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R v Briggs [2004] Crim LR 495 Court of Appeal

The appellant had persuaded her great aunt and great uncle (Mr & Mrs Reid) to move closer to her so that she could look after them. They sold their house and the appellant found a house for them to purchase. The appellant wrote a letter of authority instructing the conveyancers acting in relation to the sale, to send the proceeds of sale to the conveyancers acting in relation to the purchase. The letter of authority was signed by the Reids. The new house however, was purchased in the appellant's name against the wishes of the Reids. The appellant was convicted of theft and appealed on the grounds that an appropriation had not taken place.

Held:

The appeal was allowed. The conviction for theft was substituted with a conviction for deception.

Silber J:

"We are fortified in coming to that view by three further factors. First, no case has been cited to us where it has been held that an "appropriation" occurs where the relevant act is committed by the victim albeit as a result of deception. Second, if Mr. Barry was correct, there would be little need for many deception offences as many acts of deceptive conduct would be covered by theft but it is noteworthy that the Theft Act 1968 (as amended) contains deception offences to deal with the case where a defendant by deception induces a person to take a step which leads to the wrongdoing of gaining property by deception (section 15) or obtaining a money transfer by deception (section 15A) or obtaining a pecuniary advantage (section 16). Third, we have already referred to the explanation of the word "appropriation" in section 3(1) of the Theft Act 1968 and it is a word which connotes a physical act rather than a more remote action triggering the payment which gives rise to the charge. The Oxford English Dictionary defines "appropriation" as "to take possession for one's own, to take to oneself". It is not easy to see why an act of deceiving an owner to do something would fall within the meaning of "appropriation".

Indeed, we consider that in this case the appropriate charge might have been for an offence of deception. Our conclusion is that the conviction on count 1 must be quashed as there was no appropriation by the appellant of £49,950."
 
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