A matter of judgment is then

involved. The rule may have to be recast. Sir John Smith has eloquently argued that the

rule in question ought to be recast. I am unpersuaded. If the law is restated by adopting
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a narrower definition of appropriation, the outcome is likely to place beyond the reach of

the criminal law dishonest persons who should be found guilty of theft. The suggested

revisions would unwarrantably restrict the scope of the law of theft and complicate the

fair and effective prosecution of theft. In my view the law as sett led in Lawrenceand

Gomezdoes not demand the suggested revision. Those decisions can be applied by

judges and juries in a way which, absent human error, does not result in injustice.

Counsel for the appellant further pointed out that the law as stated in Lawrenceand

Gomezcreates a tension between the civil and the criminal law. In other words, conduct

which is not wrongful in a civil law sense may constitute the crime of theft. Undoubtedly,this is so. The question whether the c ivil claim to title by a convicted thief, who

committed no civil wrong, may be defeated by the principle that nobody may benefit from

his own c ivil orc riminal wrong does not arise for dec ision. Nevertheless there is a more

general point, namely that the interaction between criminal law and civil law can cause

problems: compare Beatson and Simester, Stealing One's Own Property (1999) 115 LQR

372. The purposes of the civil law and the criminal law are somewhat different. In theory

the two systems should be in perfect harmony. In a practical world there will sometimes

be some disharmony between the two systems. In any event, it would be wrong to

assume on a priori grounds that the criminal law rather than the civil law is defective.

Given the jury's conclusions, one is entitled to observe that the appellant's conduct

shouldconstitute theft, the only available charge. The tension between the civil and the

criminal law is therefore not in my view a factor which justifies a departure from the law

as stated in Lawrence and Gomez. Moreover, these decisions of the House have a

marked beneficial consequence. While in some contexts of the law of theft a judge

cannot avoid explaining civil law concepts to a jury (eg. in respect of s 2(1)(a)), the

decisions of the House of Lords eliminate the need for such explanations in respect of

appropriation. That is a great advantage in an overly complex corner of the law.

VII

My Lords, if it had been demonstrated that in practice Lawrenceand Gomezwere

calculated to produce injustice that would have been a compelling reason to revisit the

merits of the holdings in those dec isions. That is however, not the case. In practice themental requirements of theft are an adequate protection against injustice. In these

circumstances I would not be willing to depart from the clear decisions of the House in

Lawrenceand Gomez. This brings me back to counsels' principal submission, namely that

a person does not appropriate property unless the other (the owner) retains, beyond the

instant of the alleged theft, some proprietary interest or the right to resume or recover

some proprietary interest. This submission is directly contrary to the holdings in Lawrence

and Gomez.It must be rejected. The alternative submission is that the word

appropriates should be interpreted as if the word unlawfully preceded it so that only

an act which is unlawful under the general law can be an appropriation. This submission is

an invitation to interpolate a word in the carefully crafted language of the Act of 1968. It

runs counter to the decisions in Lawrenceand Gomezand must also be rejected. It

follows that the certified question must be answered in the affirmative.

VIII

In his judgment my noble and learned friend Lord Hutton concluded that the trial judge's

summing-up on dishonesty was materially defective in particular respects which he lists

and that the appeal should be allowed on this ground. In reluctant disagreement with Lord

Hutton I take a different view. The House is clearly not confined to the certified question.

I agree that in the interests of justice one must look at the matter in the round. It is,

however, relevant to bear in mind the context in which the points arise. First, the trial

judge was not invited to give such spec ial direct ions. Secondly, these points were not

contained in the written grounds of appeal before the Court of Appeal. Thirdly the points

of criticism were not contained in the Statement of Facts and Issues or in the printedcases. Fourthly, the House has not seen transcripts of evidence. The relevance of this

factor is that the House is inadequately informed as to the way in which the defence

case was deployed before the judge and jury. And a summing-up must always be tailored

to the particular circumstances of each case.


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The relevant question in relation to any gift would be this. Was Mr. Dolphin so mentally incapable thatthe defendant herself realized that ordinary and decent people would regard it as dishonest to accept thegift from him?

