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Prejudice as a Test of Intent to Defraud
Published online by Cambridge University Press: 16 January 2009
Extract
When Lord Denning declares that a case decided in 1849 by a lower court is decisive to his mind, as his Lordship did of R. v. Toshack, in delivering judgment in the House of Lords in Welham v. D.P.P. (1960), it goes without saying that his Lordship is satisfied not merely that the old ruling ought to be followed out of deference to the maxim stare decisis, but also that despite the elapse of over a century it has remained appropriate under modern conditions. Yet the unanimous decision of the House of Lords that intent to defraud, the mental element required for forgery of a private document, may exist without an intent to inflict economic loss, is at variance with current academic opinion, expressed over the last decade. Writers had refused to accept the judicial view that there could be an intent to defraud, provided that a course of action was thereby induced, even though the deceit in question was not designed to result in any deprivation of property. The object of this article is to welcome the House of Lords' decision, as in accordance with the historical background of the law of forgery, both in England and in other countries that have been influenced by English principles, and further as based upon good sense. At least one critic is already pleading for legislation to change the decision, but even on this view there is something to be said for an attempt to examine the full implications of a decision that is in the meantime supremely authoritative.
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References
1 (1849) 4 Cox 38.
2 44 Cr.App.R. 124, 154; [1960] 1 All E.R. 805, 815.
3 Turner as editor of Russell on Crime, 10th ed. (1950), 1476–1487, and 11th ed. (1958), 1421–1430, and of Kenny, Outlines of Criminal Law, 16th ed. (1952) and 17th ed. (1958), para. 377; Glanville, Williams, Criminal Law (1953), 76–7Google Scholar; Fridman [1958] Crim.L.R. 503; [1960] Crim.L.R. 530.
4 Fridman [1960] Crim.L.R. 530.
5 Note 1, supra.
6 See Welham, 44 Cr.App.R. 124, 131, 143, 155; [1960] 1 All E.R. 260, 266; 805, 809, 815.
7 23 L.J.M.C. 50.
8 44 Cr.App.R. 124, 154; [1960] 1 All E.R. 805, 814.
9 25 L.J.M.C. 78, 79.
10 History of the Criminal Law, Vol. 3, 187.
11 Ibid. Vol 2, 121: cited by Hilbery J. in Welham in the C.C.A., with the comment that there is no suggestion of economic loss: 44 Cr.App.R. 124, 131; [1960] 1 All E.R. 260, 265.
12 C. W. de Villiers in (1935) 52 S.A.L.J. 143, 145.
13 13 E.D.C. 145, 150. In an English case, R. S. Wright J. apparently regarded a policeman who made a false permission from his superior to obtain liquor as guilty of forgery: Sherras v. De Rutzen (1895) 64 L.J.M.C. 218, 221.
14 Notes 1, 5, supra.
15 (1903) 694, 698, 699. The remarks of Innes C.J. are obiter: the master's reputation was unaffected, but the judge has in mind the risk of prosecution to which the barman was exposed in De Vos.
16 Q.E. v. Abbas Ali, 25 Cal. 512.
17 Q.E. v. Soshi Bhushan, 15 All. 210, 217.
18 24 & 25 Vict. c. 96, s. 83—intent to defraud; s. 84, ibid.—intent to deceive or defraud. 25 & 26 Vict. c. 89, s. 166—intent to deceive or defraud.
19 In re London & Globe Finance Corporation (1903) 19Google Scholar T.L.R. 314, 317.
20 23rd ed., 590.
21 R. v. Newton (1913)Google Scholar 9 Cr.App.R. 146.
22 3 & 4 Geo. 5, c. 27, s. 2 and 3.
23 An intent to defraud is the requisite mens rea in the crime of obtaining by false pretences, and also that of falsification of accounts: see note 34, infra.
24 Per Lord Radcliffe: 44 Cr.App.R. 124, 144; [1960] 1 All E.R. 805, 809.
25 Actually the Inn lost £100 in fees through the deceit, as appears from the statement of facts in (1931) 47 T.L.R. 222, 223, but this was not observed until the Court of Appeal of East Africa drew attention to it in Woodgate v. R. (1959) E.A. 525, 529Google Scholar. The fact was not relied upon in the judgment of the court in Bassey, nor did it weigh with the East African court, who held Woodgate guilty of falsification of accounts because by his deceit he induced his employers to a course of inaction. For a full discussion of the case, see Fridman (1960) Crim.L.R. 530–533.
