WELHAM v DPP

ICLR: Appeal Cases/1961/WELHAM APPELLANT;  AND  DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT. – [1961] A.C. 103

 

[1961] A.C. 103

[HOUSE OF LORDS.]

WELHAM APPELLANT;  AND  DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT.

 

 1960 Feb. 22, 23, 24, 25; Mar. 24.

 

 LORD RADCLIFFE, LORD TUCKER, LORD KEITH OF AVONHOLM, LORD DENNING and LORD MORRIS OF BORTH-Y-GEST.

 Crime – Fraud – “Intent to defraud” – Forgery – Uttering forged documents with intent to defraud – Whether economic loss necessary – Forgery Act, 1913 (3 & 4 Geo. 5, c. 27), ss. 4 (1), 6.

 Statute – Construction – Meaning of word – Contemporary usage – Established legal interpretation before passing of Act – “Intent to defraud” – Forgery Act, 1913, s. 4 (1).

 Judicial Precedent – Statute – Construction – Obiter dictum on meaning of words prior to enactment – “Intent to defraud” – Forgery Act, 1913, s. 4 (1) (post, p. 126).

 

By section 4 of the Forgery Act, 1913: “(1) Forgery of any document, which is not made felony under this or any other statute for the time being in force, if committed with intent to defraud, shall be a misdemeanour. …” By section 6: “(1) Every person who utters any forged document … shall be guilty of an offence of the like degree … and on conviction thereof shall be liable to the same punishment as if he himself had forged the document. …”

 

The appellant was tried on an indictment which included two counts which charged him with uttering forged documents, contrary to section 6 of the Forgery Act, 1913.1 The appellant, as sales manager of Motors (Brighton) Ltd., had witnessed forged hire-purchase agreements on the strength of which certain finance companies had advanced large sums of money to Motors (Brighton)

 

1. Forgery Act, 1913, s. 4: “(1) Forgery of any document, which is not made felony under this or any other statute for the time being in force, if committed with intent to defraud, shall be a misdemeanour and punishable with imprisonment with or without hard labour for any term not exceeding two years. (2) Forgery of any public document which is not made felony under this or any other statute for the time being in force, if committed with intent to defraud or deceive, shall be a misdemeanour and punishable with imprisonment with or without hard labour for any term not exceeding two years.”

 

S. 6: “(1) Every person who utters any forged document … shall be guilty of an offence of the like degree … and on conviction thereof shall be liable to the same punishment as if he himself had forged the document … (2) A person utters a forged document … who, knowing the same to be forged, and with either of the intents necessary to constitute the offence of forging the said document … uses, offers, publishes, delivers, disposes of, … or puts off the said forged document. …”

[1961] A.C. 103 Page  104

Ltd. The appellant’s defence was that he had believed that the agreements were brought into being to enable the finance companies to lend money which they could not ordinarily do because of credit restrictions, and because by their memorandum and articles of association they could not act as moneylenders. He claimed that the purpose of the hire-purchase agreements was to make it appear that the finance companies were advancing money in the way of their business as finance companies, and he accordingly contended that he had had no intention to defraud the finance companies but was merely uttering the documents to mislead the relevant authority who might inspect the records to see that the credit restrictions were being observed and whose duty it was to prevent their contravention. The jury were directed that this was a sufficient intention to defraud and the appellant was convicted. He appealed on the ground that his intention was merely an intention to deceive and not an intention to defraud, which involved causing some economic loss to the person deceived:-

 

Held, (1) that the words “intent to defraud” in section 4 (1) of the Act of 1913, must be understood in the light of any established legal interpretation that prevailed at the date of the passing of the Act (post, pp. 123, 131), and that, on the authorities, there was no warrant for confining those words to the idea of depriving a person by deceit of some economic advantage or inflicting upon him some economic loss (post, pp. 124, 133).

 

Dictum of Buckley J. in In re London and Globe Finance Corporation [1903] 1 Ch. 728, 732; 19 T.L.R. 314 considered.

 

(2) That an intent to defraud existed when the false document was brought into existence for no other purpose than of deceiving a person responsible for a public duty into doing something that he would not have done but for the deceit, or not doing something that but for it he would have done. Correspondingly, to put forward such a document with knowledge of its falsity, and with a similar intent was to commit the crime of uttering it (post, pp. 125, 134). Accordingly, the appeal must be dismissed.

 

Reg. v. Toshack (1849) 4 Cox C.C. 38; 1 Den.C.C. 492, C.C.R. applied.

 

Decision of the Court of Criminal Appeal, sub nom. Reg. v. Welham [1960] 2 Q.B. 445; [1960] 2 W.L.R. 333; [1960] 1 All E.R. 260, C.C.A. affirmed.

APPEAL from the Court of Criminal Appeal (Lord Parker C.J., Hilbery, Cassels, Salmon and Edmund Davies JJ.).

This was an appeal by Robert John Welham from the decision of the Court of Criminal Appeal on December 16, 1959, affirming his conviction at the Central Criminal Court on December 19, 1958, on two counts of uttering forged documents contrary to section 6 of the Forgery Act, 1913.

The facts, stated by Lord Denning, were as follows: The appellant, Robert John Welham, and two other men were charged at the Central Criminal Court with conspiracy to defraud and

[1961] A.C. 103 Page  105

with uttering forged documents. Welham was acquitted of the conspiracy but convicted of the uttering and sentenced to nine months’ imprisonment. He appealed to the Court of Criminal Appeal. That court dismissed his appeal. The Attorney-General gave his fiat for a further appeal.

The counts for uttering charged Welham with uttering forged documents contrary to section 6 of the Forgery Act, 1913. It is sufficient for present purposes to take the second count which was put to him on his arraignment in these words: “On January 16, 1957, with intent to defraud, you uttered a forged hire-purchase proposal form and hire-purchase agreement purporting to be signed by J. Murray of 4, Meynell Crescent, E.9, knowing the same to be forged.”

To that charge he pleaded not guilty. Likewise to the third count relating to forged credit sale agreements he pleaded not guilty.

According to the evidence for the prosecution, Welham was the manager of a firm of motor dealers in Brighton called Motors (Brighton) Ltd. These dealers obtained money from finance companies in London called Consortium Finance Ltd. and Master-ton Finance Ltd. They did this by submitting to the finance companies sets of documents which appeared to relate to the hire-purchase of lorries or the credit-sale of lorries. But the documents were fictitious. Take, for instance, the hire-purchase document which was the subject of count 2. The document named one “J. Murray” as the hirer of lorry No. XMT 756. But there was in fact no such lorry: and although there was such a person as Mr. Murray, he had not in fact signed the hire-purchase document nor had he authorised it to be signed in his name. His signature “J. Murray” had been forged. It purported to be witnessed by the accused “R. J. Welham,” but Welham had never witnessed it. Welham had signed the document in the place for the witness. His own signature was genuine enough but he had attested a forgery. It was on that document and others like it that the motor dealers obtained money from the finance companies. That was cogent evidence of a conspiracy to defraud the finance companies. The two other men were convicted of it. But Welham was acquitted.

Welham’s defence to the conspiracy charge which, no doubt, earned him his acquittal was this: He said that he did not intend to defraud the finance companies at all. He had been brought into the matter by one Prater, a director of the motor dealers.

[1961] A.C. 103 Page  106

Prater told him that they wished to borrow money from the Consortium Finance Co. The company were unable to lend money on straight loans owing to the restrictions on borrowing then in force, and also owing to the objects in their memorandum and articles: but they were ready to lend money under cover of hire-purchase documents so long as nobody outside the “immediate circle” knew of it. The documents were bogus and were known by the finance company to be bogus, but they were necessary to cover up the loans. “The purpose was,” he said, “to satisfy any Board of Trade investigation.” The jury must be taken to have accepted Welham’s belief on this point: for they acquitted him on the charge of conspiracy to defraud the finance companies.

There remained, however, the counts for uttering forged documents with intent to defraud knowing them to be forged. To these counts Welham said in the first place that he did not know the documents were forged. At the time when he signed as a witness, the signature of the hirer was, he said, in blank. Take the hire-purchase document in count 2. “J. Murray” was, he said, not on it when he signed. He sent it to London to be completed: and when he got it back, the signature “J. Murray” was then filled in: and he accepted that signature as being genuine. He then sent the document forward to the finance company. He acknowledged that there was no such lorry as described in the document but he believed that the signature was genuine.

The next answer made by Welham to the charge of uttering was that he had no intent to defraud. There was, however, in this respect a significant difference between the count for conspiracy and the counts for uttering. The conspiracy was charged as being to defraud specified persons, namely, the finance companies: but the uttering was charged as uttering of forged documents “with intent to defraud” generally, without specifying any particular person or persons. On these counts for uttering Welham seems to have been prepared to admit that he had an intent to deceive but not that he had an intent to defraud. His position can be summed up in his answers to the last two questions addressed to him by the Common Serjeant:

 

“Q. I think you told Mr. Maxwell Turner … that you passed these documents on to Consortium” [Finance Co.] “knowing that they were fictitious, with the object of deceiving, among other things, the Capital Issues Committee? A. I did say that. At that time I knew there were credit restrictions, but the

[1961] A.C. 103 Page  107

Capital Issues Committee did not mean anything to me; that is to say, with the object of defeating the regulations.

