R v Clark (Brian)
Court of Appeal
Citations:  1 Cr App R 14.
The appellant obtained a £2000 cheque in his name from a third party. This cheque was supposed to clear a debt the third party owed to a company the defendant directed. The defendant pleaded guilty to several counts of obtaining property by deception under s.15 of the Theft Act 1968 (since repealed by the Fraud Act 2006). Most of the counts identified the relevant property as the money the cheques entitled the defendant to take. However, one of the counts specified the ‘cheque’ as the property obtained.
The Criminal Cases Review Commission referred the case for review after the decision in R v Preddy  2 Cr App R 524. The appellant contended that Preddy characterised the property he obtained as a chose in action for £2000, not a physical cheque. Since a chose in action is not physical property, the appellant had not obtained property by deception. In the alternative, he argued that if the cheque was physical property, the defendant did not intend to permanently deprive the third party of it. After all, when the cheque was cashed, it would be returned to the third party’s bank.
The prosecution accepted that the convictions for obtaining the money should be quashed following Preddy. However, they defended the conviction which specified the cheque as the relevant property. They argued that the cheque was a physical thing, and therefore property capable of being obtained. If Preddy implied the opposite, those comments were obiter and should be ignored.
- How should cheques be dealt with for the purpose of property offences?
The Court of Appeal overturned the conviction. The Court of Appeal thought that the physical cheque was property. However, they accepted that it would not be appropriate to treat the House of Lords’ dicta in Preddy as obiter. In any case, if the property in question was the physical cheque, the defendant had not treated it ‘as his own to dispose of regardless of the other’s rights’ since by cashing it the cheque would be returned to the third-party’s bank.