Director of Public Prosecutions v Turner

[1973] 3 All ER 124

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(Decision by: Lord Pearson)

Between: Director of Public Prosecutions
And: Turner

Court:

Judges: Lord Reid
Lord MacDermott
Lord Morris of Borth-y-Gest
Lord Hodson

Lord Pearson

Subject References:
criminal
Criminal Law
Obtaining pecuniary advantage by deception
Evasion of debt
Meaning
Antecedent debt
Worthless cheque
Accused having already incurred liability before cheque handed over
Cheque dishonoured
Whether debt evaded

Legislative References:
Theft Act 1968 - s 16

Case References:
Currie v Misa - (1875) LR 10 Exch 153; 44 LJ Ex 94, Ex Ch; affd, sub nom Misa v Currie (1876) 1 App Cas 554; [1874-80] All ER Rep 686; 45 LJQB 852; 35 LT 414, HL; 12 Digest (Reissue) 218, 1397
Elwell v Jackson - (1885) 1 TLR 454, CA; 21 Digest (Repl) 720, 2207
Hadley (Felix) & Co Ltd v Hadley - [1898] 2 Ch 680; 67 LJCh 694; 79 LT 299; 8 Digest (Repl) 587, 337
Matthew, Re, ex parte Matthew - (1884) 12 QBD 506; 51 LT 179; 1 Morr 47, CA; 21 Digest (Repl) 175, 1603
R v Fazackerley - [1973] 2 All ER 819; [1973] 1 WLR 632, CA
R v Locker - [1971] 2 All ER 875; [1971] 2 QB 321; [1971] 2 WLR 1302; 135 JP 437; 55 Cr App Rep 375, CA
R v Page - [1971] 2 All ER 870; [1971] 2 QB 330; [1971] 2 WLR 1308; 55 Cr App Rep 184, CA
R v Plunkett - [1973] Crim LR 367, CA

Hearing date: 11, 12, 13 June 1973
Judgment date: 25 July 1973

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Decision by:
Lord Pearson

My Lords, I have had the advantage of reading the speech prepared by my noble and learned friend, Lord Reid, and I agree that for the reasons given by him the appeal should be allowed and the conviction, founded on an evasion of the debt by the respondent, should be restored.

There is, however, a collateral matter on which I am unable to agree with my noble and learned friend, and as the observations on this collateral matter may affect other cases, I should state my opinion.

It seems to me that on the facts of this case there was a deferment of the debt within the meaning of s 16 of the Theft Act 1968 as well as an evasion of it.

The debt was an obligation to pay £38 on the Saturday, but on the Saturday the respondent, as debtor, offered and the creditor accepted a cheque for £38. The general rule, which applies in this case, because there are no special circumstances to exclude it, is that, if the debtor offers and the creditor accepts a cheque for the amount of the debt, there is a conditional discharge of the debt, the condition being that if the cheque is dishonoured the debt will revive: Currie v Misa ((1875) LR 10 Exch 153 at 162-165; affd HL (1876) 1 App Cas 554, [1874-80] All ER Rep 686) in the Exchequer Chamber; Re Matthew, ex parte Matthew; Felix Hadley & Co Ltd v Hadley ([1898] 2 Ch 680 at 682, 683), per Byrne J; Elwell v Jackson. The cheque was worthless, as the respondent knew when he gave it, and it was dishonoured.

The time at which the cheque was given and accepted on the Saturday, and the date and time when the cheque was dishonoured are not stated, but for convenience of illustration be it assumed that the cheque was given and accepted at 12 noon on Saturday and was dishonoured at 12 noon on Monday. Then on Saturday morning the respondent owed the debt of £38 payable immediately. On Saturday afternoon and Sunday and Monday morning he did not owe the debt but had to see that the cheque would be met when presented. On Monday afternoon, the cheque having been dishonoured so that the debt revived, he again owed the debt of £38 payable immediately. It seems to me that on those facts the debt-the obligation to pay £38-was deferred for two days. The debtor gained that amount of time, and that was the pecuniary advantage which he obtained by falsely pretending (by implication) that the cheque was a good and valid cheque.