 

Q. And inducing that committee to do something which in fact they were bound in law to prevent? A. Yes, my Lord.”

 

The Common Serjeant appears to have taken the view, on those answers, that Welham had admitted an intent to defraud, for he told the jury: “It is not incumbent upon the prosecution in these two counts, as it is in the case of the first count, to prove an intent to defraud any particular person, and, therefore, if the prosecution have succeeded in proving against Welham that he was a party to putting forward documents which he knew to be forged, and he put them forward with the dishonest intention, as he himself said, of defrauding the Capital Issues Committee, well, then, he would be guilty upon these two counts. … They have got to prove an intent to defraud, and Welham’s own case is that the intention here in respect of these bogus documents was to defraud the Capital Issues Committee by deceiving them in not preventing something which it was their duty in law to prevent.”

The jury retired and returned with the question: “Does ‘with intent to defraud’ mean that when Welham signed … as a witness before hirer’s signature, was he defrauding?”

The Common Serjeant directed them again on Welham’s two defences. He told them that, in order to convict Welham, they must be satisfied that he knew Murray’s signature was not genuine, and then went on to say: “I have ventured to direct you that upon his own evidence, if that be so, these documents, like all the others, were put forward for the purpose of pulling the wool over the eyes of the Capital Issues Committee, as he understood it, and to cover up the fact, if there should be an inquiry, that these big loans had been made by the hire-purchase companies to Motors (Brighton) Ltd. … on his own evidence … there would not be an intention to defraud because the intention to defraud would not be the intention to defraud the hire-purchase companies, but to defraud the Capital Issues Committee by deceiving them into taking a course of action which would lead them into not preventing something happening which it was their duty in law, if they knew of it, to prevent.” Something appears to have gone wrong in the transcribing of the last passage, but the Common Serjeant was no doubt repeating again to the jury what he had already told them.

The jury retired again and found Welham guilty on counts 2 and 3 of uttering forged documents.

[1961] A.C. 103 Page  108

 

Gerald Gardiner Q.C. and C. W. G. Ross-Munro for the appellant. The question is as to the meaning of the words “intent to defraud” in section 4 (1) of the Forgery Act, 1913. Throughout this Act a clear distinction is drawn between an intent to defraud and an intent to deceive: see sections 1, 2, 3, 4, 5 and 6. In the case of a public document it is sufficient to prove an intent to deceive, but in the case of a private document it is essential to prove an intent to defraud to establish the offence. Accordingly, it is essential in a case where the subject is charged with forgery of, or uttering, a forged private document to ascertain whether the accused’s intention was to defraud or merely to deceive.

 

At the appellant’s trial the Common Serjeant gave no clear direction to the jury as to the difference between the two intents. Further, there was no evidence of an intent to defraud. It is pertinent to point out that this appears to be the first case in which there has been a conviction for uttering a forged document with intent to defraud where the person alleged to be defrauded was not the person to whom the forged document was uttered.

 

In the context of the Forgery Act, 1913, “intent to defraud” means an intent to deprive a person of some valuable thing, namely, money or money’s worth. If this definition is departed from it is impossible to keep separate the two different types of intent which the Act of 1913 plainly envisages.

 

At the date of the Forgery Act, 1830, and under that Act it was necessary for the prosecution to show an intent to defraud in order to establish the commission of the statutory offence. Rex v. Crowther2 establishes that it is immaterial that the fraud was not, or, indeed, could not be, perpetrated. It is to be observed that (a) the intent was to deprive the person of a valuable thing; (b) it was to that person that the forged document was uttered; (c) it is a decision that the indictment was good, that is, that the jury might find the offence proved. Rex v. Martin3 and Reg. v. Wilson4 are plainly cases of an intent to defraud. In Reg. v. Marcus5 the uttering was to the person alleged to be defrauded. In Reg. v. Hoatson6 Rolfe B. dissented from some of the observations in Reg. v. Marcus,7 but there is no comment as to whether there is a distinction between an intent to defraud and an intent to deceive. Reg v. Heywood8 established that to constitute the

2     (1832) 5 C. & P. 316.

3     (1836) 1 Mood.C.C. 483, C.C.R.

4     (1848) 1 Den. 284, C.C.R.

5     (1846) 2 C. & K. 356.

6     (1847) 2 C. & K. 777.

7     2 C. & K. 356.

8     Ibid. 352.

[1961] A.C. 103 Page  109

offence of uttering a forged marriage certificate contrary to section 20 of the Forgery Act, 1830, it was necessary to prove that the document was uttered to the person it was intended to defraud.

 

The Crown strongly rely on Reg. v. Toshack,9 which was a case of forgery at common law. It is to be observed, however, that the only question that the court was considering was whether the indictment was good and not whether the jury were entitled to find that there was an intent to defraud. The indictment contained both the words “defraud” and “deceive.” The decision is of little assistance. The words defraud and deceive appear to be synonymous in the old cases. At common law all that was required was an intent to defraud. The Crown also rely on Reg. v. Nash,10 but it is difficult to see its relevance here since the sole question was whether there was any evidence on which the jury could find an intent to defraud. In Reg. v. Hodgson11 it was held that the mere display of a forged certificate was not evidence of an intent to defraud. The certificate was not produced when the accused applied for a post. If it had been, it could have been said that the accused was endeavouring to obtain something of value, and it would then have been akin to the facts in Reg. v. Toshack.12 Reg. v. Sharman13 and Reg. v. Moah14 are both cases where there was plainly evidence of an intent to defraud.

 

The Forgery Act, 1861, extended the class of documents which could be forged, but there is no provision creating an offence of uttering forged documents with intent to deceive. The various provisions of the Act usually contain either the words “fraudulently” or “intent to defraud,” see sections 1, 2, 4-8, 12, 20-33, 36 and 44. [Reference was also made to sections 83 and 84 of the Larceny Act, 1861, and to the Forgery Act, 1870.]

 

Great reliance has been placed in forgery cases on the following observations of Buckley J. in In re London and Globe Finance Corporation Ltd.15: “To deceive is … to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. To defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury. More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action.” That is not, however, a complete

9     (1849) 4 Cox C.C. 38; 1 Den.C.C. 492, C.C.R.

10     (1852) 2 Den. 493, C.C.R.

11     (1856) Dears. & B. 3, C.C.R.

12     4 Cox C.C. 38.

13     (1854) 1 Dears.C.C. 285, C.C.R.

14     (1858) 7 Cox C.C. 503, C.C.R.

15     [1903] 1 Ch. 728, 732, 733.

[1961] A.C. 103 Page  110

 

definition and, in any event, it is strictly obiter, for the question for decision was whether the costs and expenses of a prosecution under sections 83 and 84 of the Larceny Act 1861, and section 166 of the Companies Act, 1862, should be paid out of the assets of a company. If A deceives B by asking him to drink a glass of water, which is in fact poison, and B drinks it, doubtless B has acted to his detriment, but no one could suggest that B had been defrauded. In other words, to defraud is not “by deceit to induce a course of action.” It is submitted that an intent to deceive is an intent to induce a person to believe that something is true which is untrue, or that something is untrue which is true, or to make a statement recklessly not caring whether it be true or false. In contrast, an intent to defraud is for present purposes an intent to obtain from the person to whom the forged document is uttered something of value.

 

The law relating to forgery before the passing of the Forgery Act, 1913, is set out in Russell on Crimes and Misdemeanours, 7th ed. (1909), pp. 1599 and 1642. The pre-1913 cases do not differentiate between an intent to defraud and intent to deceive. [Reference was made to Rex v. Parker16 and Rex v. Carpenter.17] The Forgery Act, 1913, in terms, shows that Parliament intended that there should be a substantial distinction between an intent to defraud and intent to deceive. In Rex v. Bennett and Newton18 the Court of Criminal Appeal expressly approved the dictum of Buckley J. in In re London and Globe Finance CorporationLtd.,19 but Bennett’s case20 is distinguishable from the present case for there the accused were uttering forged documents with intent to defraud, for they plainly intended their victim to act to his injury. It is a question of fact for the jury whether there was an intent to defraud: Rex v. Secombe21; Rex v. Hunt22; Rex v. Pickup.23

 

Rex v. Bassey,24 on which the Crown rely, was wrongly decided in so far as it upheld the prisoner’s conviction on the charge of forgery; the only authority cited by the Court of Criminal Appeal was Buckley J.’s dictum in In re London and Globe Finance Corporation Ltd.25 – the court was not referred to the authorities relating to the meaning of “intent to defraud” in connection with forgery. They only held that there was evidence on which the jury could find that the prisoner had such

16     (1910) 74 J.P. 208.

17     (1911) 22 Cox C.C. 618.

