B e f o r e :
LORD JUSTICE HENRY
MR JUSTICE DOUGLAS BROWN
and
MR JUSTICE ASTILL
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| | REGINA
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| | - and -
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| | IAN JAMES DYKE
&
DEBORAH BETTY MUNRO
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
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A McGeorge Esq (instructed for the Appellant Dyke)
P Fortune Esq (instructed for the Appellant Munro)
N Daly Esq (instructed for the Respondent)
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Judgment
As Approved by the Court
Crown Copyright ©
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Lord Justice Henry:
This is the judgment of the Court. On 1st March 2001 in the Crown Court at Oxford after a trial lasting approximately two working weeks, the appellants were convicted of theft and sentenced as follows:
Dyke (Count 3) 15 months’ imprisonment
Munro (Counts 1, 2 & 3) 30 months’ imprisonment on each count concurrent
Dyke was acquitted on Count 1 and no verdict was taken in respect of alternative Count 4.
They now appeal against conviction and sentence by leave of the Single Judge.
The basic facts are these. In 1996 the Hands of Hope Children’s Cancer Fund was registered with the Charity Commission. Its objects included the raising of funds for the relief of children suffering from leukaemia and other forms of cancer. Money was raised by street collections. From November 1997 Munro became a trustee. Dyke was appointed a trustee in early 1998. The charity had a bank account with Lloyds and between 5th January 1998 and 24th December 1998 just over £15,000 was paid into it. As a result of the methods used by one collector in February 1998 and by two others in October 1998, the activities of the charity came to the attention of the police. It was the prosecution’s case that there were a “large” number of collections made on behalf of the charity, which yielded “substantial sums” of money; of which a “... significant part of the total ...” did not reach the charity bank account, and the two appellants and a third person “Steve” had taken the money. The three counts reflected different periods. The prosecution were not in a position to prove how many collections there had been, nor how much had been collected. The defence claimed the prosecution had in the event failed to prove its case: their case was they were incompetent, but they did not steal, and were not dishonest.
Essentially, the Crown’s allegation was that a large sum of money was collected for the charity in the collection tins, and only a small percentage of that went into the charity’s bank account, and/or was otherwise satisfactorily accounted for. The three counts on the indictment of which one or other appellant was convicted each marked a different period of time. But the particulars of the offence in each were that each appellant “... stole money belonging to person or persons unknown”.
The Crown clearly had doubts as to the form of the indictment. First they considered a conspiracy between the two appellants to defraud the public. But for fear of one of the two conspirators being acquitted, with the necessary acquittal of the other conspirator, they abandoned this course because of “practical difficulties”. Then they had in mind to charge the defendants with theft from the charity. But we are told that they were concerned at the concept of the appellants stealing from themselves, as trustees. So the final form of the indictment alleged that the appellant in question “... stole monies belonging to person or persons unknown”.
Mr Daly for the Crown confirms that what he had in mind by “... person or persons unknown” was the individual member of the public putting his money into the charity’s collection box. His view of the case was that the men and women collecting for this charity were the “innocent agents” of the two appellants (and another man not tried with them) who intended to defraud the charity of all collections made. So the theft was committed by the appellants through the medium of honest collectors. The only evidence of a dishonest collector related to the appellant Dyke, who in a witness statement said that he, when collecting, used to keep £3 out of every £10 collected. This was the subject of Count 4, an alternative to Count 3 which followed the pattern of charging him with the theft of all, not part, of the sums collected. This the judge rather glossed over in his summing-up:
“It is said that the money belonged “to person or persons unknown”. The prosecution say that it was the public who put the money in. If the property did not belong to the person who is said to have taken it that is really sufficient. You need not trouble yourself too much about worrying to whom it belonged.”
We do not agree with that analysis, nor do we subscribe to the judge’s expressed insouciance as to whether the offence charged reflects the facts. We believe that both at common law and by statute when a person who collects money for a charity is subject to an obligation to account for money by reason of the donor’s intention to give money to the charity, that imposes a trust, and to misappropriate that money is to take property which belongs to the beneficiaries of that trust, ie the charity. Section 5(3) of the Theft Act, 1968, so far as is relevant, reads:
“(3) Where a person receives property ... on account of another, and is under an obligation to the other to retain and deal with that property ... in a particular way, the property ... shall be regarded (as against him) as belonging to the other.”
So the collector of money from the public receives that money subject to the charitable trust and shall treat the money collected as belonging to the beneficiaries of that charity. Accordingly, in our judgment property in the money passes from the donor member of the public to the charity when that money is put in the collecting tin. It is then stolen by whoever acts in a way inconsistent with the charity’s ownership of that money. But it is not stolen from the donor public - it was the charity’s the moment it was placed in the collecting box.
The importance of the form of the indictment alleging that the theft was from the donor members of the public when in fact any theft would have been from the beneficiaries of the charity is the point of principle that no-one should be convicted of an offence with which he has not been expressly or impliedly charged (see Professor John Smith [1997] CrLR, commenting at 438 - 439). No application to amend was made, and it is now too late.
We considered whether this was a case where section 3 of the Criminal Appeal Act, 1968 gives us the power to substitute a conviction for an alternative offence. Section 3(1) and 3(2) read:
“(1) This section applies on an appeal against conviction, where the appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty on the other offence.
(2) The Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of the other offence, and pass such sentence in substitution for the sentence passed at the trial as may be authorised by law for the other offence, not being a sentence of greater severity.”
But it is well-established that in considering whether the jury could have found the defendant guilty of some other offence, the leading case of R -v- Wilson [1984] AC 242 HL
“... does not authorise the court to step outside the ingredients of the offence in the indictment.”
So no such substitution is possible. Nor does it seem to us (although we are prepared to hear submissions on the matter) that this is a case where we could order a retrial under section 7 of the Criminal Appeal Act, 1968.
Accordingly, this appeal must be allowed and the convictions quashed.
