THE THEFT ACT 1968 (extracted from Vol. 12 Halsbury's All England Statutes)

A person who by any deception dishonestly obtains property belonging to another, with the intention of permanently depriving the other of it, shall on conviction on indictment be liable to imprisonment for a term not exceeding ten years.

For the purposes of this section a person is to be treated as obtaining property if he obtains ownership, possession or control of it, and "obtain" includes obtaining for another or enabling another to obtain or retain.

For the purposes of this section "deception" means any deception (whether deliberate or reckless) by word or conduct as to fact or as to law, including a deception as to the present intentions of the person using the deception or any other person.

Obtaining pecuniary advantage by deception

(1) A person who by any deception dishonestly obtains for himself or another any pecuniary advantage shall on conviction on indictment be liable to imprisonment for a term not exceeding five years.

False Accounting.

(1) Where a person dishonestly, with a view to gain for himself or another with intent to cause loss to another:-

(a)  Destroys, defaces, conceals or falsifies any account or any record or document made or required for any accounting purpose; or

(b) in furnishing information for any purpose produces or makes use of any account, or any such record or document as aforesaid, which to his knowledge is or may be misleading, false, deceptive in a material particular; he shall upon conviction on indictment be liable to imprisonment for a term not exceeding seven years.

(2) For the purposes of this section, a person who makes or concurs in making in an account or other document an entry which is or may be misleading, false or deceptive in a material particular or who omits or concurs in omitting a particular from an account or other document is to be treated as falsifying the account or document.

Evasion of liability by deception

2 (1) subject to subsection (2) below, where a person by any deception -

dishonestly secures the remission of the whole or part of any existing liability to make a payment, whether his own liability or another's; or

with intent to make permanent default in whole or in part on any existing liability to make a payment, or with intent to let another do so, dishonestly induces the creditor or any person claiming payment on behalf of the creditor to wait payment (whether or not the due date of payment is deferred) or to forgo payment; or

dishonestly obtains any exemption from or abatement of liability to make a payment; he shall be guilty of an offence.

2-101 Belief in a right to deprive.

The appropriator who believes "that he has in law the right to deprive" of property the person to whom it belongs is not guilty of theft, for his appropriation is not to be regarded as dishonest (s.2(1)(a)). This belief corresponds to the "claim of right made in good faith" the absence of which was formerly an ingredient of larceny. D's belief that he has a right to deprive P will protect him however mistaken or unreasonable it is, even though the claim he makes is of a kind completely unknown to the law. The less plausible the claim, the less likely it is, of course that anyone will believe that it was entertained. But it is sufficient for D to raise reasonable doubt as to his having had the belief in question, the prosecution must prove that the appropriation was dishonest.

"A person is guilty of forgery if he makes a false instrument, with the intention that he or another shall use it to induce somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person's prejudice." Section 1of the Forgery and Counterfeiting Act 1981.

The offence is punishable on conviction on indictment with 10 years imprisonment. Its elements will be considered under the following headings:-

Instrument.

False instrument.

Making a false instrument.

Acceptance of the instrument as genuine.

Causation.

Section 8(1) Defines the word 'instrument' as (a) any document, whether of a formal or informal character.

Making a false instrument.

The actus reus of forgery is the making of a false instrument. This obviously includes the original production of an instrument which is false as soon as it is produced. But section 9(2) provides:-

"A person is to be treated for the purposes of this Part of this Act as making a false instrument if he alters an instrument so as to make it false in any respect (whether or not it is false in some other aspect apart from that alteration)"

Making an instrument which is false.

Making a genuine instrument false, and

Making a false instrument even falser.

Acceptance of the instrument as genuine

The first element of the mens rea of forgery is that the maker of the false instrument must intend that he or another shall use it to induce somebody to accept it as genuine.

Section 10. (3)

The phrase "to accept it as genuine" may perhaps be construed in the light of section 10(3): one accepts an instrument as genuine if one responds to it as if it were genuine. The verb "to accept" is clearly not to be confined to the sense of a physical taking, i.e. it is sufficient if the victim is intended to look at the instrument without touching or keeping it. Presumably it is also sufficient if the maker of the instrument knows that the intended victim will be indifferent whether it is genuine or not - as will often be the case where stolen cheque cards and credit cards are concerned.

Addendum by LAG: "… or the person accepting it (who may claim to be / have been a victim in the first instance) is indifferent to the loss and or the damages being caused or to be caused to the ultimate intended victim and or victims).