18     (1913) 9 Cr.App.R. 146, C.C.A.

19     [1903] 1 Ch. 728, 732.

20     9 Cr.App.R. 146.

21     (1917) 12 Cr.App.R. 275, C.C.A.

22     (1918) 13 Cr.App.R. 155, C.C.A.

23     (1931) 22 Cr.App.R. 186, C.C.A.

24     (1931) 22 Cr.App.R. 160, C.C.A.

25     [1903] 1 Ch. 728, 732.

[1961] A.C. 103 Page  111

 

if the accused intended to prevent a person, who has a duty to perform, by deceit from discharging that duty, for thereby he acts to his injury. That is a wrong principle. Even if the duty there mentioned was intended to be confined to a public duty, that does not cover Bassey’s case26 for the benchers of an Inn of Court do not constitute a public body, nor does the Law Society, which is a statutory body, since a public body, inter alia, has to publish its accounts. Further, however widely the word “injury” be construed in the present context, to hold that any person who intends by deceit to impede a public authority from doing its duty therefore intends to defraud within the meaning of the Forgery Act, 1913, would be an act of judicial legislation for which there is no warrant, however desirable it might be to have such a statutory provision.

 

Buckley J.’s dictum27 and the decision in Rex v. Bassey28 and the interpretation therein given to Buckley J.’s statement, have been the subject of comment and criticism in the textbooks: it has been pointed out that the definition proper of “defraud” in this dictum ends with the expression “to defraud is to deprive by deceit” and that the words which follow merely give the genus to which the defined species belong. It is further pointed out that the words “more tersely it may be put,” etc., again merely indicate the genus in another way: see Russell on Crime, 10th ed. (Turner), pp. 1476 et seq., and in particular pp. 1485-1487; 11th ed. (Turner), pp. 1428-1430; Kenny’s Outlines of Criminal Law, 16th ed. (Turner), pp. 300, 301; 17th ed. (Turner), pp. 347-350; Glanville Williams, Criminal Law, The General Part (1953), pp. 74-77. [Reference was also made to Kenny’s Outlines of Criminal Law, 13th ed., p. 262; 15th ed. (Phillips), pp. 301, 302.]

 

In Reg. v. Wines29 the prisoner’s conviction for falsification of accounts was upheld on the ground that entries of non-existent profits in order to avoid dismissal amounted to an intent to defraud as defined by Buckley J. in the London and Globe Finance Corporation case.30 But it is submitted that defrauding does not cover every kind of detriment. Thus the covering up or concealment of a fraud does not evince an intent to defraud but merely an intent to deceive. The observations of Lord Tucker in

26     22 Cr.App.R. 160.

27     [1903] 1 Ch. 728, 732.

28     22 Cr.App.R. 160.

29     [1954] 1 W.L.R. 64; [1953] 2 All E.R. 1497; 37 Cr.App.R. 197, C.C.A.

30     [1903] 1 Ch. 728, 732.

[1961] A.C. 103 Page  112

 

Board of Trade v. Owen31 as to the ambit of the phrase “intent to defraud” are obiter in view of the decision of the House on the main issue in that appeal. [Reference was also made to Reg. v. Newland,32 Reg. v. Fowler33 and Reg. v. Potter.34]

 

The Forgery Act, 1913, plainly contemplates that the benefit obtained by the fraud should be the product of the deception. But on the jury’s finding the appellant had no intention of deceiving the finance companies. Further, the appellant himself did not obtain the loan.

 

In summary, the decision of the court below abolishes the distinction between an intent to defraud and an intent to deceive, because there is now included in the former intent the intent to effect any injury or deprivation. Thus it includes an intent to prevent a person exercising a right which he possesses and also an intent to induce a person to do something contrary to his duty, and that is in no way limited to a duty laid upon a public authority or to a public duty. From this decision it would appear that Reg. v. Hodgson35 was wrongly decided. It is submitted that such an extension of the meaning hitherto given to “intent to defraud” can only be effected by legislation, for otherwise it would mean that the courts have power, like Humpty-Dumpty, to interpret words in any sense whatsoever.

 

Ross-Munro following. The presence or absence of an intent to defraud is a question of fact: Kat v. Diment.36 Accordingly, if the Common Serjeant had explained to the jury the relevant distinction between an intent to defraud and an intent to deceive, and the jury on such direction had found that, on the evidence, there was no intent to defraud, it could not be said that the jury’s verdict was perverse. The Common Serjeant was wrong in directing the jury that the appellant’s own evidence amounted to an admission of an intent to defraud.

 

Sir Jocelyn Simon Q.C., S.-G., J. H. Buzzard and M. D. L. Worsley for the Crown. The crime of forgery arose as a development of the law relating to treason, it being considered a specíes of treason to fabricate the Great or Privy Seals. Subsequently

31     [1957] A.C. 602, 622; [1957] 2 W.L.R. 351; [1957] 1 All E.R. 411; 41 Cr.App.R. 11, H.L.; sub nom. Reg. v. Owen [1957] 1 Q.B. 174; [1956] 3 W.L.R. 252, 739; [1956] 3 All E.R. 432, C.C.A.

32     [1954] 1 Q.B. 158; [1953] 3 W.L.R. 826; [1953] 2 All E.R. 1067; 37 Cr.App.R. 154, C.C.A.

33     [1956] Crim.L.R. 330.

34     [1958] 1 W.L.R. 638; [1958] 2 All E.R. 51; 42 Cr.App.R. 168.

35     Dears. & B. 3.

36     [1951] 1 K.B. 34, 39, 43; 66 T.L.R. (Pt. 2) 474; [1950] 2 All E.R. 657, D.C.

[1961] A.C. 103 Page  113

the Star Chamber exercised its jurisdiction in relation to the falsification of seals and documents of a non-official character, but there was no judicial development of the law of forgery until it became a misdemeanour at common law early in the eighteenth century. There followed numerous statutes extending the class of instruments which could be forged and increasing the penalties which could be imposed. [Reference was made to a schedule listing so far as was known all the statutes relating to forgery from (1350) 25 Edw. 3, st. 5, c. 2, to (1910) 10 Edw. 7 & 1 Geo. 5, c. 24 (106 statutes in all), and to the statutes cited in Archbold’s Criminal Pleading, Evidence and Practice, 34th ed., paras. 2144 et seq., and paras. 3701 et seq.]

 

Before the enactment of section 1 of the Forgery Act, 1913, none of the relevant statutes contained any definition as to what constituted forgery. The first mention of “intent to defraud” is in 9 Ann. c. 21, s. 57; the first mention of “fraudulently” is in 8 Geo. 1, c. 12, s. 1, and the first mention of “intent to deceive or defraud” is in 43 Geo. 3, c. 139, s. 1. In spite of the alleged distinction between public and private documents referred to in the textbooks and also in the Forgery Act, 1913, some enactments relating to the forging of public documents required an intent to defraud, whilst others relating to the forging of private documents required no intent as a prerequisite to the commission of the offence: contrast 12 Geo. 1, c. 32, s. 9, with 8 Geo. 1, c. 22, s. 1, and 31 Geo. 2, c. 22, s. 77.

 

The distinction between public and private documents may have arisen because at common law a distinction was drawn between the counterfeiting of records and “writing of an inferior nature,” the counterfeiting of which did not constitute the crime of forgery before the decision in Rex v. Ward.37 The great lack of precision and the anomalies in the expressing of the relevant intent (if any) in the statutes makes it impossible to draw any general conclusions as to intent by reference to them. A comparison of 10 Geo. 4, c. 24, s. 41, with 3 & 4 Vict. c. 92, s. 8, demonstrates plainly the confusion which reigned in the pre-1913 statutes relating to forgery.

 

It is submitted, however, that the following proposition is a legitimate inference from the earlier statutes, namely, that where before 1913 a statute made it an offence to forge any document, and no reference was made to intent, it was implicit in the use of the word “forge” that the making of the false document

37     (1727) 2 Ld.Raym. 1461; 3 Ld.Raym. 358; 2 Stra. 747.

[1961] A.C. 103 Page  114

 

to deceive. Accordingly, the specific inclusion of an intent to deceive in the Forgery Act, 1913, is mere tautology. But the question may be asked: why does the expression “intent to defraud or deceive” occur in section 1 (1) of the Act of 1913, an Act “to consolidate, simplify and amend the law relating to forgery and kindred offences”? It is suggested that the draftsman had in mind the well-known dictum of Buckley J. in In re London and Globe Finance Corporation Ltd.38 which had been quoted in extenso in the 23rd edition of Archbold (1905) at p. 590, and in the 24th edition of Archbold (1910) at p. 675, and it was intended by the use of the words “intent to defraud or deceive” that they should bear the same meaning as determined by Buckley J., on the principle of reenactment: see Barras v. Aberdeen Steam Trawling and Fishing Co.39; Robinson Brothers (Brewers) Ltd. v. Durham County Assessment Committee40; Royal Crown Derby Porcelain Co. Ltd. v. Russell (Raymond)41; Lang v. Lang42; Galloway v. Galloway.43 [Reference was made to Halsbury’s Laws of England, 2nd ed., vol. 31, para. 624; Maxwell on Interpretation of Statutes, 10th ed., p. 313; Craies on Statute Law, 5th ed., p. 158.]

