Gimbert v The Queen

Land is excluded from theft under section 4(2) of the Theft Act 1968 unless an express statutory exception applies. The exception for a person authorised by power of attorney requires actual authority. It does not extend to a person who merely purports, or believes himself, to be authorised under a void power of attorney.

A criminal court should not enlarge that exception by implication. Prosecutors should ordinarily consider other available offences where dishonest dealings with land do not fall within the statutory theft exception.

John Gimbert was convicted at the Crown Court at Stoke-on-Trent of theft of a house belonging beneficially to his cousin, Janette Trim. The prosecution alleged that he dishonestly caused its transfer to his son while she lacked capacity. The count was charged under section 1(1) of the Theft Act 1968.

On appeal, John contended that land could not be the subject of theft because the purported enduring power of attorney was void and he was therefore not authorised by it for section 4(2)(a). David Gimbert separately renewed his application for leave to appeal against his conviction for conspiracy to defraud, challenging the rejection of a submission of no case to answer.

1. John Gimbert’s appeal was allowed. His conviction on Count 2 was quashed. Land is generally excluded from the concept of property capable of being stolen by section 4(2) of the Theft Act 1968. The charge could therefore stand only if one of its express exceptions applied.

2. The Crown relied solely on section 4(2)(a), which applies where a person is authorised by power of attorney to dispose of another’s land and appropriates it in breach of the confidence reposed in him. On the prosecution case, Janette lacked capacity when she purported to execute the enduring power of attorney. It was consequently null and void, and John was not authorised by it.

3. The court rejected the proposed construction that would extend the exception to a person who purported to be authorised, or believed himself authorised. Those additional words could not be read into an express criminal provision. The fact that Janette herself executed the transfer, rather than John acting under the purported power, was a further difficulty for the prosecution case.

4. The court did not decide the separate issue of appropriation. Although the prosecution had relied on Hinks [2001] 2 AC 241, and the court noted the difficulties discussed in Darroux [2018] EWCA Crim 1009, that issue was unnecessary once the statutory land exception failed.

5. David Gimbert’s renewed application was refused. There was evidence from which a properly directed jury could find an agreement to defraud and could assess dishonesty. The Recorder’s refusal of the no-case submission disclosed no error or irrationality.

1. Court of Appeal (Criminal Division): John Gimbert’s appeal against his Count 2 theft conviction was allowed and that conviction was quashed. David Gimbert’s renewed application for leave to appeal against conviction was refused.

2. Crown Court at Stoke-on-Trent: At the first trial, John Gimbert was convicted of Count 2 and other theft counts. At a retrial, John and David Gimbert were convicted of conspiracy to defraud.