"BELONGING TO ANOTHER" (Hansard, 23 July 1968)

§ Sir Peter Rawlinson (Epsom)
I beg to move Amendment No. 23, in page 3, line 24, leave out from first 'trust' to end of line 26.
The matter with which the Amendment is concerned was raised in Committee. In this Clause we have the definition of property belonging to another and some curious words in subsection (2). It is interesting to note that subsection (1) deals with Property … belonging to any person having possession or control of it, or having in it any proprietary right or interest … Subsection (2) deals with … property subject to a trust … Subsection (3) is concerned with the situation Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property … Subsection (5) is concerned with Property of a corporation … belonging to the corporation … They are all definitions. However, in the part of the Clause with which the Amendment is concerned, we read: Where property is subject to a trust, the persons to whom it belongs shall be regarded as including any person having a right to enforce the trust … My hon. Friends pointed out in Committee that this was muddled drafting. We still take that view. Although the Solicitor-General promised to look at the subject again, he has not tabled an Amendment to put the matter right. We see no reason why this provision should not be redrafted.

§ The Solicitor-General (Sir Arthur Irvine)
I am glad to have the opportunity of dealing with this point which was raised by the hon. and learned Member for Solihull (Mr. Grieve) in Standing Committee. As I understood it, the anxiety that was felt was that the expression "defeat the trust" might have the effect of causing the offence of theft to extend to breaches of trust which were not criminal. I am satisfied after 469 careful inquiry that this anxiety is unfounded.
As the Bill stands, there has to be dishonest appropriation of property and an intention permanently to deprive before theft is constituted. Any conduct in relation to trust property, in order to amount to theft, would have to be conduct which would be theft if the property were not trust property. In the view that I take, this limits the ambit of the phrase "defeat the trust". Such difficulty as there is on the point would, in the Government's view, not be removed by resort to any other language. That is the outcome of our thinking upon this matter.

§ Sir John Foster (Northwich)
I cannot help but disagree with the Solicitor-General. The words which it is sought to omit are: and an intention to defeat the trust shall be regarded accordingly as an intention to deprive of the property any person … having a right to it.
Leaving aside the difficult English in that sentence, surely the intention to defeat the trust is part of the element of the offence. One has to see what the intention to defeat the trust means. In Committee I criticised the imagery of a battle between the alleged criminal and the trust. One can defeat the trust in many ways. The Solicitor-General says that there is a limitation in that one has got to have a dishonest intention to get hold of some property. But the words that we seek to omit state that defeating the trust shall be regarded accordingly as an intention to deprive of the property any person having that right. The wording is very cumbersome and it introduces an entirely new concept into English law, namely what is defeating the trust.
If "defeating the trust" is intended to be an element showing that there was a dishonest intention, then the words are not apt to do that at all because some minor attempt to break the trust might be regarded as an intention to deprive a person of the property even though without those words no criminal intention would have been proved. I therefore submit that these words should be omitted, for the Clause will work just as well without them.