 

As to forgery at common law, it is submitted: (1) An intent to defraud was a necessary element for the commission of the offence whether the document was of a public or a private nature. (2) In spite of a later distinction in the statutes between public and private documents, the common law does not appear to have drawn any such distinction although, as indicated above, a distinction was drawn to differentiate documents of an inferior nature, that is, inferior to deeds and wills, and they were not considered to be the subject of forgery until Rex v. Ward.44 That case45 decided that the counterfeiting in writing of any document whereby any person would be prejudiced was a forgery at common law. (3) The intent did not necessarily involve any economic detriment or the loss of anything of any pecuniary value. The test was the possible prejudice of another man’s rights: see East’s Pleas of the Crown (1803) vol. 2, pp. 852, 854. (4) The

38     [1903] 1 Ch. 728, 732.

39     [1933] A.C. 402, 411; 49 T.L.R. 391.

40     [1938] A.C. 321, 339; 54 T.L.R. 568; [1938] 2 All E.R. 79.

41     [1949] 2 K.B. 417; [1949] 1 All E.R. 749.

42     [1955] A.C. 402, 431; [1954] 3 W.L.R. 762; [1954] 3 All E.R. 571.

43     [1956] A.C. 299, 306, 317, 323-325; [1955] 3 W.L.R. 723; [1955] 3 All E.R. 429.

44     2 Ld.Raym. 1461; 3 Ld.Raym. 358; 2 Stra. 747.

45     Ibid.

[1961] A.C. 103 Page  115

 

the document was uttered. It was enough if some third person’s rights were intended to be prejudiced. (5) There was no necessity to prove an intent to defraud any particular person provided there was a person or class of persons who could be defrauded. The fact that the forgery might be so palpable that no one would be taken in by it is irrelevant. It follows that it matters not in the present case that the appellant was mistaken as to the precise functions of the Capital Issues Committee. (6) Section 4 (1) of the Forgery Act, 1913, enacted the common law.

 

In Hawkins’ Pleas of the Crown, 8th ed., vol. 1, p. 264, there is cited as an example of forgery the insertion into an indictment “the names of those against whom in truth it was not found.” That is important, since it is a plain case of a person being prejudiced without suffering economic loss; it is also a case of a third person being prejudiced and not the person to whom the forgery was uttered, which would be either the grand jury or the court itself. In Blackstone’s Commentaries on the Laws of England, 8th ed., vol. 4, p. 247, forgery is defined as “the fraudulent making or alteration of a writing to the prejudice of another man’s right.” It is to be observed that there is in that definition no reference to any economic loss. In Rex v. Jones and Palmer46 and in Rex v. Parkes and Brown,47 it was held that an intent to defraud is a necessary ingredient of forgery; and East’s Pleas of the Crown (1803), vol. 2, at p. 853, which notes these two cases, makes the comment that “in the word deceive must doubtless be intended to be included an intent to defraud.” Rex v. Fawcett48 and Rex v. Harris,49 neither of which was cited to the Court of Criminal Appeal, were both cases concerning the forging of papers to secure a prisoner’s release from gaol. They are very material for present purposes since, although there was no intent that the person deceived, the sheriff or governor of the gaol, should be pecuniarily prejudiced thereby, nevertheless, it was held that there was an intent to defraud.

 

A servant who takes his employer’s money and falsifies the books to cover up his defalcations is guilty of forgery: Rex v. Martin50; Reg. v. Wines.51 Equally, it is submitted, if the servant de die in diem replaces the money he has previously taken; for although the employer has suffered no deprivation in

46     (1785) 1 Leach 366.

47     (1797) 2 Leach 775.

48     (1793) 2 East P.C. 862, C.C.R.

49     (1833) 1 Mood.C.C. 393, C.C.R.

50     (1836) 1 Mood.C.C. 383.

51     [1954] 1 W.L.R. 64.

[1961] A.C. 103 Page  116

 

the nature of economic loss, nevertheless, the deceit has deprived him of the opportunity of prosecuting the offender and, accordingly, the falsification of the accounts amounts to forgery with intent to defraud.

 

Reg. v. Toshack52 is of great importance. It would appear that the trial judge was reluctant to put the case of forgery with intent to defraud on such an artificial ground as the loss of a piece of paper of the value of a penny, and the case was reserved for the opinion of all the judges, who held on the seventh and ninth counts of the indictment that the forging of the certificate was with intent to deceive and defraud. It is to be observed that the only way in which the examiners acting on behalf of Trinity House could have been defrauded was in being deprived of exercising their duty to the public of conducting a proper examination. Russell on Crime, 11th ed. (Turner), pp. 1422 and 1423, treats that case as though it turned on the value of the piece of paper. That is quite wrong. Reg. v. Hodgson53 is a clear case where there was merely an intent to deceive and not an intent to defraud. It supplies an answer to the appellant’s argument that the Crown’s construction of section 4 (1) of the Act of 1913 obliterates the distinction between an intent to defraud and an intent to deceive. The April fool cases, such as a forged invitation, are de minimis, for the facts are such that the courts would not take cognisance of them. But if by means of a forged letter a person was deprived of voting for his favoured candidate at an election by being, for example, induced to present himself at the wrong polling booth, that would, it is submitted, amount to forgery with intent to defraud. In Reg. v. Moah54 the prisoner had obtained the situation of a police constable and had supported his application for the post by two testimonials which proved to have been forged. The prisoner was convicted of forgery and of uttering, and this conviction was upheld. Russell on Crime, 11th ed. (Turner), p. 1423, suggests that the decision might have turned on the fact that the prisoner intended to obtain the pay of a police constable, but it does not appear from the report that this was the ground of decision. It is submitted that the decision would have been the same if the prisoner’s intention had been to obtain the honorary position of justice of the peace. In both cases it would be forgery with intent to defraud.

 

Buckley J.’s dictum in In re London and Globe Finance Corporation55 has been queried in Russell on Crime, 11th ed.

52     4 Cox C.C. 38; 1 Den.C.C. 492.

53     Dears. & B. 3.

54     Dears. & B. 550.

55     [1903] 1 Ch. 728, 732.

[1961] A.C. 103 Page  117

 

(Turner), pp. 1428, 1429, which attempts to explain it by saying that the definition proper of “defraud” there given ends with the expression “To defraud is to deprive by deceit.” But that is to put a full stop in place of an inverted comma. The judge is dealing with two classes of definition, and there is no reason to exclude the second part at all. Indeed, Buckley J.’s use of language was so very exact that if he was proposing, as is suggested, to pass from a species to a genus in that passage he would have put it very differently from the way it is put. The only criticism that the Crown would venture to make of this definition is that it is not quite complete in that it fails to include an omission to act.

 

Rex v. Bassey56 was rightly decided and is in line with the earlier authorities, in particular, Reg. v. Toshack.57 The Crown relies on the observation of Lord Tucker in Board of Trade v. Owen,58 concurred in by the other Law Lords, that a government department acts to its detriment “if it issues a licence which enables something to be done which the department is charged with the duty to prevent.” That passage clearly conflicts with the observation of Lord Goddard C.J. in the Court of Criminal Appeal,59 but it was delivered in the light of the arguments presented to the House60 and overrules it. Lord Tucker’s statement61 which, it is conceded, is obiter, equally applies to an omission to act, namely, where by the deception a government department is prevented from taking action by discharging the duty laid upon it.

 

The Court of Criminal Appeal correctly state the law when they say62: “While, no doubt, in most cases of an intention to defraud the intention is to cause an economic loss, there is no reason to introduce any such limitation. Provided that the intention is to cause the person deceived to act to his real detriment, it matters not that he suffers no economic loss. It is sufficient if the intention is to deprive him of a right or to induce him to do something contrary to what it would have been his duty to do, had he not been deceived.” The only gloss which the Crown would put on this definition is that it is sufficient if the intention induces the person deceived to act to his own or some other person’s detriment.

56     (1931) 47 T.L.R. 222; 22 Cr.App. R. 160.

57     4 Cox C.C. 38; 1 Den.C.C. 492.

58     [1957] A.C. 602, 622.

59     Sub nom. Reg. v. Owen [1957] 1 Q.B. 174, 187.

60     [1957] A.C. 602, 609, 617.

61     Ibid. 622.

62     [1960] 2 Q.B. 445, 457.

[1961] A.C. 103 Page  118

 

The Crown concedes that the appellant did not understand the nature of the functions of the Capital Issues Committee, but it is submitted that he intended to deceive anyone who saw the relevant documents into thinking that they were hire-purchase agreements and not direct loans, and that that intention is sufficient to constitute an intention to defraud.

