When is Theft not Theft? When it’s fraud

A thief is not necessarily a fraudster, and a fraudster is not necessarily a thief. The difference may be pretty clear to most criminal practitioners, but it wasn’t so easy to distinguish for a handful of legal practitioners in a recent case which reached the Court of Appeal.

The appellant in Darroux v The Crown [2018] EWCA Crim 1009 was a senior member of staff, and very trusted. She managed a housing association charity which ran a residential care home for elderly people. In addition to her usual working hours, she was entitled to claim overtime and staff cover, as well as payment in lieu of holiday. The way her claims for payment were made were patchy and the evidence limited – not helped by changes in staff, and the involvement of an external company providing payroll services.

Following a breakout of Legionella at the care home, a report by the Care Quality Commission highlighted various administrative shortcomings within the Housing Association's operations, and the appellant was given notice of dismissal. A financial audit followed, the upshot of which a claim was made by the Housing Association that the appellant had defrauded the charity by submitting falsely inflated overtime/on call claims and claims in lieu of holiday entitlement to the value of £49,465.

What were the charges?
She was charged with nine counts of theft. However, she denied making any dishonest submission of claims for payment. She said she had been entitled to all the payments made to her, and her claims for payment were properly approved and processed. She was convicted of six counts, and sentenced to 16 months’ imprisonment, and she appealed.

Giving judgment, Davis LJ commented on the particulars of each count and said these “straightaway should have set alarm bells ringing. No one had ever suggested that the appellant had stolen cash in a till or in a safe. The ‘monies’ in question related to the Housing Association's (in credit) bank account. While in lay terms it is commonplace to talk of money in the bank, it is in legal terms elementary that a bank account constitutes a chose in action, representing the debt due from the bank to the account-holder. So on any view the counts were incorrectly particularised”.

The explanation by counsel for the prosecution that theft was the simpler and "more appropriate" charge – even though he conceded that matters could have been charged as fraud under the Fraud Act 2006 - was, said David LJ, “puzzling as it is unsatisfactory”.

What did the Court of Appeal decide?He set out the relevant law on theft, and fraud under sections 1 and 2 of the Fraud Act and associated case law. Notably, no sufficient facts were found to establish appropriation belonging to another for the purposes of theft. On the facts, Davis LJ ruled that the charges were not properly framed in theft, and that this was a clear potential case of fraud by misrepresentation. But that was not charged. The convictions were therefore quashed.

What does this mean?
This is an important case highlighting what should, arguably, have been a clear case of what the appropriate charges should have been on the facts. Criminal practitioners should note the court’s approach to differentiating between theft and fraud, particularly its analysis of appropriation, and how this was applied to the facts in this case.

 

 

Back to the SOLICITORS group News

Media Centre

“The Solicitors Group online directory is an established and respected channel for legal professionals, meaning I can talk to my existing and future customers about products and services both quickly and easily.”

Carole Hatton
Marketing Manager
Landmark Information Group

“Reaching our niche market can sometimes be challenging, however we find promoting our legal training courses on www.thesolicitorsgroup.co.uk an excellent way of contacting both existing and new customers. The service we receive from The Solicitors Group is both professional and relevant to our core activities and we would recommend their services to others.”

Euromoney

“I must say that to date we have been very pleased with the referrals we are getting from your site.”

Paul West
Orchid Cellmark

“The Newsdesk feature on www.thesolicitorsgroup.co.uk is ideal for us. Its prominent location on the site provides a great platform to communicate key messages to existing and potential clients.”

Neil Phillips
Marketing Manager
Countrywide Legal Indemnities

"We are very happy with the referrals we are getting from The Solicitors Group web-site."

C.A. Bishop
Technical Director
Wickham Laboratories Ltd

“We received 419 click-throughs to our site from advertising with www.thesolicitorsgroup.co.uk”

Legal Prospects

“Putting myself in my potential client's shoes, I consider www.thesolicitorsgroup.co.uk to offer perhaps the clearest and most user-friendly listing of expert witnesses, especially in its choice of index terms.”

Ivan Vince
ASK Consultants

“The banner ad looks great”

Samantha Dawson
Director
The Bundle Business Limited

“The Solicitors Group has been fantastic in helping us to raise awareness about bowel cancer, which kills 16,000 people every year in the UK. Bowel Cancer UK aims to save lives by raising awareness of bowel cancer, campaigning for best treatment and care and providing practical support and advice. Without the support of organisations such as the Solicitors Group we would be unable to carry out this vital work. We are very grateful to the team at the Solicitors Group for their support and assistance.”

Tamara Matthews
Legacy Officer
Bowel Cancer UK

“As a result of Law London, we have registered 208 new companies/firms to the website, generating £20,797 GWP to date, as well as reinforcing our presence in this very profitable marketplace.”

Aviva

“The event was well put together and executed, and the traffic of potential customers for us was high. We had a number of enquiries regarding our services after the event and we feel our attendance there was important to our overall brand exposure. We feel a Law event of this size without Euromoney Legal Training present could potentially be hurtful to us as a business. We would recommend you to attend and shall ourselves be there again in 2008.”

Euromoney

“Many thanks for the prompt service.”

Martin Gibbs MBE
Director / Investigator
Griffin Forensics Ltd

“A targeted email to key customers is an invaluable method of communication, endorse this with the Solicitors Group branding, relevant editorial content and you have created a winning combination! We look forward to reading the next edition.”

Carole Hatton
Marketing Manager
Landmark Information Group

“Talking directly to Property Lawyers is critical to us as they are key customers or potentially could be for all of our products, The Solicitors Group offer a perfect solution to get our messages right to the right people”

Carole Hatton
Marketing Manager
Landmark Information Group

“Thank you for having a useful and informative site, it is good to see a comprehensive and friendly portal.”

Stefan Fann
UK Probate Services

“Cadogans aims to keep its brand image in front of lawyers who may be looking for engineering experts. A check on Google analytics showed that referrals to our website from The Solicitors Group website were above average.”

Daphne Wassermann
Technical Director
Cadogans