Attorney-General’s Reference (No 1 of 1985): CACD 1986

An employee had made a secret profit by selling his own goods on his employer’s premises, thereby breaking the terms of his contract of employment.
Held: The moneys the employee received from his private customers were not received on account of his employer within the meaning of section 5(4), that the profits made by the employee were not the subject of a constructive trust, and that if they were, that constructive trust did not give the employer a proprietary right or interest in the secret profit within the ambit of section 5(1). ‘ if the contentions of the Crown are well founded and if in each case of secret profit a trust arises which falls within section 5, then a host of activities which no layman would think were stealing will be brought within the Theft Act 1968 . . There is a clear and important difference between on the one hand a person misappropriating specific property with which he has been entrusted, and on the other hand a person in a fiduciary position who uses that position to make a secret profit for which he will be held accountable. Whether the former is within section 5, we do not have to decide. As to the latter we are firmly of the view that he is not, because he is not a trustee.’

Citations:

[1986] 1 QB 491

Statutes:

Theft Act 1968 5(1) 5(4)

Jurisdiction:

England and Wales

Citing:

Cited – Kaur v Chief Constable for Hampshire CACD 1981
The court was concerned not to extend the Theft Act to include as thefts activities which many people would not consider to be such: ‘the court should not be astute to find that a theft has taken place where it would be straining the language so to . .

Cited by:

Distinguished – Holmes v Governor of Brixton Prison and Another Admn 20-Aug-2004
The applicant sought his release from imprisonment where he awaited extradition to Germany. He was suspected of an offence of deception. He said there was insufficient evidence that the offence alleged would be an offence here. The alleged offence . .
Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Crime

Updated: 06 May 2022; Ref: scu.200475