 

In conclusion, where the words “intent to defraud” occur in the Forgery Act, 1913, the legislature intended those words to be understood in the light of their common law meaning and interpretation. All the institutional writers and a considerable number of the reported decisions suggest that the test was detriment or injury to another person’s rights and not economic or pecuniary loss. The statutory history of intent in forgery before 1913 is anomalous and confusing, and in no statute before the Act of 1913 is there a clear antithesis between an intent to defraud and an intent to deceive. Accordingly, the draftsman of the Act of 1913 must be presumed to have drafted the Act as he did in the light of previous decisions and, in particular, In re London and Globe Finance Corporation,63 and, on the principle of Barras v. Aberdeen Steam Trawling and Fishing Co.,64 the words in question should bear the same meaning as in that decision. In those circumstances, the Common Serjeant’s direction to the jury was correct and the conviction should be upheld.

 

[Reference was also made to Stephen’s History of the Criminal Law of England (1883), vol. 3, pp. 178 and 180; Hudson’s Treatise of the Court of Star Chamber, pp. 66, 67, 70, 71 (published in Hargreave’s Collectanea Juridica (1792), vol. 2); Bacon’s Abridgement, 7th ed. (1832), vol. 3, pp. 744-746; Reg. v. Marcus65; Reg. v. Hoatson66; Reg. v. Nash67; Reg. v. Fowler68; Reg. v. Potter.69]

 

Buzzard following. There is one element of Buckley J.’s definition70 of “intent to defraud” which is wrong, and which could cause confusion in the criminal law if acted upon. Plainly, “to deceive is … to induce a man to believe that a thing is true which is false …,”71 but deceit is not an essential element of fraud, for one can defraud without the use of deceit: see section 80 of the Larceny Act, 1861. Conversion of trust property with intent to defraud, which is the subject of that

63     [1903] 1 Ch. 728.

64     [1933] A.C. 402, 411.

65     2 C. & K. 356.

66     2 C. & K. 777.

67     2 Den. 493.

68     [1956] Crim.L.R. 330.

69     [1958] 1 W.L.R. 638.

70     [1903] 1 Ch. 728, 732.

71     Ibid.

[1961] A.C. 103 Page  119

 

section, is quite inconsistent with Buckley J.’s definition,72 because a person converting property to his own use and benefit does not intend by deceit to induce another to act or refrain from acting; he simply pockets, for example, the fund in question. Attention is drawn to that particular section because it contains the expression “intent to defraud,” as do sections 83 and 84 of the same Act. In sections 83 and 84 deceit is implicit in the actus reus, whether or not deceit be necessary in the definition of “intent to defraud.” Further, the word “fraudulently” is used in section 1 of the Larceny Act, 1916, and no one has ever suggested that deceit is a necessary element of larceny. The word “fraudulently” is of very ancient origin and is to be found in Roman law: East’s Pleas of of the Crown (1803), vol. 2, p. 553, cites Justinian’s Institutes, Book IV, Title I: “Fraudulently” and “intent to defraud” are synonymous in so far as the element of fraud is concerned, and in nine cases out of ten it is sufficient to tell the jury that they mean “dishonestly”: Rex v. Carpenter.73

 

Gardiner Q.C. in reply. There are three issues: (1) What is the true meaning of “intent to defraud” in the Forgery Act, 1913? (2) What was the intention of the appellant? (3) A comparison between questions (1) and (2). The second issue is a question of fact, and it is not now open to the Crown to suggest that the appellant’s intention was to defraud the auditors or shareholders of the hire-purchase companies or the credit restriction authorities, for there is no evidence on which to found such a submission.

 

In the present case there is an element of remoteness which does not appear in any of the reported cases. It is the only case in which there has been a conviction where the person whom it was contemplated would put forward the forged document was not under the accused’s control: contrast Reg. v. Moah74; Reg. v. Fowler75; Rex v. Martin76; Reg. v. Hoatson77; Reg. v. Wilson78; Reg. v. Sharman79; Rex v. Parker80; Rex v. Bennet and Newton81; Reg. v. Wines82; Board of Trade v. Owen.83 It is to be observed that in Reg. v. Toshack84 and Reg v. Moah,85 on which the Crown greatly rely, it was the accused who presented the forged document. The present case is wholly exceptional

72     [1903] 1 Ch. 728, 732.

73     22 Cox C.C. 618.

74     7 Cox C.C. 503.

75     [1956] Crim.L.R. 330.

76     1 Mood.C.C. 483.

77     2 C. & K. 777.

78     1 Den. 284.

79     1 Dears.C.C. 285.

80     74 J.P. 208.

81     9 Cr.App.R. 146.

82     [1954] 1 W.L.R. 64.

83     [1957] A.C. 602.

84     4 Cox C.C. 38.

85     7 Cox C.C. 503.

[1961] A.C. 103 Page  120

 

in this respect. There may well be an element of public mischief in addition to conspiracy in the facts here, but these factors are quite irrelevant.

 

As to the history of the law of forgery, although the picture is very confused, it is at least plain that at common law there was at the outset a clear distinction between the forging of public documents and the forging of private documents: see Hawkins’ Pleas of the Crown, 8th ed., vol. 1, p. 263. Further, it is plain that at common law it was necessary to mention in the indictment the person whom it was alleged the accused intended to defraud, not necessarily by name, but it was not sufficient merely to allege in the indictment a general intent to defraud. On the history of forgery generally: see Russell on Crime, 11th ed., pp. 1395 et seq. which is adopted.

 

As regards the history of the statutory offence of uttering forged private documents, the statutes over a period of 530 years are, with a few exceptions, remarkably consistent in that it was not an offence for a person knowingly to utter a forged private document unless it was uttered with intent to defraud. Accordingly, in construing the provisions of the Forgery Act, 1913, which it is to be remembered was a consolidating Act, it is the statutory history of forgery and not the history of forgery at common law which must be borne in mind.

 

There is no room for the application of the doctrine of reenactment in relation to Buckley J.’s dictum86 and the Forgery Act, 1913. [Reference was made to Barras’s case.87] It was plainly obiter, the decision not being one concerning forgery, and whilst it is true that it is cited in the 23rd (1905) and 24th (1910) editions of Archbold it is significant that it is not referred to in the 7th (1909) edition of Russell, nor is it cited in any reported decision prior to the passing of the Act.

 

The Crown have contended that the test of whether there exists an intent to defraud is to be found by ascertaining whether another has suffered a loss to his rights. But, with the exception of Reg. v. Toshack,88 there is no sign of such a principle to be found in the authorities. It is true that in Stephen’s History of the Criminal Law, vol. 2, p. 122, vol. 3, pp. 186 and 187, there are references to “loss” or the “risk of loss” as a test of fraud or an intent to defraud, but it is submitted that in their context those passages refer to “financial loss.” Reg. v. Toshack89 is

86     [1903] 1 Ch. 728, 732.

87     [1933] A.C. 402, 411.

88     4 Cox C.C. 38.

89     Ibid.

[1961] A.C. 103 Page  121

 

of little assistance, for all that the court was considering was whether the indictment was good. Further, Rex v. Bassey90 can be supported in that it was rightly decided on the ground of public mischief, which it is submitted, was the main ground of decision. It was also suggested that Channell J.’s direction to the jury in Rex v. Carpenter,91 namely, was the statement “dishonestly made”? could be applied as a test of forgery with intent to defraud: but see Rex v. Hunt92 and Rex v. Pickup.93

 

The Crown’s definition of “intent to defraud” is so wide that it would cover any interference with another’s rights or duties. It would cover even the “April Fool” type of case, and it is no answer on the question of principle to suggest that the courts would treat such cases as de minimis. Further, it effaces the distinction between an intent to defraud and an intent to deceive for which there is no warrant in light of the long history of statutory forgery. The two “intents” are placed side by side for the first time in the Act of 1913, thus showing that the legislature intended that there should be a sharp distinction between the two intents. That this was the intention of Parliament is strongly reinforced by the subsequent enactment of section 112 (1) of the Road Traffic Act, 1930, relating to forged certificates of insurance, which, on the Crown’s argument, would be a completely superfluous provision, namely, by insertion of “intent to deceive” only. It is plain that in the context of the Forgery Act, 1913, an “intent to defraud” connotes an intent to deprive another of some valuable thing, namely, money or money’s worth.

 

[Reference was also made to Glanville Williams, Criminal Law, The General Part, p. 77; 5 Eliz. 1, c. 14, s. 3; 37 Geo. 3, c. 122; 7 Geo. 4, c. 16, s. 38; 8 Edw. 7, c. 69, s. 38; Rex v. Firling94; Reg. v. Syed Husain95; Jan Mahomed v. Reg.96]

 

Their Lordships took time for consideration.

 

March 24. LORD RADCLIFFE. My Lords, I have had the opportunity of reading in advance the opinion that will be delivered by my noble and learned friend, Lord Denning. I agree with what he says and I share his view that this appeal must be dismissed. I propose, therefore, to confine what I say to expressing

90     22 Cr.App.R. 160.

91     22 Cox C.C. 618.