I therefore turn to consider dishonesty where the defendant contends, as in this case,

that she received the money or property as a gift. My Lords, it appears contrary to

common sense that a person who receives money or property as a gift could be said to

act dishonestly, no matter how much ordinary and decent people would think it morally

reprehensible for that person to accept the gift. S 2(1)(b) of the Act recognises this

common sense view by providing:

(1) A person's appropriation of property belonging to another is not to be regarded as dishonest . . .(b) if he appropriates the property in the belief that he would have the other's consent if the other knewof the appropriation and the circumstances of it;

It follows, a fortiori, that a person's appropriation of property belonging to another should

not be regarded as dishonest if the other person actually gives the property to him. Thusin R v Lawrence [1972] AC 626, [1971] 2 All ER 1253 at 632C of the former report

Viscount Dilhorne said:

Section 2(1) provides, inter alia, that a person's appropriation of property belonging to another is not tobe regarded as dishonest if he appropriates the property in the belief that he would have the other'sconsent if the other knew of the appropriation and the circumstances of it. A fortiori, a person is not tobe regarded as acting dishonestly if he appropriates another's property believing that with fullknowledge of the circumstances that other person has in fact agreed to the appropriation. The appellant,if he believed that Mr. Occhi, knowing that 7 was far in excess of the legal fare, had neverthelessagreed to pay him that sum, could not be said to have acted dishonestly in taking it. When Megaw L.J.said that if there was true consent, the essential element of dishonesty was not established, Iunderstand him to have meant this. Belief or the absence of belief that the owner had with suchknowledge consented to the appropriation is relevant to the issue of dishonesty, not to the questionwhether or not there has been an appropriation.

Therefore I consider that in R v Mazo[1997] 2 Cr App Rep 518, [1996] Crim LR 435 after

referring to a sentence in the above passage of the speech of Viscount Dilhorne, Pill LJ

was right to say at p. 521C: It is implicit in that statement that if in all the

circumstances there is held to be a valid gift there can be no theft. The reason why

there is no theft is because there is no dishonesty.

But the simple proposition that a person who receives property as a gift is not to be

regarded as dishonest becomes more difficult to apply where the prosecution alleges that

the gift was void or voidable by reason of circumstances known to the defendant. This

situation was discussed by Megaw LJ in Lawrence[1971] 1 QB 373, 377C:

Of course, where there is true consent by the owner of property to the appropriation of it by another, acharge of theft under section 1(1) must fail. This is not, however, because the words 'without consent'have to be implied in the new definition of theft. It is simply because, if there is such true consent, theessential element of dishonesty is not established. If, however, the apparent consent is brought about bydishonesty, there is nothing in the words of section 1(1), or by reason of any implication that canproperly be read into those words, to make such apparent consent relevant as providing a defence. The

prosecution have to prove the four elements already mentioned, and no more. No inference to thecontrary is to be drawn from the words of section 2(1)(b), already quoted. That reference does no morethan show that the essential element of dishonesty does not exist if the defendant when he appropriatesthe property believes that the owner would consent if he knew the circumstances. 'The circumstances'are, of course, all the relevant circumstances. 'The belief' is an honest belief. That paragraph does notgive rise to the inference that an appropriation of property is not theft when there is a 'consent' if itcan be rightly so described which is founded upon the dishonesty of the defendant.

There was no difficulty in applying that concept in the case of Lawrenceitself because,

as Viscount Dilhorne observed at p. 632C and E, it was not contended that the defendant

had not acted dishonestly, and there was ample evidence of dishonesty.

InR v Morris[1984] AC 320, [1983] 3 All ER 288 at 334C of the former report Lord Roskill

stated:

I respectfully suggest that it is on any view wrong to introduce into this branch of the criminal lawquestions whether particular contracts are void or voidable on the ground of mistake or fraud or whetherany mistake is sufficiently fundamental to vitiate a contract. These difficult questions should so far aspossible be confined to those fields of law to which they are immediately relevant and I do not regardthem as relevant questions under the Theft Act 1968.
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I respectfully agree, but I think that in a case where the prosecution contends that the

gift was invalid because of the mental incapacity of the donor it is necessary for the jury

to consider that matter. I further consider that the judge must make it clear to the jury

that they cannot convict unless they are satisfied (1) that the donor did not have the

mental capacity to make a gift and (2) that the donee knew of this incapacity.

