Clarke v CPS Sheffield

Where theft and obtaining by deception are charged as alternatives, a magistrates’ court should not convict on both unless each offence is proved on its distinct elements. Obtaining by deception requires proof of the deception alleged in the charge, including any representation said to have caused the victim to act to his detriment. If the magistrates are uncertain about that essential matter, the conviction for deception cannot stand. A separate theft conviction may remain valid where the evidence establishes dishonest appropriation with an intention permanently to deprive, even though the alleged deception is not proved.

Paul Clarke appealed by way of case stated against convictions by Barnsley Magistrates for theft and obtaining by deception. The prosecution had presented the two charges as alternatives, arising from the same payment for a car which was never delivered. The magistrates convicted on both charges but imposed sentence only for theft.

The central issue was whether a magistrates’ court could convict of both offences when they had been preferred as alternative charges. The court also considered whether any error affecting the deception conviction undermined the separate theft conviction.

1. Alternative charges. The appeal was allowed in part. The conviction for obtaining by deception was quashed. The conviction for theft was left undisturbed.
2. Deception charge. The alleged deception was that the appellant falsely represented that he had a car to sell and could deliver it. That allegation involved ingredients additional to those required for theft. The magistrates were uncertain whether the appellant had a car to sell and treated that issue as irrelevant, yet elsewhere found that he had tricked the complainant into believing that he had one. Their reasoning was ambivalent, inconsistent and legally erroneous. Their expressed doubt provided no proper basis for conviction of obtaining by deception.
3. Theft charge. Whether a car existed was irrelevant to the theft issue. The material question was whether, when the money was taken, the appellant honestly intended to deliver a car in return or to return the money. On a proper reading of the case stated, the magistrates had found that he lacked that honest intention and had dishonestly appropriated the money with intent permanently to deprive the complainant of it. The reasoning concerning deception therefore did not taint the theft conviction.
4. The court noted that magistrates may lack the Crown Court’s procedure for leaving an alternative charge on file. A stay for abuse of process might in some circumstances provide a similar result, but it was unnecessary to decide that issue because the deception conviction failed on the substantive reasoning recorded by the magistrates.

• High Court (Administrative Court): On appeal by way of case stated, the court quashed the conviction for obtaining by deception but upheld the conviction for theft.
• Barnsley Magistrates’ Court: Convicted the appellant of both theft and obtaining by deception, although the charges had been presented as alternatives, and sentenced him only for theft.