92     13 Cr.App.R. 155.

93     22 Cr.App.R. 186.

94     (1904) 18 E.D.C. 11 (S.A.).

95     (1885) I.L.R. 7 All. 403.

96     (1884) I.L.R. 10 Cal. 584.

[1961] A.C. 103 Page  122

 

my opinion upon the central question of law involved, the question which has been the cause of the case reaching this House.

 

What is the meaning of the words “intent to defraud” which occur in section 1 and, more particularly, in section 4 (1) of the Forgery Act, 1913? In my opinion an answer cannot be supplied to that question which does not regard both the context of the Act in which they appear and the previous history of legal decisions as to the meaning of the word “defraud” when used as an element of the crime of forgery. There are, accordingly, two preliminary considerations which commend themselves as being material to this approach.

 

The first is that the Act itself recognises that there may be at least a significant difference between an intent to defraud and an intent to deceive. For whereas most of the offences for which punishment is prescribed are punishable whether done with intent to deceive or intent to defraud, some acts of forgery can be a crime only if done with intent to defraud (see section 2 (1) and (2) and section 4 (1)). Up till the date of this Act forgery statutes, of which there had been innumerable instances over the preceding 500 years, while often (though not by any means consistently) defining the offence explicitly in terms of “intent to defraud,” had hardly ever used the phrase “intent to deceive” in connection with it. The first and only occasion on which this occurred, so far as the researches of the learned Solicitor-General have taken us, was in the Act of 1803 (43 Geo. 3, c. 139), which by section 1 dealt with the crime of forging bills of exchange, promissory notes, etc. “with intent to deceive or defraud” His Majesty or other persons. The combined phrase does not seem to have been employed again in a forgery Act, since neither of the consolidating statutes of 1830 (11 Geo. 4 & 1 Will. 4, c. 66) and 1861 (24 & 25 Vict. c. 98) reproduced the substance of section 1 of the Act of 1803 with anything more than the single phrase “intent to defraud.” On the other hand, “intent to deceive or defraud” did occur in other nineteenth century Acts relating to offences akin to forgery, e.g., in section 84 of the Larceny Act, 1861, and section 166 of the Companies Act, 1862. No instance, however, has been discovered of a statute defining forgery in terms of “intent to deceive” except as an alternative to the phrase “intent to defraud.”

 

It seems fair to say, then, that the Act of 1913 established the first occasion upon which in legislation about forgery the two phrases “intent to defraud” and “intent to deceive” were brought into any regular combination with or dissociation

[1961] A.C. 103 Page  123

 

from each other. While this compels us, I think, to treat them as not being synonymous with each other for the purposes of the Act, I do not conclude, on the other hand, that it requires us for the same purpose to give a more limited meaning to “defraud” than it would otherwise have had, unless not doing so would involve us in finding no independent meaning at all for the word “deceive.”

 

The second consideration which weighs with me is that by 1913 the word “defraud,” when used in connection with forgery, had been a frequent subject of judicial decision and institutional comment. On most occasions the exposition had related to forgery as a crime at common law: but forgery was also becoming increasingly a statutory crime by virtue of those various Acts which had either punished forgery without explicitly referring to intent to defraud, or had explicitly imported that intent into the offence proscribed. The Act of 1913, unlike its predecessors of 1830 and 1861, was not merely an Act consolidating a number of previous enactments on the subject of forgery. Its title declares it to be an Act “to consolidate, simplify, and amend the Law relating to Forgery.” In my opinion it superseded forgery as a crime at common law in the cases to which it applied, though there still remained such a crime (see section 14), just as much as it superseded the statutory offences whose constituent Acts it amended or repealed. While it did essay a definition of the act of forgery: “the making of a false document in order that it may be used as genuine, and … the counterfeiting of” certain “seals or dies” (see section 1 (1)), it did not introduce any definition of “intent to defraud” or, for that matter, of “intent to deceive.” In that state of affairs I cannot doubt that the words “intent to defraud” in the Act must be understood in the light of any established legal interpretation that prevailed at the date of the passing of the Act.

 

Now, I think that there are one or two things that can be said with confidence about the meaning of this word “defraud.” It requires a person as its object: that is, defrauding involves doing something to someone. Although in the nature of things it is almost invariably associated with the obtaining of an advantage for the person who commits the fraud, it is the effect upon the person who is the object of the fraud that ultimately determines its meaning. This is none the less true because since the middle of the last century the law has not required an indictment to specify the person intended to be defrauded or to prove intent to defraud a particular person.

[1961] A.C. 103 Page  124

 

Secondly, popular speech does not give, and I do not think ever has given, any sure guide as to the limits of what is meant by “to defraud.” It may mean to cheat someone. It may mean to practise a fraud upon someone. It may mean to deprive someone by deceit of something which is regarded as belonging to him or, though not belonging to him, as due to him or his right. It passes easily into metaphor, as does so much of the English natural speech. Murray’s New English Dictionary instances such usages as defrauding a man of his due praise or his hopes. Rudyard Kipling in the First World War wrote of our “angry and defrauded young.” There is nothing in any of this that suggests that to defraud is in ordinary speech confined to the idea of depriving a man by deceit of some economic advantage or inflicting upon him some economic loss.

 

Has the law ever so confined it? In my opinion there is no warrant for saying that it has. What it has looked for in considering the effect of cheating upon another person and so in defining the criminal intent is the prejudice of that person: what Blackstone (Commentaries, 18th ed., vol. 4, at p. 247) called “to the prejudice of another man’s right.” East, Pleas of the Crown (1803), vol. 2, at pp. 852, 854, makes the same point in the chapter on Forgery: “in all cases of forgery, properly so called, it is immaterial whether any person be actually injured or not, provided any may be prejudiced by it.”

 

Of course, as I have said, in ninety-nine cases out of a hundred the intent to deceive one person to his prejudice merely connotes the deceiver’s intention of obtaining an advantage for himself by inflicting a corresponding loss upon the person deceived. In all such cases the economic explanation is sufficient. But in that special line of cases where the person deceived is a public authority or a person holding a public office, deceit may secure an advantage for the deceiver without causing anything that can fairly be called either a pecuniary or an economic injury to the person deceived. If there could be no intent to defraud in the eyes of the law without an intent to inflict a pecuniary or economic injury, such cases as these could not have been punished as forgeries at common law, in which an intent to defraud is an essential element of the offence, yet I am satisfied that they were regularly so treated.

 

I think that it is sufficient if I mention three authorities without analysing them. First, Rex v. Harris,1 in which a forged order purporting to be a direction from a magistrate to the keeper

1     (1833) 1 Mood.C.C. 393.

[1961] A.C. 103 Page  125

 

of a county gaol to discharge a prisoner was held by all the judges on the case reserved to be capable of sustaining a conviction for forgery at common law. Secondly, in Reg. v. Sharman,2 a forged certificate giving false references as to employment, put forward in order to obtain appointment as a schoolmaster, was held to support a similar conviction. The indictment in that case charged “intent to obtain the emoluments and to deceive.” Thirdly, there is Reg. v. Moah,3 in which the Court of Criminal Appeal upheld a conviction for forgery at common law where a forged letter of recommendation had been delivered to a chief constable by a forger for the purpose of obtaining the situation of a police constable.

 

Reg. v. Toshack4 seems to me to be the most explicit authority on the subject prior to 1913. Toshack had forged a testimonial over the purported signature of a master of a sailing ship in order to deceive Trinity House examiners and so obtain his master’s certificate. He was tried on an indictment containing a number of counts, including one of unjustly obtaining a piece of paper, value one penny (the master’s certificate), but the case as reported only dealt with the seventh and ninth counts, charging respectively that he forged the testimonial with intent to injure, deceive, prejudice and defraud the examiners, and that he did the same thing for the purpose of deceiving Trinity House. He was convicted of the offence of forgery at common law; and the conviction on these two counts being reserved for the opinion of the judges (Pollock C.B., Patteson, Wightman JJ., Platt B. and Talfourd J.), their unanimous opinion delivered by Alderson B. was that the offence had been committed.

 

In my opinion it is clear that in connection with this offence the intent to defraud existed when the false document was brought into existence for no other purpose than that of deceiving a person responsible for a public duty into doing something that he would not have done but for the deceit, or not doing something that but for it he would have done. Correspondingly, to put such a document forward with knowledge of its falsity and with a similar intent was to commit the crime of uttering it. That seems to me to be the essential point of the present appeal.

 

Inevitably, the argument in this House concentrated much attention upon what was said by Buckley J. in the course of his judgment in In re London and Globe Finance Corporation Ltd.,5

2     (1854) 1 Dears.C.C. 285.

3     (1858) 7 Cox C.C. 503.

4     (1849) 4 Cox C.C. 38; 1 Den.C.C. 492.

5     [1903] 1 Ch. 728, 732.