In R v Mazo [1997] 2 Cr.App. R 518, where the accused had received large sums of

money from an elderly lady and claimed that they were gifts, I consider that the Court of

Appeal was right to quash the conviction because the trial judge had not directed the

jury adequately on the issue of the lady's capacity to make a valid gift, Pill LJ stating atp. 522E- 523A:

Undoubtedly in this case there was evidence which, if the jury believed it and made the necessaryinferences, could have found a conviction for theft. There was evidence to suggest, though it was inissue, that Lady S.'s mental capacity was such that she could not make a valid gift. The prosecution casebeing that there was no gift because there was no capacity to give, it was essential that the jury beconfronted plainly with the issue which arose upon her ability to make a valid gift. It was necessary forthe jury, before convicting, to consider the state of mind of the donee and the circumstances of thetransfer, but it was also essential to prove that the donor had no sufficient degree of understanding tomake a valid gift. The jury were never given a plain direction to that effect It is, in the judgment ofthe court, as important upon the present criminal charge as it is in a civil case involving a transfer intervivosto consider the state of mind of the donor and whether a valid gift can be and is made.

In contrast, in R v Kendrick and Hopkins[1997] 2 Cr App Rep 524, [1997] Crim LR 359there was clear evidence that the owner of the monies and investments, who was aged

99, was mentally incapable of managing her own affairs and was thus incapable of makinga gift. Therefore I consider that in that case the Court of Appeal was right to uphold the

conviction for conspiracy to steal by the managers of the residential home where the

owner lived and who had acquired large sums of money which had belonged to her and

which they claimed were gifts. Ebsworth J, delivering the judgment of the Court of

Appeal, rejected the submission of defence counsel that the judge had failed to indicate

sufficiently to the jury the level of mental incapacity which would be necessary to cause

the donor to be incapable of making a gift and stated at p. 538A:

It was, in our judgment, a case in relation to Mrs. Clare's mental capacity, very different on its factsfrom Mazoand the judge in summing-up, in our view, made it wholly clear to the jury, for the purposesof the law, what the evidence was in relation to the level of mental capacity. There is nothing in thesumming-up, and nothing in the evidence, as it appears from the summing-up, which could haveresulted in a jury being confused as to whether Mrs. C lare was somebody who is just 'not quite up to it',with reduced mental capacity, which was what was said of Lady S., or lacking the capacity to managerher affairs. There is, both for reasons of a strict reading of the law and, in our judgment, on the way inwhich it was put to the jury, no basis upon which there was either a misdirection or anything which couldhave rendered the verdict of the jury unsafe.

Therefore there was an appropriation in that c ase and there was dishonesty because the

defendants knew that the elderly lady was mentally incapable of making a gift.

My Lords, in the present state of the law relating to theft when the defendant c laims

that he or she received the money or property as a gift, a Crown Court judge faces adifficult task in summing-up to a jury. In this case the judge gave a fair and careful

summary of the evidence. In the passage which I have set out he rightly told the jury

that the mere fact that they disapproved of what the defendant did, or thought that it

was morally reprehensible, did not necessarily mean that it was dishonest. It is also clear

that the third and fourth paragraphs in the passage of the summing-up which I have set

out above were based on the guidance given by the Court of Appeal in R v Ghosh[1982]

1 QB 1053, [1982] 2 All ER 689.

But in my opinion in a case where the defendant contends that he or she received a gift,

a direction based only on Ghosh is inadequate because it fails to make clear to the jury

that if there was a valid gift there cannot be dishonesty, and in the present case there is

the danger that, if the gift was not void for want of mental capacity, the jury mightnevertheless convict on the basis that ordinary and decent people would think it

dishonest for a younger woman to accept very large sums of money which constituted his

entire savings from a nave man of low intelligence, and that the woman would have

realised this.
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Immediately after giving the part of his direction based on Ghoshthe judge said at p. 6:

If any payment, or the transfer of the TV for instance was or might have been a gift, then you wouldhave to consider whether she was dishonest in accepting it. The relevant question in relation to any giftwould be this. Was Mr. Dolphin so mentally incapable that the defendant herself realized that ordinaryand decent people would regard it as dishonest to accept that gift from him?

