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''R v Hinks''
UKHL_53
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UKHL 53
is an English case heard by the Judicial functions of the House of Lords">House of Lords The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom. Membership is by appointment, heredity or official function. Like the House of Commons, it meets in the Palace of Westminst ...
on appeal from the Court of Appeal of England and Wales. The case concerned the interpretation of the word "appropriates" in the
Theft Act 1968 The Theft Act 1968c 60 is an Act of the Parliament of the United Kingdom. It creates a number of offences against property in England and Wales. On 15 January 2007 the Fraud Act 2006 came into force, redefining most of the offences of deceptio ...
. The relevant statute is as follows: * Section 1 provides: "(1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it..." * Section 3 provides: "(1) Any assumption by a person of the rights of an owner amounts to an appropriation..." The case established that in the English law of theft, the acquisition of an indefeasible
title A title is one or more words used before or after a person's name, in certain contexts. It may signify either generation, an official position, or a professional or academic qualification. In some languages, titles may be inserted between the f ...
to
property Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of property may have the right to consume, alter, share, r ...
is capable of amounting to an appropriation of property belonging to another for the purposes of the Theft Act 1968. Therefore, a person can appropriate property belonging to another where the other person makes him an indefeasible
gift A gift or a present is an item given to someone without the expectation of payment or anything in return. An item is not a gift if that item is already owned by the one to whom it is given. Although gift-giving might involve an expectation ...
of property, retaining no proprietary interest or any right to resume or recover any proprietary interest in the property.


Facts

In 1996 Miss Hinks was friendly with a 53-year-old man, John Dolphin, who was of limited
intelligence Intelligence has been defined in many ways: the capacity for abstraction, logic, understanding, self-awareness, learning, emotional knowledge, reasoning, planning, creativity, critical thinking, and problem-solving. More generally, it can be ...
. She was his main
carer A caregiver or carer is a paid or unpaid member of a person's social network who helps them with activities of daily living. Since they have no specific professional training, they are often described as informal caregivers. Caregivers most commo ...
. During 1996 Mr Dolphin withdrew around £60,000 from his
building society A building society is a financial institution owned by its members as a mutual organization. Building societies offer banking and related financial services, especially savings and mortgage lending. Building societies exist in the United Kingdo ...
account, which was deposited in Miss Hinks's account. In 1997 Hinks was charged with theft. During the
trial In law, a trial is a coming together of parties to a dispute, to present information (in the form of evidence) in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court. The tribunal ...
, Mr Dolphin was described as being naïve and trusting and having no idea of the value of his assets or the ability to calculate their value. However, it was said that he would be capable of making a gift and understood the concept of
ownership Ownership is the state or fact of legal possession and control over property, which may be any asset, tangible or intangible. Ownership can involve multiple rights, collectively referred to as title, which may be separated and held by different ...
. Mr Dolphin was capable of making the decision to divest himself of money, but it was unlikely that he could make this decision alone. The defendant's argument was that the moneys were a gift from Mr Dolphin to Hinks, and that given that the title in the moneys had passed to her, there could be no theft. She appealed to the Court of Appeal on the grounds, '' inter alia'', that since she acquired a perfectly valid gift, there could not be an appropriation. The Court of Appeal rejected this ground of appeal, stating that the fact there has been made a valid gift is irrelevant to the question of whether there has been an appropriation. Indeed, it held that a gift may be evidence of an appropriation. Rose LJ gave the following reasons: * Section 1 of the Theft Act 1968 does not require that there has been no gift, but merely that there has been an appropriation. * Such an approach would be inconsistent with the cases of '' Lawrence v Metropolitan Police Commissioner'' 972A.C. 626 and '' R v. Gomez''
993 Year 993 ( CMXCIII) was a common year starting on Sunday (link will display the full calendar) of the Julian calendar. Events By place Europe * Spring – The 12-year-old King Otto III gives the Sword of Saints Cosmas and Damian ...
A.C. 442. * The state of mind of the donor is irrelevant, as per
Lord Browne-Wilkinson Nicolas Christopher Henry Browne-Wilkinson, Baron Browne-Wilkinson, PC (30 March 1930 – 25 July 2018) was a British judge who served as a Lord of Appeal in Ordinary from 1991 to 2000, and Senior Lord of Appeal in Ordinary from 1998 to 2000. ...
(with whom Lord Jauncey agreed) in ''R v. Gomez''
993 Year 993 ( CMXCIII) was a common year starting on Sunday (link will display the full calendar) of the Julian calendar. Events By place Europe * Spring – The 12-year-old King Otto III gives the Sword of Saints Cosmas and Damian ...
A.C. 442. It was said that the authorities maintain a strong distinction between the separate ingredients of
dishonesty Dishonesty is to act without honesty. It is used to describe a lack of probity, cheating, lying, or deliberately withholding information, or being deliberately deceptive or a lack in integrity, knavishness, perfidiosity, corruption or treacherou ...
and appropriation. The defendant appealed to the House of Lords.


