R v Lambie

Presenting a credit card to a merchant represents that the holder has the bank’s actual authority to contract on its behalf for payment of the voucher. The representation concerns authority, not the holder’s credit standing. A merchant agreement guaranteeing payment does not prevent the representation from inducing the transaction.

For an offence of obtaining a pecuniary advantage by deception under section 16 of the Theft Act 1968, inducement need not be proved by direct testimony recalling the transaction. The jury may infer reliance from all the evidence. Where no other reasonable explanation exists, an irresistible inference that the merchant relied on the dishonest representation is sufficient.

The respondent held a Barclaycard subject to a £200 credit limit and an obligation to return it on request. After substantially exceeding that limit and failing to return the card as agreed, she used it at Mothercare to obtain goods worth £10.35. Mothercare subsequently received payment from the bank.

At Bedford Crown Court, the respondent was convicted on one specimen count of obtaining a pecuniary advantage by deception contrary to section 16(1) of the Theft Act 1968. The Court of Appeal (Criminal Division) quashed the conviction. It distinguished the credit-card transaction from the cheque-card transaction considered in Commissioner of Police for the Metropolis v Charles [1977] A.C. 177, reasoning that the shop assistant had relied on Mothercare’s agreement with the bank rather than on a representation about the respondent’s credit standing.

The certified question was whether the differences between cheque-card and credit-card transactions justified that distinction on the issue of inducement.

1. Appeal allowed unanimously; conviction restored. Lord Roskill delivered the leading speech. Lord Diplock, Lord Fraser of Tullybelton, Lord Russell of Killowen and Lord Keith of Kinkel agreed with it. The certified question was answered in the negative, and the Court of Appeal’s order was reversed so far as it had allowed the appeal against conviction on count 2.

2. Per Lord Roskill, the principle in Commissioner of Police for the Metropolis v Charles [1977] A.C. 177 applied, with the necessary adaptation, to the dishonest use of a credit card. By presenting the card, the holder represented that she had the bank’s actual authority to contract on its behalf that the bank would honour the voucher. The representation did not concern the holder’s credit standing.

3. The agreement between the merchant and the bank, and the merchant’s expectation of payment under it, were irrelevant to the existence of that representation. The material question was whether the shop assistant was induced by the representation of actual authority to complete the transaction and release the goods. Had she known that the respondent was acting dishonestly and lacked the bank’s authority, she would not have completed it.

4. Per Lord Roskill, inducement is a question of fact, but it need not be established only through the direct testimony of the person deceived. Applying R v Sullivan (1945) 30 Cr. App. R. 132, a jury may infer reliance from the evidence as a whole. In an ordinary transaction which the witness cannot reasonably be expected to remember, proof of facts permitting an irresistible inference of reliance is sufficient. The caution expressed in Reg v Laverty (1970) 54 Cr. App. R. 495 did not preclude that conclusion.

5. The evidence permitted only the conclusion that the shop assistant would have refused the transaction had she known the truth. The issue of inducement was therefore properly left to the jury. The cause was remitted to the Court of Appeal to proceed consistently with the House’s judgment.

1. House of Lords: Allowed the prosecutor’s appeal unanimously, answered the certified question in the negative, reversed the Court of Appeal’s order concerning count 2 and restored the conviction.

2. Court of Appeal (Criminal Division): Allowed the respondent’s appeal against conviction on count 2, while expressing hesitation, and certified a point of law of general public importance.

3. Bedford Crown Court: The jury acquitted the respondent on the first specimen count but convicted her on the second count of obtaining a pecuniary advantage by deception under section 16(1) of the Theft Act 1968.