But this part of the charge was defec tive because it linked the issue of mental incapacity

to what ordinary and decent people would regard as dishonest. Moreover in summarising

the evidence of the consultant psychiatrist who had examined Mr Dolphin on behalf of the

Crown and who was called as a prosecution witness the judge said at p. 15:

Dr. Fuller said that he would be capable of making a gift and understand that he was giv ing theproperty to someone else. He would be capable of understanding the fact that the property he wasgiving belonged to him. He would be capable of understanding that someone shouldn't simply come inand take his television set. He would be capable of understanding that the daily visit to the buildingsociety, he would understand that the money that he had in the building society belonged to him.

And towards the end of his summing-up the judge said at p. 49:

And Mr. Morse [counsel for the C rown] ended his cross-examination by saying to her that she hadtaken him for as much as she could get, which in one sense, in a nutshell, is what the prosecution aresaying in their case, and she said that was not true.

Therefore, if it was part of the Crown case that, apart from any issue of influence or

coercion, any gifts made by Mr Dolphin to the appellant were void because he was

mentally incapable of making such gifts, I consider that the summing up was defective as

the jury were not given adequate directions as to the degree of mental incapacity which

makes void a gift or gifts of large sums of money. But it may be that no such directions

were given because the point in relation to mental capacity was not advanced as a

separate and distinct point by the Crown.

Therefore I consider that in this case:

(1) It was necessary for the judge to make clear to the jury that if there was a valid gift

the defendant could not be found to be dishonest no matter how much they thought herconduct morally reprehensible.

(2) If the Crown were making the case that the gifts were invalid because Mr Dolphin was

mentally incapable of making a gift, it was necessary for the judge to give the jury a

specific direction as to what degree of mental weakness would, in the light of the value

of the gifts and the other circumstances of the case, make the donor incapable of making

a valid gift.

(3) The jury should have been directed that if they were satisfied that Mr Dolphin was

mentally incapable of making a gift, they should not convict unless they were satisfied

that what the defendant did was dishonest by the standards of ordinary decent people

and that the defendant must have realised this.

(4) If the Crown were making the case that the gift was invalid because of undue

influence or coercion exercised by the defendant, it was necessary for the judge to give

the jury a spec ific direction as to what would constitute undue influence or coercion.

(5) The jury should have been directed that if they were satisfied that the gifts were

invalid by reason of undue influence or coercion, they should not convict unless they

were satisfied that what the defendant did was dishonest by the standards of ordinary

decent people and that the defendant must have realised this.

The conduct of the defendant was deplorable and it may be that if the issues had been

more clearly defined a jury would have been entitled to convict, but in my opinion thesumming up was defective in the ways which I have described and the convictions should

not stand. I consider, with respect, that the Court of Appeal erred in the present case

because at [2000] 1 Cr.App.R 1, 7F-G it rejected the appellant's submission as to

dishonesty by referring to the separate issue of appropriation.


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Accordingly, for the reasons which I have stated, I would allow the appeal and quash the

convictions.

LORD HOBHOUSE OF WOODBOROUGH

My Lords,

This appeal comes before your Lordships in order to settle yet another point of contention

under the Theft Act 1968. The point certified - Whether the acquisition of an

indefeasible title to property is capable of amounting to an appropriation of propertybelonging to another for the purposes of s.1(1)of the Theft Act 1968? - is very similar

to that certified on the appeal to your Lordships' House in R v Gomez[1993] AC 442,

[1993] 1 All ER 1but with the substitution of the words "acquisition of an indefeasible

title" for the words an acquisition of property "with the consent of the owner . . .

obtained by a false representation".

Your Lordships have already referred to the facts which gave rise to the prosecution of

the appellant. The case which was presented against her was based upon the allegation

that she had coerced or unduly influenced Mr Dolphin into parting with his money and the

television set. The case against her was largely circumstantial but was nevertheless very

strong. Her conduct was on any view deplorable. It is not surprising that she was

convicted by the jury.

The complication which arose was that the prosecution had also alleged that Mr Dolphin

lacked the mental capacity to make gifts or otherwise dispose of his property. The expert

and other evidence on this question was arguably equivocal. Dr Fuller's assessment was

that Mr Dolphin was extremely nave and gullible and it would be easy for anyone to take

advantage of him. Mr Dolphin would be capable of making a gift and understood the

concept of ownership but if he decided to divest himself of money it was unlikely that he

would make that decision alone. The trial judge, rightly, rejected a submission of no case

to answer but when he came to sum up he seems to have discarded the way in which the

prosecution had founded their case and directed the jury that they could convict the

appellant of theft on the simple basis that she had been the recipient of a valid gift

provided that the jury were satisfied that the conduct of the appellant fell short of thestandards of ordinary and decent people and the appellant realised this. The key passage

is:

Now what is the position in relation to gifts? The defendant says that Mr Dolphin made gifts to her andthat those were for her son. If any payment, or the transfer of the TV for instance, was or might havebeen a gift, then you would have to consider whether she was dishonest in accepting it. The relevantquestion in relation to any gift would be this. Was Mr Dolphin so mentally incapable that the defendantherself realised that ordinary and decent people would regard it as dishonest to accept that gift fromhim?