Ruling

The court ruled by a majority of 3–2 in favour of the respondent; namely, that the acquisition of an indefeasible
title A title is one or more words used before or after a person's name, in certain contexts. It may signify either generation, an official position, or a professional or academic qualification. In some languages, titles may be inserted between the f ...
to
property Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of property may have the right to consume, alter, share, r ...
is capable of amounting to an appropriation of property belonging to another for the purposes of the Theft Act 1968.
Lord Steyn Johan van Zyl Steyn, Baron Steyn, PC (15 August 1932 – 28 November 2017) was a South African-British judge, until September 2005 a Law Lord. He sat in the House of Lords as a crossbencher. Early life and education Steyn was born in Stell ...
gave the sole substantive judgment for the majority (with whom Lord Slynn of Hadley and
Lord Jauncey of Tullichettle Charles Eliot Jauncey, Baron Jauncey of Tullichettle, PC (8 May 1925 – 18 July 2007) was a British judge and advocate. He was often praised as one of the finest legal minds of his generation in Scotland, and his legal opinions - both as a pract ...
agreed). Lord Hutton and Lord Hobhouse of Woodborough gave dissenting judgments.


Lord Steyn

Lord Steyn stated that the starting point must be the words of the
Theft Act 1968 The Theft Act 1968c 60 is an Act of the Parliament of the United Kingdom. It creates a number of offences against property in England and Wales. On 15 January 2007 the Fraud Act 2006 came into force, redefining most of the offences of deceptio ...
, as interpreted by the House of Lords in previous decisions. He cited three House of Lords cases: * '' Lawrence v Metropolitan Police Commissioner'' 972A.C. 626, which held that in a
prosecution A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the Civil law (legal system), civil law inquisitorial system. The prosecution is the legal party responsible for presenting the ...
for theft it is unnecessary to prove that the taking was without the owner's
consent Consent occurs when one person voluntarily agrees to the proposal or desires of another. It is a term of common speech, with specific definitions as used in such fields as the law, medicine, research, and sexual relationships. Consent as und ...
. * '' R v Morris'' 984A.C. 320, in which Lord Roskill's judgment conflicted with that of '' Lawrence v Metropolitan Police Commissioner''. He stated that "the concept of appropriation in my view involves not an act expressly or impliedly authorised by the owner but an act by way of adverse interference with or usurpation of those rights." 984A.C. 322D This disparity was resolved in the following case: * '' R v Gomez''
993 Year 993 ( CMXCIII) was a common year starting on Sunday (link will display the full calendar) of the Julian calendar. Events By place Europe * Spring – The 12-year-old King Otto III gives the Sword of Saints Cosmas and Damian ...
A.C. 442, where the court held by a majority ( Lord Lowry dissenting) that there can be an appropriation where that which is alleged to be stolen passes to the defendant with the consent of the owner, but that consent has been obtained by a false representation. The court added that such a passing of property need not involve an element of adverse interference with, or usurpation of, some right of the owner. Lord Roskill's comments in ''R v Morris'' (cited above) were disapproved. His Lordship noted that the case law interprets section 3(1) of the Theft Act 1968 by treating "appropriation" as a neutral word comprehending "any assumption by a person of the rights of an owner". In other words, it is immaterial whether the act was done with the owner's consent or authority. His Lordship then turned to the appellant's arguments.
Counsel A counsel or a counsellor at law is a person who gives advice and deals with various issues, particularly in legal matters. It is a title often used interchangeably with the title of '' lawyer''. The word ''counsel'' can also mean advice give ...
had argued that the effect of the decisions in ''R v Lawrence'' and ''R v Gomez'' was to reduce the
actus reus (), sometimes called the external element or the objective element of a crime, is the Law Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the ("guilty mind"), produces criminal liability in t ...
of theft to a "vanishing point". Lord Steyn was unconvinced by these arguments and maintained that the House of Lords had not overlooked the consequences in its previous decisions. His Lordship was motivated by a concern that if the law is restated by adopting a narrower definition of appropriation, the outcome is likely to place beyond the reach of the criminal law dishonest persons who should be found guilty of theft. Counsel for the defendant also highlighted the conflict between civil and
criminal law Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal ...
that would result from a broad interpretation of the word "appropriates", along with the "grotesque and absurd" results that such a decision would allow. Lord Steyn, however, accepted that in a practical world there would always be a disharmony between the two systems and noted that in this disharmony it is not necessarily the criminal law that is defective. He therefore declined to depart from the rulings in ''R v Gomez'' and ''R v Lawrence''. His Lordship pointed out that the mental requirements of the law of theft offer adequate protection from the
injustice Injustice is a quality relating to unfairness or undeserved outcomes. The term may be applied in reference to a particular event or situation, or to a larger status quo. In Western philosophy and jurisprudence, injustice is very commonly—but n ...
that would otherwise result from a broad interpretation of the word "appropriates". For these reasons, Lord Steyn rejected the appellant's counsel's argument that the law as expounded in ''R v Gomez'' and ''R v Lawrence'' must be qualified to say that there can be no appropriation unless the other party (the owner) retains some proprietary interest, or the right to resume or recover some proprietary interest, in the property. He also declined to accept the counsel's alternative argument that "appropriates" should be interpreted as if the word "unlawfully" preceded it.