Prejudice

It must also be proved that the defendant intended the false instrument to be used so as to induce the person accepting it to (or not to) do some act to his own or someone else's prejudice. "Prejudice" is defined by section 10(1)

Subject to subsection (2) and (4) below, for the purposes of this Part of this Act, an act or omission intended to be induced is to a person's prejudice if, and only if, it is one which, if it occurs -

will result

in his temporary or permanent loss of property; or

in his being deprived of an opportunity to earn remuneration or greater remuneration; or

in his being deprived of an opportunity to gain a financial advantage otherwise than by way of remuneration; or

will result in somebody being given an opportunity-

(1) to earn remuneration or greater remuneration from him; or

to gain a financial advantage from him other than by way of remuneration; or

will be the result of his having accepted a false instrument as genuine in connection with his performance of any duty".

6.25 Thus the concept of an intent to cause prejudice is very similar to that of intent to defraud under the old law. It is sufficient if the maker of the instrument intents some other person to suffer financial loss, or, somebody else to gain a financial advantage at that person's expense.

Suppression of documents

The law of forgery is supplemented by two offences under section 20 of the Theft Act 1968. The offence of procuring the execution of a valuable security by deception, contrary to section 20(2), is considered above together with the other offences of deception, it may be a useful alternative to forgery where the instrument is not made by the defendant himself but by a person whom he has deceived into making it. Section 20(1) provides:-

"A person who dishonestly, with a view to gain for himself or another or with intent to cause loss to another, destroys, defaces, conceals any valuable security, any will or other testamentary document or any original document of or belonging to, or filed or deposited in, any court of justice or any government department shall on conviction on indictment be liable to imprisonment for a term not exceeding seven years."

The expression "dishonestly", "view to gain…or…Intent to cause loss" and "valuable security" have been dealt with. It will be recalled that an intention to avoid the exposure of previous misconduct is sufficient to constitute a view to gain, and that "valuable security" is defined in such a way as to correspond roughly to the narrow interpretations of the word "instrument" in the Forgery and Counterfeit Act 1981.

Case Law - Myers -v- Elman on appeal before the House of Lords

"An order for discovery required the client to give information in writing and on oath of all documents which are of have been in his possession or his power, whether he is bound to produce them or not, but a client cannot be expected to realise the whole scope of that obligation without the aid and advice of his solicitor, the latter has a peculiar duty as an OFFICER of the COURT carefully to investigate the position, and as far as possible, see that the order is complied with. THE SOLICITOR CANNOT SIMPLY ALLOW THE CLIENT TO MAKE WHATEVER AFFIDAVIT OF DOCUMENTS HE THINKS FIT, NOR CAN HE ESCAPE THE RESPONSIBILITY OF CAREFUL INVESTIGATION OR SUPERVISION."

Singleton J. found that both Mr. Elman and his clerk, between whom he found himself unable to draw any distinction, "knew a good deal about the matters in question," and that they had "as a result of a deliberate policy adopted in Mr. Elman's office," in the conduct of the defence, and in relation to discovery, "increased the plaintiff's difficulties, added to the expense, and obstructed the interests of justice," he held Mr. Elman guilty of professional misconduct as a solicitor and an officer of the court, and he made an order stated in the first paragraph".

"If this is a correct view no doubt it would follow that the solicitor ought not to be ordered to pay costs unless he has himself been guilty of disgraceful conduct; and it would follow that however negligent or obstructive or improper his conduct of the proceedings as solicitors has seemed to be, whatever the injury has been inflicted on the other party, or parties to the litigation, he has only to show that he left the whole matter in the hands of a clerk and he will then escape the jurisdiction of the Court in relation to costs".

"Misconduct or default or negligence in the course of the proceedings is in some cases sufficient to justify an order. The primary object of the Court is not to punish the solicitor, but to protect the client who has suffered and to indemnify the party who has been injured."

"The particulars given before the inquiry directed by Singleton J. began included two matters, first, the filing of defences by his two clients which he knew to be false, and, secondly, that he prepared and advised and permitted his clients to make and file affidavits of documents which were wholly inadequate and false."

"The swearing of an untrue affidavit of documents is perhaps the most obvious example of conduct which his solicitor cannot knowingly permit. He cannot properly, still less can he consistently with his duty to the Court, prepare AND PLACE A PERJURED AFFIDAVIT UPON THE FILE".