(Later he added -

But, of course, as I have told you, Mr Dolphin's mental faculties are right at the heart of this case whenyou are deciding if you are sure whether Miss Hinks was dishonest or not.)

It must be noted that the direction specifically involves the jury deciding that Mr Dolphin

was mentally incapable. In the context, this was probably intended to mean mentally

incapable of deciding to make a gift. If this was so, then there would not have been an

indefeasible gift and the question certified would not arise.

Still, it would not be helpful to dismiss the appeal on that ground. The respondent did not

submit that we should. It was not the ground upon which the Court of Appeal dismissed

her appeal. Rose LJ said [2000] 1 Cr App R 1 at 9:

In our judgment, in relation to theft, one of the ingredients for a jury to consider is not whether therehas been a gift, valid or otherwise, but whether there has been an appropriation.A gift may be clearevidence of appropriation.But a jury should not, in our view, be asked to consider whether a gift hasbeen validly made ........(emphasis supplied)

The dismissiveness of this reasoning is in itself remarkable but the proposition which

needs particularly to be examined is that which I have emphas-ised bearing in mind that
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the Court of Appeal draws no distinction between a fully effective gift and one which is

vitiated by incapacity, fraud or some other feature which would lead both the man in the

street and the law to say that the transfer was not a true gift resulting from an actual

intention of the donor to give. Another aspect of the Court of Appeal's reasoning which

also has to be examined is the relationship of that proposition to the concept of

dishonesty. It is explicit in the Court of Appeal judgment that the relevant definition of

the crime of theft is to be found in the element of dishonesty and R v Ghosh[1982] QB

1053, [1982] 2 All ER 689and that this is to receive no greater definition than

consciously falling below the standards of an ordinary and decent person and may include

anything which such a person would think was morally reprehensible. It may be no morethan a moral judgment.

The reasoning of the Court of Appeal therefore depends upon the disturbing acceptance

that a criminal conviction and the imposition of custodial sanctions may be based upon

conduct which involves no inherent illegality and may only be capable of being criticised

on grounds of lack of morality. This approach itself raises fundamental questions. An

essential function of the criminal law is to define the boundary between what conduct is

criminal and what merely immoral. Both are the subject of the disapprobation of ordinary

right-thinking citizens and the distinction is liable to be arbitrary or at least strongly

influenced by considerations subjective to the individual members of the tribunal. To treat

otherwise lawful conduct as criminal merely because it is open to such disapprobation

would be contrary to principle and open to the objection that it fails to achieve the

objective and transparent certainty required of the criminal law by the principles basic to

human rights.

I stress once more that it is not my view that the resort to such reasoning was

necessary for the decision of the present case. I would be reluctant to think that those

of your Lordships who favour dismissing this appeal have fallen into the trap of believing

that, without adopting the reasoning of the Court of Appeal in this case, otherwise guilty

defendants will escape justice. The facts of the present case do not justify such a

conclusion nor do the facts of any other case which has been cited on this appeal.

The Act:

The Theft Act 1968was passed in an attempt to simplify the law of theft and remove

excessive and technical complications which arose from the concepts used in the Larceny

Act 1916 and its predecessors. One source of complication had been the fact that

larceny was a possession based crime and used the criteria takes and carries away and

without the consent of the owner in the definition of stealing. The Theft Act on the

other hand defines theft in a deceptively simple way - A person is guilty of theft if he

dishonestly appropriates property belonging to another with the intention of permanently

depriving the other of it. (s.1(1))

In order to try and limit the number of separate offences under the Act , the Theft Act, in

contrast with the Larceny Act, adopts the approach of a single short definition of "theft"and then expands that definition so that it can cover a wide range of more complex

situations. Thus, sections 2 to 6 have been included in the Act to amplify and extend the

meaning of the expressions used in the s.1 definition. Section 2 deals with "dishonestly",

s.3 with "appropriates", s.4 with "property", s.5 with "belonging to another" and s.6 with

"with the intention of permanently depriving the other of it". These provisions, although

each given a distinct title are in their terms interlinked and implicitly cross-refer to each

other. They cannot be construed or applied in isolation. Some are used to qualify the

definition of theft and give it a different meaning to that which would have been

understood by the simple definition standing alone. It is therefore imperative, as is

specifically required by s.1(3), to have regard to these sections when construing s.1(1).