[1961] A.C. 103 Page  126

 

when he took occasion to point out the distinction as he saw it between an intention to deceive and an intention to defraud. The passage was criticised by the appellant’s counsel as being either incomplete or inaccurate as an exhaustive statement of the law on the point: on the other hand, it was put forward on behalf of the Crown as being an authoritative exposition of the meaning of “intent to deceive” and “intent to defraud” in the crime of forgery, which must be taken as adopted and read into those phrases when they occur in the Act of 1913. I think that the criticism is misconceived and I think, on the other hand, that the argument for the Crown goes too far: but before I say more it is convenient to set out the familiar passage in full. “To deceive,” he said, “is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. To defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury. More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action.”

 

There is no doubt that what was said was obiter. What the learned judge was deciding in the case was whether to sanction a prosecution of Mr. Whittaker Wright under the Larceny Act, 1861, ss. 83 and 84, and the Companies Act, 1862, s. 166, at the expense of the company’s funds. It was not necessary to that decision to offer a definition of either one or both of the “intents” that would be involved or to express himself in the terms of a judge directing a jury. There is no reason to suppose that he intended to do more than give a general indication of the nature of the offences that were in question and of the distinction between them. I cannot accept that a judicial utterance of this kind could ever qualify as an authoritative exposition of words employed in a subsequent statute within the doctrine laid down by this House in Barras v. Aberdeen Steam Trawling and Fishing Co.,6 where the meaning of the single word “wreck” was in question.

 

On the other hand, I do not think that what he said is any the less valuable because it does not contain an exhaustive account of the legal significance of deceit and fraud. Certainly, so far as civil liability is concerned, deceit can involve a reckless indifference to truth or falsity as well as the deliberate making of false statements; and in all cases it may involve the inducing of a man

6     [1933] A.C. 402; 49 T.L.R 391.

[1961] A.C. 103 Page  127

 

to believe a thing to be false which is true as well as to believe to be true what is false. But the learned judge was speaking of the nature of criminal intent in the limited field of activities such as wilful destruction or falsification of books and publication of false statements or accounts, and, apart from that, there would be no difficulty in enlarging upon his text if it were necessary to do so in the context of any particular case. Again, it is said and, I think, justly, that to defraud must involve something more than the mere inducing of a course of action by deceit. But these words, which are found in the last sentence of the whole passage, must be understood in the light of what had gone before. They do not qualify the description of “defraud” as “by deceit to induce a man to act to his injury”: what they do is to point the contrast between deceiving, the essence of which is to bring about a state of mind, and defrauding, the essence of which is to bring about a course of action, whether doing something or refraining from something.

 

It is this last point which constitutes the most important element in the whole passage. It is obvious that it was at once appreciated that it expressed briefly and with felicity the significant distinction between the two kinds of intent when they were referred to together or apart in statutes dealing with criminal offences. The 1905 (23rd) edition of Archbold’s Criminal Pleading and Practice incorporated Buckley J.’s words in full, and they have regularly appeared in subsequent editions. By 1913 they had been cited with approval in a criminal appeal as illustrating or defining “intent to defraud” (see Rex v. Bennett and Newton7. They were treated as containing an authoritative distinction between “defraud” and “deceive” in Rex v. Bassey,8 and by 1953 they had become so much the established text as to be referred to by the Lord Chief Justice, Lord Goddard, as the “locus classicus, which has been cited with approval over and over again” (Reg. v. Wines9. I think that it would be perverse not to recognise that ever since they were reported they have been accepted and used in the criminal courts as providing a satisfactory account of the essentials of “defrauding” on the one hand and “deceiving” on the other. I imagine that a clear phrasing of the distinction was the more welcome because in the past judges dealing with forgery as a crime at common law had not always thought it necessary to distinguish between an intent

7     (1913) 9 Cr.App.R. 146.

8     (1931) 47 T.L.R. 222; 22 Cr.App.R. 160.

9     [1954] 1 W.L.R. 64; 37 Cr.App.R. 197.

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to deceive and an intent to defraud, and had sometimes spoken of the latter under the title of the former. Thus East, Pleas of the Crown, at p. 853, quotes Buller J. and Eyre B. as each having described forgery as “the making a false instrument with intent to deceive” in different trials, and adds the comment: “In the word deceive must doubtless be intended to be included an intent to defraud: and so it was defined …”

 

It was objected that, if defrauding was treated as meaning something so wide as any deceiving of another to his injury, his detriment or his prejudice, it provided a dangerously wide definition of a crime. It was said, for example, that by such a definition the writing of a faked letter to another giving him a fictitious appointment would constitute the crime of forgery. I do not know that I should regard this as so startling a result as to lead me to reconsider what seems to be the long-accepted definition of defrauding: after all, the crime in question only exists if there is the making of a false document in order that it may be used as genuine, which is itself dishonest and a cheat. Words, not being capable of infinite division for purposes of precise measurement, can only convey ideas that are to some extent general, and I think it may be that the imposition suggested does technically constitute the crime of forgery, unless the rule that lex non curat de minimis puts it out of court, or a jury concludes that there was no real intent to prejudice or injure. I suppose that, in any event, these theoretical arguments have to be tried by a certain standard of common sense, and I cannot say that in practice I should expect to see a crop of criminal prosecutions based on tricks or deceptions of this kind.

 

There is, I think, more weight in the criticism that if, in interpreting the Act of 1913, “intent to defraud” is given as wide an ambit as to include all deceptions to another’s prejudice there is virtually no ambit left to be covered by the other statutory intent, “intent to deceive,” since it is difficult to imagine an instance of a man forging a document in order that it should be used as genuine without having at the same time an intention of affecting another’s conduct to his prejudice. It is difficult, but it is not impossible. There can be cases, I think, in which there is an intent to deceive and no more. Reg. v. Hodgson10 may illustrate the kind of thing that can occur. There a diploma of the College of Surgeons had been altered by substituting Hodgson’s for the genuine name: on the other hand, Hodgson had made no use of

10     (1856) Dears. & B. 3.

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the document, so altered, except to hang it on the wall of his room and show it to two friends who inquired as to his qualifications. It was held by the court that this did not constitute forging or uttering at common law, because there was no criminal intent in what he did. It is not clear that the court had in mind any precise distinction between defrauding and deceiving and, as I have said, the distinction was not always made with regard to the crime at common law. But if a question arose under the Act of 1913 upon a similar alteration of some document falling within, say, section 3 or section 4 (2), I think that it would be hard to say that there had not been an “intent to deceive” within the meaning of the Act.

 

I am therefore of opinion that the judgment of the Court of Criminal Appeal, the subject of the present appeal, was clearly right. The view there taken is in accordance with what was said by my noble and learned friend, Lord Tucker, in Board of Trade v. Owen,11 and the fuller argument in this case has not led me to think that it needs any qualification.

 

LORD TUCKER. My Lords, I agree that this appeal should be dismissed for the reasons which have been stated by my noble and learned friend on the Woolsack. I have also had the advantage of reading in print the opinion which is to be delivered by my noble and learned friend, Lord Denning, and I desire to express my agreement therewith.

 

LORD KEITH OF AVONHOLM. My Lords, I agree.

 

LORD DENNING stated the facts and the direction of the Common Serjeant on the appellant’s two defences (as stated above), and continued: My Lords, such being the direction of the Common Serjeant, these complaints were made of it:

 

(1) That the Common Serjeant failed to give the jury a clear direction as to the distinction between an intent to defraud and an intent to deceive.

(2) That the Common Serjeant incorrectly told the jury that on Welham’s own case he had an intention to defraud.

(3) That there was no evidence that Welham had an intention to defraud.

(4) That in any case it should have been left to the jury to say whether Welham had an intention to defraud.

 

11     [1957] A.C. 602, 622; [1957] 2 W.L.R. 351; [1957] 1 All E.R. 411; 41 Cr.App.R. 11.

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My Lords, I think that all these complaints depend on whether, on Welham’s own evidence in the witness-box, he had an intent to defraud: for if he had, then the Common Serjeant was entitled to direct the jury as he did. There was no need for him to embark on a discussion of the difference between an intent to defraud and an intent to deceive, if the evidence did not give rise to it. And there was no need for him to leave it to them as an open question when Welham’s own evidence permitted only of one answer. He said to them, in effect, what many judges have said before: “Why, even if you accept his own evidence on this point, you may well think he had an intent to defraud.”

 

The crucial question is, therefore, what is the meaning of the words “intent to defraud” in the Forgery Act, 1913, which were contained in the indictment. To determine this question I must set out the material sections of the Act:

 

“1.     – (1) For the purposes of this Act, forgery is the making of a false document in order that it may be used as genuine … and forgery with intent to defraud or deceive, as the case may be, is punishable as in this Act provided. …

“4.     – (1) Forgery of any document, which is not made felony under this or any other statute for the time being in force, if committed with intent to defraud, shall be a misdemeanour …

“(2) Forgery of any public document which is not made felony under this or any other statute for the time being in force, if committed with intent to defraud or deceive, shall be a misdemeanour …

“6.     – (1) Every person who utters any forged document … shall be guilty of an offence of the like degree … and on conviction thereof shall be liable to the same punishment as if he himself had forged the document …

 

“(2) A person utters a forged document … who, knowing the same to be forged, and with either of the intents necessary to constitute the offence of forging the said document … uses, offers, publishes, delivers, disposes of, … or puts off the said forged document.”

