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Theft breach of trust

Date Updated: January 2012

Title: Theft

Offence: Theft - breach of trust

Legislation: S1 Theft Act 1968

Commencement Date:

Mode of Trial: Either way

Statutory Limitations & Maximum Penalty: 7 years

Aggravating & Mitigating Factors

  • Sentencing Guidelines Council
  • Long course of offending
  • Suspicion deliberately thrown on others
  • Offender motivated by intention to cause harm or revenge
  • the quality and degree of trust reposed in the offender;
  • the period over which the thefts occurred;
  • the use to which the offender put the stolen money;
  • the effect on the victim;
  • the impact on the public and public confidence;
  • the effect on the offender's fellow employees or partners;
  • the effect on the offender.
  • the offender's history;

Relevant Sentencing Council Guidelines

Sentencing Guidelines Council - Definitve Guidelines Theft and Burglary in a building other than a dwelling.Offences sentenced after 5/1/09.

First time offender aged 18 or over who pleaded not guilty.

Type Less than £2000
Starting Point community Order (Medium)
Range Fine - 26 Weeks

Type £2000 - £20,000 or less than £2,000 High Degree Trust
Starting Point 18 weeks
Range Community Order - 12 months

Type £20,000 - £125,000 or less than £20,000 High Degree Trust
Starting Point 2 years
Range 12 months - 3 years

Type £125,000 plus or £20,000 plus high Degree Trust
Starting Point 3 years
Range 2 years - 6 years

Relevant sentencing guidelines

Whilst starting point is guidelines, observations in R-v-Barrick 81 Cr App R 78 CA (professionals should be expected to be punished as severely as others, there being no proper basis to distinguish on the basis of a defendants occupation) and R v Clark (below) still of assistance (Archbold 21-4d).

Relevant Sentencing Case Law (Pre - SGC Cases)

R v CLARK [1998] 2 Cr.App.R.(S.)142 B6-12003 which updated the guidance issued in R v BARRICK [1985] 7 Cr.App.R.(S.)142 B6 - immediate imprisonment is inevitable in breach of trust cases unless there are exceptional circumstances or the amount of money involved is very small.

Range
  • Less than £17,500  up to 21 months
  • £17,500 to £100,000   2-3 years
  • £100,000 to £250,000  3-4 years
  • £250,000 to £1 million  5-9 years (by use of consecutive sentences where more than one offence is proved)
  • £1 million or more  10 years + (as above)

R v ROACH [2002] 1 CR.AP.R(S) 259
The defendant pleaded guilty to three counts of obtaining a money transfer by deception. The defendant worked for a firm supplying carers to elderly and infirm people. Over a period of about two years cashed cheques to the value of £2,875 from an 80 year old client. 18m.

Breach of Trust up to £17K

R v ROSS-GOULDING [1998] 1 Cr.App.R.(S.) 348
Pleaded guilty to theft and forgery. The defendant was a care assistant employed by an agency to look after a person suffering from multiple sclerosis. The appellant withdrew £8,000 from this person's building society account by forging her signature and used the money to repay a loan. 15 months.

R v MANGHAM [1998] 2 Cr.App.R.(S.) 344
Pleaded guilty to using a false instrument with intent, and obtaining a money transfer by deception. The defendant was employed as a carer by a nursing agency. The defendant had charge of a lady aged 95. She obtained possession of her pass book and forged her signature on two occasions so as to obtain £5,000. 18 months.

R v DONALDSON [2002] Cr.App.R.(S.) 35 (at 140); [2001] EWCA Crim. 2854
Pleaded guilty to one count of theft, one count of attempting to obtain a pecuniary advantage by deception and two counts of obtaining property by deception. She asked for six similar offences to be taken into consideration. The defendant was employed as a carer and stole £3300 in cash and a cheque book from a 90 year old lady and withdrew a further £3300 from the account of a 88 year old lady. Previous good character. 18 months.

R v FEAKES [1998] 2 Cr.App.R.(S.) 295
Pleaded guilty to five counts of theft. The appellant was the treasurer of a church restoration fund. Over a period of three and a half years he stole a total of £9,594 by forging the signature of the chairman of the fund. The appellant repaid about £3,000 after the offences were discovered. Good character and full co-operation. 9 months

R v ROBERTS [1999] 1 Cr.App.R.(S.) 381
Convicted of theft. The appellant, a serving police officer, and other officers searched premises.  Items were lodged in a police property store and he stole a watch. 2 months.

R v GRIFFITHS [2000] 1 Cr.App.R.(S.) 240
Pleaded guilty to one offence of theft, one of false accounting, one of making a false instrument, and one of using a false instrument and committed for sentence. The appellant was treasurer and secretary of a voluntary football club and was responsible for dealing with the club's bank account and financial affairs. The appellant admitted that he had stolen a sum of between £7,300 and £7,500 from the club's accounts over a period of seven years. He used various means in an attempt to conceal the offences. 12 months.

R v JAMES [2000] 1 Cr.App.R.(S.) 285
Pleaded guilty to two offences of stealing from the post office. The appellant was employed as a counter clerk by the post office. She stole a total of £5,318 from her till on two occasions, altering records of her stock to conceal the thefts. The appellant, a single parent, had got into debt and was threatened by bailiffs. 9 months.

Breach of Trust £17K -£85K

R v STARSMEARE [2003] Cr.App.R.(S.)
Pleaded guilty to one count of theft and was convicted of two counts of obtaining money by deception. The defendant cared for an elderly neighbour and took £44K from her account and a watch. 3 years.

