Briggs v R

Facts

The appellant's elderly relatives sold their house. She persuaded them to sign a letter authorising their conveyancers to use the proceeds of sale towards the purchase of another property. That property was registered in the names of the appellant and her father rather than the relatives. The money was transferred from the account of the relatives on their own authority. She was charged with theft of the credit balance.

History

Convicted of theft in the Crown Court; she appealed against conviction.

Issue

Whether a defendant appropriates a credit balance belonging to another, for the purposes of s.3 of the Theft Act 1968, where by deception she induces the owner to authorise its transfer, so that the transfer is effected by the owner's own act.

Held

Appeal allowed and the theft conviction quashed. The appellant had not appropriated the credit balance of the relatives, because the transfer was brought about by their own authorisation rather than by any act of hers in relation to the property.

Ratio

• Appropriation in s.3 of the Theft Act 1968 connotes an act by the defendant in relation to the property; where a victim, deceived into doing so, herself causes a payment from her account, the deceiver who merely procured that decision has not appropriated the credit balance, and the conduct is properly charged as a deception offence instead.

Key reasoning

• Gomez [1993] AC 442 established that consent of the owner does not prevent an appropriation, but it still requires an act of the defendant assuming a right of the owner over the property.
• The ordinary meaning of appropriation suggests a physical act rather than a more remote act triggering a payment by someone else; to treat the victim's own instruction as the defendant's appropriation would stretch the word too far.
• The case was distinguished from Hilton [1997] 2 Cr App R 445, where the defendant himself had authority over the account and gave the instruction that caused the transfer, which was an appropriation.
• The facts were the kind of case the deception offences, including obtaining a money transfer by deception under s.15A, were designed to cover after Preddy [1996] AC 815.

Where it fits in the module

In the property offences topic Briggs is read against Gomez and Hinks, which made appropriation almost coextensive with any dealing with property, even with consent. It shows the courts drawing a line based on who performs the act, and so feeds the debate about whether theft and deception or fraud remain properly distinct offences. Students use it to test the coherence of the Gomez approach when applied to bank credits.

Criticisms

• It is hard to reconcile with Gomez, where the owner also handed over the goods because of a deception, yet the deceiver was held to appropriate them.
• Drawing the line at whether the victim or the defendant presses the button makes liability for theft turn on the mechanics of payment rather than on the defendant's culpability.
• The suggestion that appropriation requires a physical act sits awkwardly with the theft of intangible property such as a credit balance, which cannot be physically dealt with at all.
• Since the Fraud Act 2006 the same conduct is plainly fraud by false representation, so the case shows how much of the case law on appropriation was driven by gaps in the deception offences.