No: 99/2043/Z3
Neutral Citation Number: [1999] EWCA Crim 2250 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
 
Royal Courts of Justice
The Strand
London WC2

Date: Friday 29th October 1999
 
B E F O R E :

LORD JUSTICE OTTON

MR JUSTICE POTTS

and

THE RECORDER OF LIVERPOOL
HIS HONOUR JUDGE DAVID CLARKE QC
(Acting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A

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THOMAS RAI

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Computer Aided Transcript of the Stenograph Notes of
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MR ROBERT COWLEY appeared on behalf of the APPELLANT
MR DAVID SECONDE appeared on behalf of the CROWN

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JUDGMENT

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Friday 29th October 1999
THE RECORDER OF LIVERPOOL:  On 10th March 1999, in the Crown Court at Birmingham, before His Honour Judge Alan Taylor, the appellant was to stand trial ‑ indeed a second trial ‑ on an indictment charging him with obtaining services by deception contrary to section 1(1) of the Theft Act 1978.  The particulars of offence, as amended, alleged that on or about 13th August 1997 he dishonestly obtained services from Birmingham City Social Services, namely building services, by deception, namely by falsely representing that the subject of the application, his mother, Mrs Punna Chand, was alive. Following and directly consequent upon a ruling by the trial judge before any jury had been empanelled, the defendant pleaded guilty to this charge, though only on a specific factual basis.  He appeals against his conviction, and in effect appeals against this ruling, by leave of the single judge.
      The issue before the trial judge and before this Court arises from the definition of the words "by deception", where they appear in section 1(1) of the 1978 Act, and this in turn involves consideration of the definition of that phrase contained in section 15(4) of the Theft Act 1968.
 