R v HARDWICK [2007] 1 Cr.App.R.(S.)
Pleaded guilty to 10 offences of theft. The appellant was a social worker employed by a county council and used a power of attorney to withdraw £8K cash from the account of a woman with dementia and sold her house for £47K. 3 years 3 months.

R v HUSBANDS [1998] 2 Cr.App.R.(S.) 428
Pleaded guilty to one offence of theft and two of obtaining by deception. The defendant, who worked in a bank, applied for a cash card on a company account and withdrew £22K. 18 months.

R v WHITEHOUSE AND MORRISON [1999] 2 Cr.App.R.(S.) 259
Pleaded guilty to theft and committed for sentence. The first appellant was employed by a haulage company. Together with the second appellant and another man he took 35 boxes of clothing valued at £17,700 from lorries which had been left at the company's depot overnight. Previous convictions. 2 years and 18 months.

Breach of Trust £85K -£170K

R v OPREY AND PINCHBECK [2002] 1 Cr.App.R.(S.) 75 (at 317) [2001] EWCA Crim. 1630
Pleaded guilty to conspiracy to defraud and various other offences. The second defendant was the general manager of a hotel and the first defendant was a financial controller. The second defendant organised conference events at a conference centre near the hotel, but used the facilities of the hotel to pay for various expenses and cover losses. The first defendant pleaded guilty on the basis that she concealed the second defendants activities. Loss of £70,000 over a period of five years. 9 months and 3 years.

Breach of Trust in excess £170K

R v RENTON (1995) 16 Cr.App.R.(S.) 575
Pleaded guilty to four offences of obtaining by deception and 14 of theft. The appellant was the managing director of an investment company which ran into financial difficulties. He encouraged former investors and personal friends to invest in a fictitious share issue, and used the money to support the company. A total of £645,000 was lost to the investors. Offences strike at the stability of the financial community. Target personal friends rather than financial institutions. Disqualified from being a director 10 years. 4 years.

R v D'SOUZA [1996] 2 Cr.App.R.(S.) 130
Pleaded guilty to theft. The appellant was employed as a bookkeeper by a hospital medical school for a period of 26 years. In 1994 he admitted that he had stolen a total of £652,000 over a period of about ten years to finance a gambling habit and kept records of the transactions. 4 years.

R v SHAW [1996] 2 Cr.App.R.(S.) 278
Pleaded guilty to four counts of theft, and asked for 15 other offences, including several of obtaining by deception, to be taken into consideration (max 10 years). The appellant was a solicitor who stole money from clients over a period of about seven years. About £3 million was stolen, of which the appellant used about £1 million for his own purposes, and the balance to conceal the offences he had committed. The appellant had admitted the offences to the police on his own initiative. 6 years.

R v NEARY [1999] 1 Cr.App.R.(S.) 431
Pleaded guilty to 12 counts of theft. The defendant was a solicitor who collected rent on behalf of a company in respect of property which the company sub-let, but failed to pay it over to the landlords, with the result that the lease was forfeited and the company suffered losses of between £800,000 and £1 million. About £135,000 of the money collected was used by the defendant to meet personal liabilities. £153,000 was stolen from another company for whose affairs the defendant was responsible, and used to repay loans. 5 years.

R v COOK [2003] 3 Cr.App.R.(S.) 49
Pleaded guilty to eight counts of theft. The defendant had been employed as an assistant bursar at a private school. Over a period of just over five years, he stole approximately £225,000 from the school in various ways. The thefts were concealed by making false entries in the school's records. The money was used to fund the defendant's gambling. Despite Kefford 3 years.

R v TORKONIAK [2005] 1 Cr.App.R.(S.) 27
Convicted of 15 counts of theft, two counts of obtaining a money transfer by deception, one count of false accounting, two counts of obtaining property by deception, one count of forgery, and one count of perjury. The defendant was in practice as a solicitor. He negotiated a settlement of £100,000 for a client who suffered personal injuries. The defendant told the client that the amount awarded was £18,000 and retained at least £75,000 for himself. In the case of another client, the defendant retained £3,000 out of an award of £18,000, and failed to repay costs to the LSC of £10,000 which the applicant had recovered from insurance. Various other amounts were stolen from clients in a variety of circumstances. Substantial amounts were obtained from the LSC. The applicant received payments over a period of nine years in respect of a client's pension after the client had died. The total amount obtained was in excess of £300,000. Considerable damage to the public confidence in the legal system 8 years.

R v PRICE [2007] 1 Cr.App.R.(S.)
Pleaded guilty to 24 counts of theft, and 19 counts of obtaining a money transfer by deception. He asked for 263 further offences to be taken into consideration. The defendant ran a financial services business, acting as an agent on behalf of various building societies and set up a fictitious investment scheme. The scheme ran for 3 years. Total loss to elderly clients and building society £10.4 million. 10 years.
Conspiracy to defraud

R V LEE AND WILLIAMS [2009] 1 Cr Ap R(S) 383
Two brokers were approached by others and use there position as company directors and their close relationship with their bank to assist others to pass false cheques to the value of £20 million through their accounts. £15 million was cleared of which £14 million was recovered. The defendants received £210K. Convicted of conspiracy to defraud 5y 9m upheld. There was an element of breach of trust owing to their close relationship with the bank. The important point was the size of the conspiracy. The defendants fell to be punished not just by reference to their own gain but by reference to the scale of the conspiracy and the part they played in it. The fact that the victim was a bank did not help them in the light of the scale of the fraud. 

Ancillary Orders:

  • Restitution
  • Compensation
  • Deprivation
  • POCA

Consider Also:

  • Disqualification from being a director

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