Gimbert v The Queen, Court of Appeal - Criminal Division, October 10, 2018, [2018] EWCA Crim 2190

Resolution Date:October 10, 2018
Issuing Organization:Criminal Division
Actores:Gimbert v The Queen

Neutral Citation Number: [2018] EWCA Crim 2190

Case No: 201704052/B4

& 201704328/B4




Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 10/10/2018






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Caroline Harris appeared for the Appellant

Richard Gibbs appeared for the Applicant

Malcolm Morse appeared for the Respondent

Hearing date: 21 September 2018

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Judgment ApprovedLord Justice Davis:


  1. This is an unusual case. It among other things involves a consideration of the interpretation of s. 4 (2) of the Theft Act 1968 and the circumstances whereby theft of land may properly be charged.

  2. The difficulties that such a charge can give rise to - as illustrated by the fact that the present case has, with leave of the single judge, generated an appeal to this court - would tend to reinforce the view that, where land is involved, prosecutors would be well advised to seek to frame charges other than under the 1968 Act: for example, under the Fraud Act 2006. We will come on to explain the circumstances in which this particular count in question was framed as it was under the 1968 Act.

  3. The outcome of this appeal has, in one sense, and subject to one point mentioned below, been academic. This is because the appellant (John Gimbert) was convicted, after a trial on some counts and a retrial on another, of various offences of theft and of conspiracy to defraud. His total sentence was 3 years and 6 months imprisonment. The sentence on the count which has generated this appeal was a concurrent sentence of 2 years imprisonment. There is no challenge to the conviction on the other counts or as to the overall sentence. Consequently, the appeal, if successful, could have no impact on the total sentence or on the fact that the appellant will in any event have lost his previous good character. Nevertheless, if the appellant's arguments that the conviction cannot stand in law are correct then he is entitled to have that conviction quashed.

  4. Also before this court has been a renewed application for leave to appeal against conviction, leave having been refused by the single judge, on the part of a co-accused, David Gimbert. The sole ground raised is that the Recorder at the retrial should have acceded to a submission of no case to answer made at the close of the prosecution case on the count of conspiracy to defraud which he faced.

  5. Before us the appellant, John Gimbert (whom for purposes of clarity and without intending any disrespect we will style ``John''), was represented by Ms Harris, who did not appear below. The applicant, David Gimbert (whom we will style ``David''), was represented by Mr Gibbs. The Crown was represented by Mr Morse. Both Mr Morse and Mr Gibbs had appeared below.

  6. At the end of the hearing the court announced its conclusion that the appeal would be allowed and the renewed application refused. We said that we would give our reasons in due course in writing. These are those reasons.

    Background facts

  7. The facts, in summary, are these.

  8. John has three children: David, William and Jayne (Page). John himself was the cousin of a woman called Janette Trim (``Janette'').

  9. Janette had always required assistance with her daily living. While her parents were alive she lived with them and they cared for her. Her mother died in 1996 and her father then died in 2002. Before his death the father had executed a power of attorney in favour of John. By his will, Janette's father had bequeathed his whole estate (aside from some minor items) to Janette. The estate was valued at around £181,000. The estate included the family home, 80 Malcolm Close in Stoke on Trent. Evidence adduced by the Crown was to the effect that the property was worth in the region of £85,000. John was the sole executor under the will.

  10. Shortly before her father's death Janette had been placed in a care home. Thereafter she resided in a residential care home. Expert evidence given at trial was to the effect that she had (and always has had) a pronounced learning disability. She had an assessed IQ of 57.

  11. On 20 May 2003 an Enduring Power of Attorney was executed by Janette in favour of John, conferring general authority on him to act in relation to all her property and affairs. Solicitors had been instructed for this purpose; and the signatures both of Janette and of John were witnessed by a solicitor, Mr Raymond Basnett. Janette at this time also made a will in favour of John.

  12. One typed section of the Enduring Power of Attorney relating to the attorney stated as follows:

    ``I understand that I have a duty to apply to the Court for registration of this form under the Enduring Powers of Attorney Act 1985 when the donor is becoming or has become mentally incapable.

    I also understand my limited power to use the donor's property to benefit persons other than the donor.''

  13. The Enduring Power of Attorney in the event was at no stage registered under the then applicable provisions (the 1985 Act, we add, has subsequently been repealed and replaced). It was the prosecution case that at all relevant times Janette lacked the capacity to understand what was going on or freely to consent.

  14. In September 2003 there was a...

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