Trinity Criminal and Regulatory barrister, Mairi Clancy, instructed by DJMS Solicitors, represented a serving Northumbria Police officer who was charged with theft.
After less than 30 minutes of deliberations, the jury at Newcastle Crown Court returned a unanimous verdict of not guilty.
The police officer, who had served in the force for 14 years, had been overpaid wages having submitted a digital request to reduce her hours by 50%.
The online request was not responded to by the officer’s senior in command, which meant payroll was not updated with the reduced working hours and she continued to be paid for hours she had not worked.
The defence case was that there had been no dishonesty or intention to permanently deprive the police force of the money. It was the defendant who brought the error to the attention of management, and she had since paid back every penny that had been paid in error.
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Below is a discussion of the relevant legal principles:
LAW
The essential ingredients for theft are set out in section 1 of the Theft Act 1968. They are:
- Appropriation
- Of property
- Intention to permanently deprive
- Dishonesty
Theft by omission?
As a matter of law, receiving property (such as money) by mistake does place an obligation on the person receiving the property to restore it to the person it belongs to. See section 5(4) Theft Act 1968:
(4)Where a person gets property by another’s mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds
And indeed, case law confirms that it is open to a jury to convict a person who receives property by mistake, see for example:
R v Gilks [1972] 1 WLR 1341.
Gilks placed a bet on a horse called “Fighting Scott”. The race was won by a horse called “Fighting Taffy”. The bookie mistakenly believed that Fighting Scott had won, and therefore paid Gilks accordingly (over £100). Gilks knew the bookie had made an error but accepted the money anyway. He was prosecuted and convicted of theft. He appealed but his conviction was upheld by the Court of Appeal; where a mistake resulted in the overpayment of a sum of money, the person accepting the overpayment with knowledge of the mistake was guilty of theft and, accordingly, the defendant had committed the offence.
Similarly, in A-G Ref (No 1 of 1983) [1985] QB 182, the defendant was a policewoman who was mistakenly paid £74 in her wages by direct debit in her bank account. Her employer made no demand for the repayment. There was evidence that the appellant knew of the mistake and said nothing.
It was held that subject to the Crown proving dishonesty and that there had been an appropriation the necessary ingredients for theft were there:
(i) the debt due to R from her bank was a chose in action and therefore capable of being stolen;
(ii) as R had clearly got the money by way of another's mistake, she had been under an obligation to restore it as provided in the Theft Act 1968 s.5(4);
(iii) the chose in action was property belonging to the police as soon as R realised that it was in her bank account;
(iv) satisfactory proof that R had no intention of making restoration to the police would be proof of an intention permanently to deprive.
And so:
Subject to proof of an appropriation and of dishonesty a person who does not repay to her employer money mistakenly credited to her bank account may be guilty of theft.
The Crown must also prove the defendant intended to permanently deprive the owner of the property.
Dishonesty
The case of Ivey v Genting Casinos (UK) Ltd (trading as Crockfords Club) [2017] UKSC 67; [2018] 1 Cr. App. R. 12, reinvented the wheel in terms of the legal test for dishonesty.
Ivey was affirmed in Barton (David) [2020] EWCA Crim 575; [2020] 2 Cr. App. R. 7 – a five member Court of Appeal.
So, the test for dishonesty is:
(a) what was the defendant’s actual state of knowledge or belief as to the facts; and
(b) was their conduct dishonest by the standards of ordinary people?
Intention to permanently deprive
See section 6 of the Theft Act 1968:
(1) A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.
It is the intention at the time of appropriation that is to be considered, and that is where the knowledge and dishonesty of the person “appropriating” the property becomes important and a matter for the Crown to prove.