But this structure of sections 1 to 6 has had an unfortunate by-product. It has led to apractice (started by Megaw LJ in the Court of Appeal in Lawrence) of construing each of

the words or phrases in s.1(1) as if they were independent and not part of a single

complex definition. The words and phrases have an inter-relation, the one affecting the

meaning of another and of the whole. Lord Browne-Wilkinson warned against this in his

speech in R v Gomez[1993] AC 442, [1993] 1 All ER 1 at 495 of the former report:
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But it should not be overlooked that elements (i) and (ii) .... are interlinked: element (i) (dishonest) isan adjectival description of element (ii) (appropriation). Parliament has used a composite phrase'dishonest appropriation'. Thus it is not every appropriation which falls within the section but only an actwhich answers the composite description. The fact that Parliament used that composite phrase -'dishonest appropriation' - in my judgment casts light on what is meant by the word 'appropriation'."

Another point which has arisen from the general intention of the Act and its drafting is

the assumption that all questions arising in connection with the law of theft should now

be capable of answer without involving any concept or rule derived from the civil law or

using any technical legal terminology. Whilst there can be no doubt about the generalintention of the Act, to proceed from such a general intention to that assumption is

simplistic and erroneous. It is, of course, part of the duty and function of the judge at

the criminal trial to separate the questions of law from the questions of fact and only

direct the jury on matters of law so far as the issues in the case make it necessary for

them to know the law in order to decide the issues of fact and determine the defendant's

guilt or innocence; but, when there are relevant questions of law, they must be

recognised and the jury directed accordingly.

The truth is that theft is a crime which relates to civil property and, inevitably, property

concepts from the c ivil law have to be used and questions answered by reference to that

law. Lord Roskill (expressing sentiments similar to those voiced by others before and

since) was no doubt right in R v Morris[1984] AC 320, [1983] 3 All ER 288 at 334 of theformer report to warn in general terms against introducing into the criminal law questions

whether particular contracts were void or voidable on the ground of mistake or fraud or

whether any mistake was sufficiently fundamental to vitiate a contract. But the Act at

times expressly requires civil law concepts to be applied. s 1(1) uses the expression

"belonging to another". Thus, in some criminal cases, it may be necessary to determine

whether the relevant property belonged to the alleged victim or to the defendant. In R v

Walker[1984] Crim LR 112 the case turned upon whether the article in question had been

rejected by the buyer so as to revest the title to it in the seller, the defendant. (See also

per Bingham LJ in Dobson v General Accident, Fire and Life Assurance Corporation Plc

[1990] 1 QB 274, [1989] 3 All ER 927) This was an issue which had to be answered by

reference to the civil law and about which the criminal law had nothing to say except topose the question. (Another case which illustrated the same need to recognise and give

effect to the civil law is R v Preddy[1996] AC 815, [1996] 3 All ER 481and the

consequence of having failed to do so was that the Court of Appeal had then to

reconsider a consid-er-able number of wrongly based convictions

Section 5: 'Belonging to Another':

5(1) Property shall be regarded as belonging to any person having possession or control of it, or havingin it any proprietary right or interest (not being an equitable interest arising only from an agreement totransfer or grant an interest).

(2) Where property is subject to a trust, the persons to whom it belongs shall be regarded as including

any person having a right to enforce the trust, and an intention to defeat the trust shall be regardedaccordingly as an intention to deprive of the property any person having that right.

(3) Where a person receives property from or on account of another, and is under an obligation to theother to retain and deal with that property or its proceeds in a particular way, the property or proceedsshall be regarded (as against him) as belonging to the other.

(4) Where a person gets property by another's 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 thatobligation the property or proceeds shall be regarded (as against

Documents

R v Hinks House of Lords 26th October 2006