 By that subsection:
"...'deception' means any deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including a deception as to the present intentions of the person using the deception or any other person." 
The central issue before us was whether, on the facts of the present case, there was conduct capable of constituting that deception and in particular the circumstances in which an omission to act or silence can amount to such conduct.
      The facts alleged by the Crown were simple.  The appellant was the owner of a property, 20 Sandwell Road, Handsworth, Birmingham.  On about 7th June 1996, he applied to Birmingham City Council for a grant towards providing a downstairs bathroom at his room for the use of his elderly and infirm mother.  Following an assessment of her condition, the City Council approved a grant under the Housing Grants, Construction and Regeneration Act 1986 in the sum of a little over £9,500, and a firm of contractors was appointed to undertake the necessary building work on the council's behalf.  On 29th July 1997, the appellant was notified that this application had been approved.  Two days later, on 31st July, Mrs Chand died.
      Two weeks later, on 13th August 1997, the council, in the person of Mrs Bentley, unaware of the death of  Mrs Chand, attended the house and met the contractor who was to carry out the work.  The appellant was not present at that meeting.  At that meeting, the council and the builder signed a contract form, leaving the form at the property to be signed by the appellant in his capacity of owner of the house and applicant for this grant.  The builder subsequently collected from the property that document bearing a signature, but he did not know the identity of the person who handed it to him.
      The argument before the learned judge was based on the premise that this document was not signed by the appellant and that there was no evidence that he was ever aware of it.  It was actually his case that his wife had signed it without his knowledge.  However, the Crown sought to argue that the silence of the appellant in failing to notify the council of his mother's death itself constituted conduct within section 15(4) of the Theft Act 1968.  He accepted that he had remained silent, had not told the council of his mother's death at any time until after the building works were completed, but the contention on his behalf was that he had no legal or contractual duty to inform the council and that mere silence or inactivity could not constitute such conduct.  Thus, there had been no deception. 
      The learned judge was asked to give a ruling on this point before any evidence was called.  Thus, one important fact, which would have been in issue, had to be assumed in the appellant's favour as to the signature on the form: the assumption had to be made that he did not sign the form and had no knowledge of that document which had been left at his house.  This Court has to approach this issue on the same basis as the learned judge, namely that, after Mrs Chand died, the appellant did not tell the council that she had died but simply carried on about his ordinary business.
      The learned judge gave a reasoned judgment, deciding this issue in favour of the Crown and ruling that his silence in those circumstances did amount to conduct sufficient to constitute a deception on the local authority.  It seems to us that, in effect, he found it was capable of amounting to such conduct. Whether it did would have been, no doubt, an issue for the jury.
      The underlying facts which underpinned that finding were, not only that the appellant did not tell the council, but that ‑ as was undisputed ‑ this was his house and at all material times he lived there.  When, after the learned judge's ruling, the appellant pleaded guilty, he did so on the specific factual basis that his  only relevant conduct was his failure to inform the council of the death of his mother.  He did not acknowledge any other conduct on his part by which the council might have been deceived.
      The learned judge, in his reasoned ruling, based his decision principally on an analogy with the somewhat different facts of the House of Lords case of Ray v Sempers [1974] AC 370.  He accurately summarised the facts of that case in the following terms:
"Five students went to a Chinese restaurant intending to have a meal and pay for it.  After eating the main course, they decided not to pay for it but they remained where they were until the waiter went out of the room and then they ran from the restaurant.  The defendant was convicted by the justices of dishonestly obtaining a pecuniary advantage by deception, and the charge was that the defendant obtained for himself a pecuniary advantage, namely a meal, and evaded the debt by running out of the restaurant without paying." 
He went on:
"It was submitted that as he did not change his mind until after the meal had been consumed, that he did nothing to evade the debt.  By simply sitting there and then leaving the restaurant at a convenient moment, the House of Lords took the view that that was incorrect and that the transaction had to be regarded as a whole in that the defendant's conduct was a continuing representation of his present intention to pay." 
The relevant continuing conduct was staying in the restaurant; that was the basis for the finding by the majority in the House of Lords that there was sufficient conduct in that particular case to amount to  a deception.  The students had changed their minds about paying.  They did so whilst sitting at the table in the restaurant.  They continued to sit there for a time, and, in that sense, their conduct was continuing because they were then sitting there with their newly formed intention not to pay for their meals, thus falsifying their earlier implied representation that they would pay.  This, in the opinion of the House of Lords, amounted to sufficient conduct to satisfy that essential element of the offence.
      The basis in the present case of the learned judge's ruling was that this appellant's conduct was equivalent to that conduct on the part of those students, and the question for this Court is whether that was correct.
      Mr Cowley makes the point, cogently and clearly, that, in this case, there was no act or continuing act on the part of the appellant.  He submits that the appellant in the present case was not playing a similar role or occupying a similar role to that occupied by the students in the case of Ray v Sempers, but that there was no act identified as representing conduct by which the local authority were deceived.
      The learned judge held, however, at page 6D in his ruling, that by simply sitting there doing nothing and  allowing the work to be done, the appellant was committing a straightforward deception, because, as he was aware, the local authority were still of the mind that the mother would occupy the premises.  He was living there at all material times.  In the judgment of this Court, that, against the background of it being his home and he having made the application, was conduct sufficient to amount to conduct within the terms of section 15(4) of the 1968 Act.  In our judgment the approach of the learned judge was correct, albeit on the basis of a feature of this case, that it was his house and that he was living in it continuously, which was not apparent to this Court on our first reading of the papers.  But, on a common‑sense and purposive construction of the word "conduct", it does, in our judgment, cover positive acquiescence in knowingly letting this work proceed as the appellant did in the present case.
      The learned judge was also referred, more briefly, to the case of Firth 91 (1991) 91 Cr App R (S) 217, which is referred to both in Archbold and in Blackstone as a case in which the relevant deception was by omission rather than by positive conduct.  The facts of that case are summarised in Archbold quite briefly:
"The defendant was a consultant gynaecologist.  In consequence of his not telling a hospital that certain  patients were private patients, either he or those patients were not charged for certain tests done or for in‑patient treatment.  He was charged with four counts alleging evasion of a liability by deception, contrary to section 2(1)(c).  His conduct was found to have been deliberate and dishonest, but it was argued on appeal that there had to be some act of commission for the offence to be established.  This was rejected, the court saying that if it was incumbent on him to give the information to the hospital, and he deliberately and dishonestly refrained from doing so with the result that no charge was levied, the wording of the section was satisfied." 
      In that case, it was submitted that the counts were wrongly laid in law, in that the allegations to be proved required acts of commission whereas the evidence disclosed only acts of omission.  Lord Lane CJ dealt with the submission, but dealt with it only by referring to section 2 of the Act and did not in terms refer to the definition of deception contained in section 15(4).
      In the present case, the learned judge held ‑ correctly in the view of this Court ‑ that Firth did not assist him in the present problem, because the surgeon there had a specific contractual obligation to disclose the status of his patients and it was for that reason that his failure to do so did amount to continuing conduct.  But it does seem to us that the editor of Archbold makes an important additional point in paragraph 21‑348, where he points out that no reference was made to section 15(4) and it may be that the decision in Firth should not be taken as any general  authority for the proposition that mere silence can constitute a deception.
      That being said, however, we are satisfied that, in the present case, there was conduct capable of amounting to the deception alleged by the prosecution. Accordingly, the learned judge's ruling was, in our judgment, correct, and there is thus no basis for this Court to hold that the plea of guilty entered by the appellant is in any way wrong or that the conviction should be regarded as unsafe.  For those reasons, the appeal against conviction is dismissed.