Lord Hutton

Lord Hutton gave one of the two dissenting judgments. The other was made by Lord Hobhouse. His Lordship was in agreement with Lord Steyn as to whether there had been an appropriation. Although not directly relevant to the issue put before the court, he then went on to consider the element of dishonesty. He held that it was contrary to
common sense ''Common Sense'' is a 47-page pamphlet written by Thomas Paine in 1775–1776 advocating independence from Great Britain to people in the Thirteen Colonies. Writing in clear and persuasive prose, Paine collected various moral and political ar ...
that a person who receives property as a gift could be said to be acting dishonestly, regardless of the moral reprehensibility of accepting it. He argued that this was recognized by Section 2(1)(b) of the Theft Act 1968, which states that a person’s appropriation of property belonging to another is not to be regarded as dishonest if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it. Consequently, said Lord Hutton, a person's appropriation of property belonging to another should not be regarded as dishonest if the other person actually gives the property to him. His Lordship drew further support for this argument from Viscount Dilhorne’s judgment in '' R v Lawrence'', and that of Pill LJ in '' R v Mazo''
997 Year 997 ( CMXCVII) was a common year starting on Friday (link will display the full calendar) of the Julian calendar. Events By place Japan * 1 February: Empress Teishi gives birth to Princess Shushi - she is the first child of the ...
2 Cr App R 518. Lord Hutton considered whether a defendant should be guilty by virtue of contractual vitiating factors unknown to him at the time, which render the contract void or voidable, and which have the effect that there is no valid transfer of property to the defendant. While his Lordship agreed that such contractual principles should be confined to their own spheres and that criminal liability should not hinge upon them, he stated that where the mental incapacity of the donor is concerned it is necessary for the
jury A jury is a sworn body of people (jurors) convened to hear evidence and render an impartial verdict (a finding of fact on a question) officially submitted to them by a court, or to set a penalty or judgment. Juries developed in England ...
to consider that matter. He held that the defendant could only be guilty if (1) the donor did not have the mental capacity to make a gift and (2) the donee knew of this incapacity. He was also of the view that the conclusions of the court in '' R v Mazo'' and '' R v. Kendrick and Hopkins''
997 Year 997 ( CMXCVII) was a common year starting on Friday (link will display the full calendar) of the Julian calendar. Events By place Japan * 1 February: Empress Teishi gives birth to Princess Shushi - she is the first child of the ...
2 Cr App R 524 could be reconciled with this principle. His Lordship held that allowing the acceptance of a valid gift in these circumstances to be dishonest would also be wrong since it would link the issue of mental incapacity to what ordinary and decent people would regard as dishonest. He thought that these two components should be separate and distinct: if the donor is found to be mentally capable then the defendant is not guilty, as there has been a valid gift; however, if the donor is found to be mentally incapable so that there is not a valid contract and transfer of property, then the defendant should only be guilty if what the defendant did was dishonest by the standards of ordinary decent people and the defendant realised this. He held that the same principle should apply even where the vitiating factor was something else:
undue influence Undue influence (UI) is a psychological process by which a person's free will and judgement is supplanted by that of another. It is a legal term and the strict definition varies by jurisdiction. Generally speaking, it is a means by which a per ...
or
duress Coercion () is compelling a party to act in an involuntary manner by the use of threats, including threats to use force against a party. It involves a set of forceful actions which violate the free will of an individual in order to induce a de ...
, for example. Lord Hutton therefore allowed the appeal and held that their convictions should be quashed. Lord Hobhouse concurred.


See also

*
English criminal law English criminal law concerns offences, their prevention and the consequences, in England and Wales. Criminal conduct is considered to be a wrong against the whole of a community, rather than just the private individuals affected. The state, i ...
* List of United Kingdom House of Lords Cases *
Theft Theft is the act of taking another person's property or services without that person's permission or consent with the intent to deprive the rightful owner of it. The word ''theft'' is also used as a synonym or informal shorthand term for some ...


References

{{reflist


External links


Full text of judgment
H 2000 in British law House of Lords cases 2000 in case law