 

My Lords, the declared object of the Forgery Act, 1913, is “to consolidate, simplify, and amend the Law relating to Forgery and kindred Offences”: and if its language were clear and unambiguous, it would not be right to embark upon a close consideration of previous authorities in order to ascertain its meaning: see Bank of England v. Vagliano Brothers12 by Lord Herschell. But

12     [1891] A.C. 107, 144, 145; 7 T.L.R. 333.

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the more I consider the phrase “with intent to defraud” in this statute, the more doubtful do I find its import. It appears to be used in contrast to the phrase “with intent to deceive,” but whilst I can see there may on occasion be a distinction between these two intents, I find it extremely difficult to say where the one intent ends and the other begins. Much valuable guidance is to be obtained from the dictum of Buckley J. in the Whittaker Wright case, In re London and Globe Finance Corporation,13 but this has been criticised by modern scholars. It has even been hinted that it conceals within it the fallacy of the illegitimate antistrophe, which sounds, I must say, extremely serious. These scholars seem to think they have found the solution. “To defraud,” they say, involves the idea of economic loss. I cannot agree with them on this. If a drug addict forges a doctor’s prescription so as to enable him to get drugs from a chemist, he has, I should have thought, an intent to defraud, even though he intends to pay the chemist the full price and no one is a penny the worse off.

 

Seeing, therefore, that the words of the statute are of doubtful import, it is, I think, legitimate to turn for guidance to the previous state of the law before the Act. And here I would say at once that the phrase “with intent to defraud” has been the standard usage of lawyers in defining forgery for over 160 years. In 1796 all the judges of England laid down the definition of forgery as “the false making of a note or other instrument with intent to defraud” (see Rex v. Parkes and Brown14; and ever since that time it has been held that the very essence of forgery is an intent to defraud, and it must be laid in the indictment (see East, Pleas of the Crown (1803), vol. 2, p. 988; Chitty, Criminal Law (1826), vol. 3, pp. 1039, 1042). I cannot help thinking that when Parliament in section 4 (1) of the Act of 1913 used a phrase so hallowed by usage, it used it in the sense in which it had been used by generations of lawyers. It was never by them confined to the causing of economic loss. Let me prove this by taking some examples: Take the case where a man forges a reference as to character, intending to get employment by means of it. It is clear forgery: see Reg. v. Sharman15; Reg. v. Moah.16 But there may well be no economic loss intended. The man may intend, if he gets the job, to render full service in return for his wages. Or the post which he seeks may be unpaid, such as a justice of the peace. But he has the intent to defraud all the same.

 

13     [1903] 1 Ch. 728, 732.

14     (1797) 2 Leach 775, 785.

15     (1854) 1 Dears.C.C. 285.

16     (1858) 7 Cox C.C. 503.

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Take next the case where a servant steals his master’s money and afterwards forges a receipt or other document so as to cover up his defalcations. This, too, is forgery: see Rex v. Martin.17 He does not intend to deprive his master of anything: for he has already done that. He may not even do it so as to keep his job, because he may be under notice. What he really intends to do is to cover up his tracks so that he should not be found out. But he has the intent to defraud none the less.

 

Then there are the cases concerned with the release of prisoners. If a man forges an order or letter to the sheriff or to the governor of a prison, intending thereby to secure the release of a prisoner, he is guilty of forgery at common law: see Fawcett’s case18 and Rex v. Harris.19 There is no idea of economic loss here. He has no intent to deprive the gaoler of any money or valuable thing. But at common law he is held to have an intent to defraud. Mr. Gardiner rather suggested that the reason for those decisions was that the documents were documents of a public nature. But I do not so read them. Even if they were public documents it was still essential that there should be an intent to defraud. Ever since Ward’s case20 in 1726 public and private documents were at common law on the same footing in this respect: see East’s Pleas of the Crown, pp. 859-861. The forgery of any of them was a misdemeanour if done with intent to defraud, but not otherwise: see Reg. v. Hodgson21 by Jervis C.J.

 

There remains the case of Reg. v. Toshack,22 which is to my mind decisive. Toshack, a seaman, forged a certificate of good conduct so as to be admitted to sit for an examination for his master’s certificate. He had no intention to deprive the examiners or Trinity House of any money or valuable thing. The piece of paper, value one penny, was not mentioned in the counts on which he was convicted. But he was held guilty of forgery. Alderson B. said: “It does amount to a very serious offence if persons do forge certificates of this sort and are found to utter them for the purpose of deceiving the Trinity House.”

 

What is the common element in all these cases? It is, I think, best expressed in the definition given by East in his Pleas of the Crown, vol. 2, p. 852. He treats the subject, I think, better than any writer before or since: “To forge, (a metaphorical expression borrowed from the occupation of the smith), means,

 

17     (1836) 1 Mood.C.C. 483.

18     (1793) 2 East P.C. 862.

19     1 Mood.C.C. 393.

20     2 Ld.Raym. 1461; 3 Ld.Raym. 358; 2 Stra. 747.

21     Dears. & B. 3, 8.

22     4 Cox C.C. 38, 41.

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properly speaking, no more than to make or form: but in our law it is always taken in an evil sense; and therefore Forgery at common law denotes a false making (which includes every alteration of or addition to a true instrument), a making malo animo, of any written instrument for the purpose of fraud and deceit. This definition results from all the authorities ancient and modern taken together.”

 

That was written in 1803, but it has been always accepted as authoritative. It seems to me to provide the key to the cases decided since it was written, as well as those before. The important thing about this definition is that it is not limited to the idea of economic loss, nor to the idea of depriving someone of something of value. It extends generally to the purpose of fraud and deceit. Put shortly, “with intent to defraud” means “with intent to practise a fraud” on someone or other. It need not be anyone in particular. Someone in general will suffice. If anyone may be prejudiced in any way by the fraud, that is enough.

 

At this point it becomes possible to point the contrast in the statute between an “intent to deceive” and an “intent to defraud.” “To deceive” here conveys the element of deceit, which induces a state of mind, without the element of fraud, which induces a course of action or inaction. Take the case of a private document. For instance, where a man fabricates a letter so as to puff himself up in the opinion of others. Bramwell B. put the instance: “If I were to produce a letter purporting to be from the Duke of Wellington inviting me to dine, and say, ‘See what a respectable person I am'”: Reg. v. Moah.23 There would then be an intent to deceive but it would not be punishable at common law or under the statute, because then it would not be done with intent to defraud. Take next the case of a public document. For instance, a parish register. If a man should falsify it so as to make himself appear to be descended of noble family, for the sake of his own glorification, he would not be guilty of an intent to defraud and would therefore not be punishable at common law (see Reg. v. Hodgson24, but he would have an intent to deceive and he would be punishable under the present statute, as indeed he was under its predecessors, such as the Forgery Act, 1861, s. 36.

 

So much for the principal point under discussion. Mr. Gerald Gardiner did make a further point. He said that the intent must be to defraud the particular person to whom the document is first

23     7 Cox C.C. 503, 504.

24     Dears. & B. 3, 8.

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presented or his agent, and that it was insufficient if he intended to defraud somebody else. This is not correct. It has long been ruled that it is no answer to a charge of forgery to say that there was no intent to defraud any particular person, because a general intent to defraud is sufficient to constitute the crime. So also it is no answer to say that there was no intent to defraud the recipient, if there was intent to defraud somebody else: see Rex v. Taylor.25

 

In my judgment, section 4 (1) of the Forgery Act, 1913, only restates the requirements of the common law of forgery. The “intent to defraud” there mentioned is the same intent as was required by the common law. It is satisfactory to find that in the cases subsequent to the Act the courts have been giving it the same meaning as they did before (Rex v. Bassey26 is particularly in point), and I am glad to find this confirmed by what my noble and learned friend, Lord Tucker, said in Board of Trade v. Owen.27

 

Applying this meaning to the present case, it appears that Welham on his own evidence had an intent to defraud, because he uttered the hire-purchase documents for the purpose of fraud and deceit. He intended to practise a fraud on whomsoever might be called upon to investigate the loans made by the finance companies to the motor dealers. Such a person might be prejudiced in his investigation by the fraud. That is enough to show an intent to defraud. I think the Common Serjeant was entitled to direct the jury as he did.

 

I find myself in entire agreement with the Court of Criminal Appeal, and I would dismiss this appeal.

 

LORD MORRIS OF BORTH-Y-GEST. My Lords, I agree that this appeal should be dismissed for the reasons which have been given by my noble and learned friends.

Appeal dismissed.

Solicitors: Bellamy, Bestford & Co.; Director of Public Prosecutions.

J. A. G.

25     (1779) 1 Leach 214.

26     47 T.L.R. 222.

27     [1957] A.C. 602, 622.

 

 

 

 

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