26 Note 3, supra. However in the House of Commons on February 2, 1904, Sir Robert Finlay, Attorney-General, as Viscount Finlay then was, in attempting to explain his failure to institute a prosecution of Whitaker Wright, ultimately prosecuted by order of Buckley J. (note 18, supra), defined defrauding for the purpose of section 84, Larceny Act, 1861, as “to mislead persons on questions of fact with a view to prejudicing them pecuniarily,” Hansard, Vol. 129, Col. 163.
27 p. 1422.
28 Note 6, supra.
29 p. 1428.
30 (1836) 7 C. & P. 549, 551. Referred to in Russell, op. cit., 1425.
31 44 Cr.App.R. 124, 154; [1960] 1 All E.R. 805, 815.
32 Ibid. at p. 137.
33 For the facts of Welham, see the para, following note 48.
34 (1958) Crim.L.R. 503, 509–510, referring to Wines (1953) 2 All E.R. 1497, a charge under Falsification of Accounts Act, 1875 (38 & 39 Vict. c. 24), s. 1, which also requires an intent to defraud. The dictum of Buckley J. was not only followed, but received the title of locus classicus from Goddard L.C.J. (1498).
35 Note 25, supra.
36 p. 1429.
37 Notes 13–17, supra.
38 In Welham, this is stated by counsel for W. (44 Cr.App.R. 124, 134), by counsel for the Crown (137) and by Lord Radcliffe (144).
39 In Bassey, note 25, supra.
40 Note 10, supra. See Russell, op. cit., p. 1430, where it is said that Stephen was writing of the intent in larceny, whereas he was dealing with forgery.
41 Note 13, supra.
42 Kenny, 12th ed., 263. In the Turner editions, cf. para. 377, requiring economic loss.
43 (1910) 74 J.P. 208. Kenny referred to this case only on the meaning of document, and not on the question of intent: 13th ed., 258.
44 152 C.C.C. Sess. Pap. 321.
45 Lord Denning expressly held in Welham that the intended victim need not be the person to whom the false document is first presented: see note 70, infra.
46 Whereby an analogy, bearing on this case, could have been drawn from the remarks of Erle J. in Hodgson: note 59, infra.
47 [1958] 2 All E.R. 51, 55. The judge also relied on the obtaining of the piece of paper, the licence, and those who require economic loss clutch at this. Each ground of decision forms a ratio decidendi: Jacobs v. L.C.C. [1950]Google Scholar A.C. 361, 369 (H.L.).
48 (1960) Crim.L.R. 129, Bedfordshire Q.S. Mention was also made of the economic loss to the public caused by escaping the fine, and there was also evidence that but for his deception G.'s promotion would have been delayed: he therefore intended to obtain additional wages and cause economic loss thereby.
49 44 Cr.App.R. at p. 143; [1960] 1 All E.R. at p. 809.
50 Notes 1, 5, supra.
51 44 Cr.App.R. at p. 155; [1960] 1 All E.R. at p. 815. From one viewpoint, this proposition is too narrow: there may be intent to defraud even though it is impossible for anyone to be defrauded: Nash (1852) 21 L.J.M.C. 147, 149, and comment in (1952) 15 M.L.R. 11, 15.
52 Op. cit., Vol. 2, 122.
53 The hypothetical case put by Glanville Williams, op. cit., 76, is of a forged letter to induce the prosecutor to walk to a certain spot. In South Africa, Wessels J. set aside a conviction for forgery on the ground of de minimis. S. saw a strange cow on his farm. M. produced a false receipt to show it was his. The judge said that the prejudice must be such that courts could take notice of, and that “the deceit may be for the sole purpose of getting over some unimportant temporary difficulty or of hiding some fact which is of no consequence to any other individual or to the community”: R. v. McLean (1918) S.A.L.R. 94, 97Google Scholar (T.P.D.). Mason J. was not so sanguine: he regarded M.'s conduct as highly suspicious: ibid. 100.
54 (1960) Crim.L.R. 530, 537. An intent to commit rape is however sufficient mens rea for burglary.
55 Ibid. p. 533.
56 Russell, 11th ed., p. 1429.
57 The devotees of economic loss are content if there is deprivation of a scrap of paper: notes 28, 47, supra. They would not dispute a conviction if the forger's intent was to deprive of as much as a shilling.
58 The accused will probably be faced with the presumption that a man intends the natural consequences of his acts: note 78, infra.
59 (1856) 20 J.P. 309, 310.
60 A.I.R. (1954) Mysore 119.
61 Kenny, op. cit., 17th ed., 355.
62 Carpzovius, a 17th-century German jurist, freely cited in South Africa; Jolosa (note 15, supra); Macatlane (1927) S.A.L.R. 708, 712 (T.P.D.) (note 75, infra); Seabe (1927) A.D. 28, 33, alluding to the fact that a licensed dealer who supplied liquor to coloured persons might be held in bad odour by his neighbours; Leballo (1954) 2 S.A.L.R. 657, 660, citing Dhlamini (1943) T.P.D. 20, 23.
