Toleikis, R. v

An unnecessary averment in a handling indictment that goods belonged to a specified person does not invalidate a conviction where it is immaterial and, on the evidence, the ownership can in any event be established. Delivery of possession with an intention to give may complete an irrevocable gift.

An alternative fraud count need not be added where the existing handling count properly reflects the criminality alleged. Goods obtained by fraud may be treated as stolen goods for handling purposes under the Theft Act. The jury question may therefore remain whether the defendant dealt with the goods dishonestly.

The appellant was convicted at Southampton Crown Court of handling stolen clothing said to belong to Clothes Aid. The clothing had been deposited by householders in bags bearing a statement that their contents became Clothes Aid’s property and were to be collected only by authorised collectors.

The appellant maintained that he was engaged in a legitimate collection operation. The Crown alleged dishonest collection, storage and preparation of the clothing for disposal. On appeal, he contended that the Crown had not proved ownership by Clothes Aid, that some goods were still being handled in the course of theft, and that the judge should have added a fraud count or directed the jury differently.

1. Appeal dismissed. The unnecessary allegation that the clothing belonged to Clothes Aid did not impair either the indictment or the conviction. It was difficult to regard the allegation as material. In any event, the statement on the bags and the householders’ conduct supported the conclusion that they had delivered possession to Clothes Aid with an intention to give. On those facts, a completed gift had been made.

2. R v (on the application of) Ricketts v Basildon Magistrates' Court [2010] EWHC 2358 (Admin), concerning clothing left outside a charity shop, arose in materially different circumstances. The court neither considered its correctness nor treated it as governing the ownership issue.

3. The submission that the goods were still being handled in the course of theft failed. The overwhelming quantity of clothing had been stored in containers for a considerable period. It could not all have been collected on the day of the appellant’s arrest.

4. The judge was entitled to leave the handling count to the jury without adding a fraud count. At the material time the appellant was storing and preparing a large quantity of clothing for shipment. The count properly reflected that criminality. The jury’s straightforward task was to decide whether he acted dishonestly, as the Crown alleged, or honestly in reliance on the account he gave of his employment.

5. The direction that goods obtained by fraud could be treated as stolen goods for handling purposes accurately explained the Theft Act. There was no material deficiency in the summing-up.

• Court of Appeal (Criminal Division) Dismissed the appeal against conviction in [2013] EWCA Crim 600.
• Crown Court at Southampton The appellant was convicted by a jury on 8 June 2012 of handling stolen goods. He was sentenced in his absence on 31 August 2012. No appeal against sentence was before the Court of Appeal.