Hinks v R

The House held by a majority that acquisition of an indefeasible title (a valid gift) can, in principle, amount to an "appropriation" for the purposes of section 1(1) of the Theft Act 1968. The majority applied and followed the earlier authorities in Reg v Lawrence [1972] AC 626 and Reg v Gomez [1993] AC 442, reading the word "appropriates" in the statutory definition together with the explanatory provisions in sections 2 and 3 of the Act.

The majority emphasised that consent or lawful transfer does not automatically exclude an appropriation and that questions of consent are relevant to the separate element of dishonesty under section 2(1). The court rejected submissions that the word "appropriates" should be read as if prefaced by "unlawfully" or should be limited to transfers where the owner retains some proprietary interest.

There were important subsidiary findings on jury directions: two Law Lords considered the trial judge's directions on dishonesty and capacity to be defective and would have quashed the convictions for misdirection, but the majority found the convictions safe on the facts. The decision therefore (majority) dismissed the appeal and left the convictions intact.

Background and facts.

The appellant, Mrs Hinks, was convicted after a five-day trial of multiple counts of theft for receiving large sums of money and a television set from a vulnerable man, Mr Dolphin, whose IQ and capacity were the subject of expert evidence. The prosecution alleged influence or coercion and that the transfers were not genuine gifts; the defence said the transfers were gifts or loans and argued no case to answer. The trial judge directed the jury that acquiring by way of gift could constitute appropriation and gave directions on dishonesty. The jury convicted and the appellant was sentenced to concurrent custodial terms.

Procedural posture. The appellant appealed to the Court of Appeal which dismissed the appeal: Regina v Hinks [2000] 1 Cr. App. R. 1. Leave was granted to the House of Lords on the certified question whether acquisition of an indefeasible title to property can amount to an appropriation under s.1(1) Theft Act 1968, and the appeal raised also whether the trial judge's directions on dishonesty and issues of capacity and undue influence were adequate.

Issues framed by the court.

• Whether a complete, indefeasible gift can amount to an "appropriation" under s.1(1) Theft Act 1968 read with s.3(1) and related provisions.
• Whether the trial judge's summing-up on dishonesty, mental capacity to make gifts and undue influence was adequate and whether any defect required quashing of the convictions.

Court's reasoning and decision. The majority (Lords Steyn, Slynn and Jauncey) analysed the language of sections 1 to 6 as a coherent whole and followed the House's earlier rulings in Lawrence and Gomez: "appropriation" may include acts done with the owner's consent and a valid transfer does not automatically negate the concept of appropriation; however, consent and the donor's state of mind are relevant to the separate question of dishonesty under s.2(1) and to whether the property "belonged to another" under s.5. The majority rejected arguments to read the word "unlawfully" into "appropriates" or to confine appropriation to cases where the donor retained some proprietary interest. On the trial directions, the majority concluded the convictions were safe on the presented record.

Two Law Lords (Lord Hutton and Lord Hobhouse) dissented on the adequacy of the summing-up: they considered the judge had given materially defective directions on dishonesty and on the degree of mental incapacity/undue influence required to vitiate a gift and would have allowed the appeal and quashed the convictions.

Wider context. The majority acknowledged tensions between civil property rules and criminal law but considered the established interpretation necessary to prevent unduly narrowing the scope of theft and that the mental element of dishonesty ordinarily protects against unjust prosecutions. The decision affirms the broad scope of "appropriation" as settled in Lawrence and Gomez while recognising the need for careful jury directions where gifts and donor capacity are in issue.

Appeal dismissed by majority. The House held that acquisition of an indefeasible title by way of gift can, in principle, amount to an "appropriation" under section 1(1) read with section 3(1) of the Theft Act 1968; consent or a valid transfer does not automatically exclude appropriation but is relevant to the separate element of dishonesty under section 2(1). Two Law Lords would have allowed the appeal because they considered the trial judge's summing-up on dishonesty and on donor capacity/undue influence to be defective and would have quashed the convictions, but the majority considered the convictions safe on the evidence and refused to depart from the established authorities in Lawrence and Gomez.

Conviction at trial in Wolverhampton County Court (trial judge and jury); appeal to the Court of Appeal (Criminal Division) dismissed: Regina v Hinks [2000] 1 Cr. App. R. 1; further appeal to the House of Lords allowed for hearing on certified question, decision reported [2000] UKHL 53; [2000] 3 WLR 1590.