Waters, R. v

An intention permanently to deprive is not established merely because property is taken or retained pending performance of a condition. Under section 6 of the Theft Act 1968, the jury must assess the nature and likely fulfilment of that condition. A condition that cannot be fulfilled, or cannot be fulfilled in the foreseeable future, may support the requisite intention. A condition readily capable of fulfilment in the near future may not. A conviction is unsafe where a misdirection prevents the jury from making that assessment and there is a real possibility of an acquittal on a proper direction.

The appellant was tried at Kingston-upon-Thames Crown Court for robbing Rhys Faoud of a mobile telephone and cigarettes. The prosecution case was that the items were taken during a confrontation involving the appellant and another man. There was evidence that the telephone would be returned if Dale Holloway agreed to speak to them.

The appellant was convicted and appealed. He challenged both the admission of his police interview and the jury direction on intention permanently to deprive under section 6 of the Theft Act 1968. The Court considered the latter ground first: whether the direction correctly addressed a taking subject to a condition for return.

1. Appeal allowed; conviction quashed. The judge’s direction treated an intention to return the telephone only upon Dale Holloway speaking to the appellant as necessarily capable of amounting to an intention permanently to deprive. That was an incorrect direction of law.

2. Section 6 of the Theft Act 1968 required a more fact-sensitive assessment. The Court applied the guidance drawn from Coffey [1987] Crim.L.R 498. If the return of property is conditional upon something that will not occur, or will not occur in the foreseeable future, an intention permanently to deprive may be established. Conversely, where the condition can readily be fulfilled in the near future, the jury may conclude that the necessary intention is absent.

3. The summing-up did not adequately explain that distinction. The jury might have concluded that an intention permanently to deprive existed even if Holloway could quickly be found and the telephone rapidly returned. There was a real possibility that, if properly directed, the jury would have acquitted. The Court therefore quashed the conviction and did not determine the separate challenge concerning exclusion of the appellant’s confession under sections 76 and 78 of the Police and Criminal Evidence Act 1984.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the conviction: [2015] EWCA Crim 402.
• Kingston-upon-Thames Crown Court: The appellant was convicted of robbery and received an 18-month detention sentence, suspended for two years, with supervision and compensation orders.