63 Macdonald, Criminal Law of Scotland, 5th ed. (1948), 61.
64 Note 17, supra.
65 Per Hilbery J. in the C.C.A.: 44 Cr.App.R. at p. 128. In the H.L., Lord Radcliffe was not so specific, but he did say that “to defraud must involve something more than the mere inducing of a course of action by deceit”; ibid. 145.
66 Per Hilbery J. ibid. at p. 133. This is implicit in the decision in the H.L. See also Garland (note 48, supra), and in South Africa, Lin Yunn Chen (1908) Transvaal L.R. 634Google Scholar, where L., who forged a signature to a gang sheet, which represented that two coolies, in fact absent without permission, had been at work and had drilled so many holes, was convicted of forgery, the requisite prejudice being that to the master who was deprived of the right of prosecuting the absentees.
67 (1943) V.L.R. 83.
68 Forgery Act, 1913, s. 3(2)
69 (1880) 14 Cox 375, considered in (1952) 15 M.L.R. 11, 15, 16. A belief that he would thus escape liability would of course be erroneous. There happened to be a William Martin, an actual customer of the same bank; but this was unknown to the accused: 14 Cox at p. 377. In a Transvaal case, where the facts were similar, but the accused did know of the person whose name was used, the English case was distinguished, and he was held guilty of forgery, the prejudice consisting in the risk to the third person of being sued on the cheque: Sedat (1916) S.A.L.R. 431, 433 (T.P.D.).
70 Per Lord Denning: 44 Cr.App.R. 124, 156; [1960] 1 All E.R. 805, 816. Sharman (note 7, supra) would be such a case on the interpretation placed on it by counsel for the accused in Hodgson (note 9, supra)—testimonial uttered to deceive the appointments committee, but to defraud the other candidates for the post. For India, see Soshi Bhushan (note 17, supra)—false document to provide a quick passage into the second year law class at Queen's College, Benares, presented to the Principal to deceive him, but to defraud the law professor of his fees.
71 Note 60, supra.
72 (1960) Crim.L.R. 131, a note published after the C.C.A. decision in Welham, but before that of the H.L.
73 Per Williams J. in Sharman (1854) 23 L.J.M.C. 50, 52. Fridman criticises this view: (1960) Crim.L.R. at pp. 540–541.
74 “Although it is almost invariably associated with obtaining an advantage it is the effect on the victim that ultimately determines its meaning”: 44 Cr.App.R. at p. 141.
75 Macatlane (1927) S.A.L.R. 708—M. had eight previous convictions. Leballo (1954) 2 S.A.L.R. 657—L. a schoolmaster had been dismissed by the Education Department from a school where the testimonial said he had acted with great ability. If the false testimonial is shown to represent with fair accuracy the actual opinion of the apparent signatory, it has been held there is no prejudice to the latter: Dhlamini (1943) T.P.D. 20.
76 R. v. John (1931) S.A.L.J. 83Google Scholar. See also the cases where risk of prosecution of the dupe has been held prejudice to him: note 13, and Seabe (1927) note 62, supra. Qu. whether in South Africa, prejudice to the finance company in a case like Welham could be found in the risk of prosecution.
77 Note 47, supra.
78 (1935) 53 S.A.L.J. 143, 150, 159, 163–164. In Seabe (1925) S.A.L.R. 327 (T.P.D.), he was prosecuting, as Attorney-General, in a typical false liquor permit case. He conceded that S. never contemplated the kind of prejudice arising to the licensed dealer from supplying a native (330), but Tindall J. held that if such prejudice was the probable consequence of the accused's misrepresentations, that was sufficient: in contemplation of law he might be said to have intended such prejudice: ibid. 331.
79 See Glanville, Williams, op. cit., 77.Google Scholar
80 (1899) 13 E.D.C. 145, 148–149. This was a case where one of Stephen's definitions was approved: note 13, supra. The tendency in South Africa to assume intentions on the part of the accused may spring in part from the influence of Stephen's definitions (notes 10 and 11, supra), in that in each one stress is laid on the need for loss or injury, and the point that the accused must intend to cause that loss is glossed over.
81 Op. cit., 150–151.
82 Ibid. p. 163–164.
83 (1902) 23 N.L.R. 76.
84 R. v. Frankfort Motors (1946) O.P.D. 255Google Scholar.
85 Op. cit., 165, 168.
86 R. v. Heyne (1956) A.D. 604Google Scholar, 624 (Appellate Division).
87 Note 48, supra.