Briggs v R

For theft under section 3(1) of the Theft Act 1968, a defendant does not appropriate a victim’s credit balance merely by deceiving the victim into initiating a payment. The victim’s own voluntary act in directing the transfer is not an assumption by the defendant of an owner’s rights, even if consent was fraudulently induced.

The proper charge in such circumstances may be a deception offence. The Court of Appeal will not ordinarily substitute such a conviction under section 3 of the Criminal Appeals Act 1968 unless the jury’s verdict necessarily established the required facts and the fairness of doing so is clear.

The appellant was convicted at King’s Lynn Crown Court of theft, forgery, dishonestly obtaining social security benefits, and obtaining services by deception.

Count 1 alleged theft of £49,950 from the proceeds of the sale of an elderly couple’s home. The appellant had caused their conveyancers, acting on written instructions signed by the couple, to transfer the money to solicitors completing the purchase of a property. The property was placed in the appellant’s and her father’s names rather than the couple’s names.

The appeal challenged the rejection of a submission of no case to answer and the direction on appropriation. The Court also considered whether to substitute a deception conviction and a renewed application for permission to appeal the remaining counts.

1. The appeal against the theft conviction was allowed. The conviction on count 1 was quashed. The appellant had not appropriated the £49,950 because the payment was initiated by the victims, through their conveyancers, in reliance on instructions to which they had consented.
2. Section 3(1) of the Theft Act 1968 requires an assumption of an owner’s rights. Fraudulently inducing an owner to make a payment does not itself amount to that assumption. The Court followed the approach in Naviede [1997] Crim L R 662, and distinguished Hilton [1997] 2 Cr App R 445. In Hilton, the defendant had direct control as a signatory of the account from which payments were made; that was materially different from a victim initiating the transfer.
3. The statutory deception offences reinforced that conclusion. They address dishonest conduct by which a victim is induced to make a payment. The prosecution’s case could therefore have been framed as a deception offence, but not as theft on these facts.
4. No substitute conviction was entered. Under section 3 of the Criminal Appeals Act 1968, substitution requires that the jury must have found facts proving the alternative offence. The absence of a direction on deception and the possibility that the defence would have been conducted differently were material. The prosecution had deliberately proceeded on theft rather than deception, partly to avoid reliance on the elderly victim’s evidence. The Court therefore declined to substitute a deception conviction, applying Graham and Others [1997] 1 Cr App R 302.
5. The renewed application for permission to appeal the other convictions was refused. The tenancy agreements falsely represented that a tenancy and rent obligation existed. The housing-benefit applications could themselves amount to representations that their contents were true. There was also evidence capable of showing that the mortgage representations about ownership and maintenance of the property were false. No valid criticism of the summing-up was established.

• Court of Appeal (Criminal Division) In [2003] EWCA Crim 3662, the court quashed the conviction for theft on count 1, declined to substitute a deception conviction, and refused renewed permission to appeal the remaining convictions.
• King’s Lynn Crown Court On 11 April 2003, His Honour Judge Curl convicted the appellant of theft, two forgery offences, two offences of dishonestly obtaining social security benefits, and obtaining services by deception.