Practice and Procedure


PUBLISHED December 16, 2003

Where a victim caused a payment to be made in reliance on deceptive conduct by the defendant there was no "appropriation" by the defendant within s.3(1) Theft Act 1968.The defendant (B) appealed against her conviction for theft and applied for permission to appeal against conviction on other counts. B was the great niece of Mr and Mrs Reid who were in their 90s and late 80s respectively and wanted to move house to be near to B. The sale of the Reids' house was handled by licensed conveyancers. B sent the conveyancers a letter of authority signed by the Reids instructing them to send ?49,950 of the proceeds of sale to the solicitors acting for the vendors of the house being purchased. After the sale those instructions were carried out and the sum of £49,950 was used to complete the purchase of the new house. Title in the latter property was transferred to and subsequently registered in the name of B and her father. B was charged with theft in relation to the transfer of the sum of £49,950 of the proceeds of sale of the Reids' house. B argued that there was no "appropriation" of that sum as required by s.3(1) Theft Act 1968. There was evidence that the Reids' consent to the transfer was induced by fraud as they believed that the money would be used to ensure that the new house was conveyed to them. The trial judge directed the jury that if they were sure the Reids' consent was induced by fraud then there could be an appropriation notwithstanding their consent to the transfer. B was convicted. On appeal B submitted that the trial judge's direction was wrong, the payment of £49,950 could not amount to an "appropriation" as it was made in accordance with, and as a result of, the Reids' instructions. The Crown submitted that the Court of Appeal should exercise its power under s.3 Criminal Appeals Act 1968 to substitute a verdict of guilty of a deception offence if the conviction for theft was quashed.HELD: (1) Where a victim caused a payment to be made in reliance on deceptive conduct by the defendant there was no appropriation by the defendant (Naviede (1997) Crim LR 665 applied). No case had been cited where it had been held that an appropriation occurred where the relevant act was committed by the victim as a result of deception. The word "appropriation" in s.3(1) Theft Act 1968 connoted a physical act rather than a more remote action triggering the payment that gave rise to the charge. The appeal against the conviction on count 1 was therefore allowed. (2) A verdict of guilty of a deception offence could not be substituted because the prosecution had made a deliberate decision not to charge deception. (3) Permission to appeal convictions for forgery, dishonestly obtaining social security benefits and obtaining services by deception was refused.Appeal allowed.

[2003] EWCA Crim 3662