Welham v Director of Public Prosecutions

March 24. Lorp Rapcuirre. My Lords, I have had the oppor-
tunity of reading in advance the opinion that will be delivered
by my noble and learned friend, Lord Denning. I agree with
what he says and I share his view that this appeal must be dis-
missed. I propose, therefore, to confine what I say to expressing

90 99 Cr.App.R. 160. 94 (1904) 18 H.D.C. 11 (S.A.).
91 92 Cox C.C. 618. 95 (1885) I.L.R. 7 All. 408.
9213 Cr.App.R. 155. 96 (1884) I.L.R. 10 Cal. 584.

93 92 Cr.App.R. 186.

12

1960

WELHAM
v.
DIREcToR
or PusLia
Prosgcu-
TIONS.

1

122

J8i4 By. (05;)
1960

WELHAM
v.
DIRECTOR
oF PUBLIC
PROSECU-
TIONS.

Lord Radcliffe

HOUSE OF LORDS [1961 |

my opinion upon the central question of law involved, the question
which has been the cause of the case reaching this House.

What is the meaning of the words '' intent to defraud '' which
occur in section 1 and, more particularly, in section 4 (1) of the
Forgery Act, 1913? In my opinion an answer cannot be supplied
to that question which does not regard both the context of the
Act in which they appear and the previous history of legal
decisions as to the meaning of the word " defraud '' when used
as an element of the crime of forgery. There are, accordingly,
two preliminary considerations which commend themselves as
being material to this approach.

The first is that the Act itself recognises that there may be at
least a significant difference between an intent to defraud and an
intent to deceive. For whereas most of the offences for which
punishment is prescribed are punishable whether done with intent
to deceive or intent to defraud, some acts of forgery can be a
crime only if done with intent to defraud (see section 2 (1) and (2)
and section 4 (1)). Up till the date of this Act forgery statutes,
of which there had been innumerable instances over the preceding
500 years, while often (though not by any means consistently)
defining the offence explicitly in terms of '' intent to defraud,''
had hardly ever used the phrase "' intent to deceive '' in connec-
tion with it. The first and only occasion on which this occurred,
so far as the researches of the learned Solicitor-General have
taken us, was in the Act of 1803 (43 Geo. 8, ce. 139), which by
section 1 dealt with the crime of forging bills of exchange,
promissory notes, etc. '' with intent to deceive or defraud '' His
Majesty or other persons. The combined phrase does not seem
to have been employed again in a forgery Act, since neither of the
consolidating statutes of 1880 (11 Geo. 4 & 1 Will. 4, c. 66) and
1861 (24 & 25 Vict. c. 98) reproduced the substance of section 1
of the Act of 1803 with anything more than the single phrase
"intent to defraud.'' On the other hand, '' intent to deceive or
'"' defraud '' did occur in other nineteenth century Acts relating
to offences akin to forgery, e.g., in section 84 of the Larceny Act,
1861, and section 166 of the Companies Act, 1862. No instance,
however, has been discovered of a statute defining forgery in
terms of "' intent to deceive '' except as an alternative to the
phrase '' intent to defraud.''

It seems fair to say, then, that the Act of 1913 established the
first occasion upon which in legislation about forgery the two
phrases "'intent to defraud'' and ''intent to deceive '' were
brought into any regular combination with or dissociation

29

A.C. AND PRIVY COUNCIL.

123

from each other. While this compels us, I think, to treat them H. L. (E,)

as not being synonymous with each other for the purposes of the
Act, I do not conclude, on the other hand, that it requires us for
the same purpose to give a more limited meaning to " defraud '"'
than it would otherwise have had, unless not doing so would
involve us in finding no independent meaning at all for the word
"* deceive.''

1960

WELHAM
0.
DIRECTOR
OF PUBLIC
PROSECU-
TIONS.

The second consideration which weighs with me is that by tora Raaclifte.

1913 the word '' defraud,'' when used in connection with forgery,
had been a frequent subject of judicial decision and institutional
comment. On most occasions the exposition had related to
forgery as a crime at common law: but forgery was also becoming
increasingly a statutory crime by virtue of those various Acts
which had either punished forgery without explicitly referring to
intent to defraud, or had explicitly imported that intent into the
offence proscribed. The Act of 1918, unlike its predecessors of
1830 and 1861, was not merely an Act consolidating a number of
previous enactments on the subject of forgery. Its title declares
it to be an Act '' to consolidate, simplify, and amend the Law relat-
"ing to Forgery.'' In my opinion it superseded forgery as a
crime at common law in the cases to which it applied, though
there still remained such a crime (see section 14), just as much
as it superseded the statutory offences whose constituent Acts it
amended or repealed. While it did essay a definition of the act of
forgery: "' the making of a false document in order that it may be
'""used as genuine, and . . . the counterfeiting of '' certain "' seals
'* or dies '' (see section 1 (1)), it did not introduce any definition of
'* intent to defraud '' or, for that matter, of '' intent to deceive."'
In that state of affairs I cannot doubt that the words "' intent to
'* defraud '' in the Act must be understood in the light of any
established legal interpretation that prevailed at the date of the
passing of the Act.

Now, I think that there are one or two things that can be said
with confidence about the meaning of this word '' defraud.'' It
requires a person as its object: that is, defrauding involves doing
something to someone. Although in the nature of things it is
almost invariably associated with the obtaining of an advantage
for the person who commits the fraud, it is the effect upon the
person who is the object of the fraud that ultimately determines
its meaning. This is none the less true because since the middle of
the last century the law has not required an indictment to specify
the person intended to be defrauded or to prove intent to defraud
a particular person.

124

H. L. (£.)
1960

WELHAM
0.
DIRECTOR
oF PusBLIc
PROSECU-
TIONS.

Lord Radcliffe.

HOUSE OF LORDS [1961 |

Secondly, popular speech does not give, and I do not think
ever has given, any sure guide as to the limits of what is meant by
'to defraud.'' It may mean to cheat someone. It may mean
to practise a fraud upon someone. It may mean to deprive some-
one by deceit of something which is regarded as belonging to him
or, though not belonging to him, as due to him or his right. It
passes easily into metaphor, as does so much of the English
natural speech. Murray's New English Dictionary instances such
usages as defrauding a man of his due praise or his hopes.
Rudyard Kipling in the First World War wrote of our '' angry and
'' defrauded young.'' There is nothing in any of this that suggests
that to defraud is in ordinary speech confined to the idea of
depriving a man by deceit of some economic advantage or inflict-
ing upon him some economic loss.

Has the law ever so confined it? In my opinion there is no
warrant for saying that it has. What it has looked for in con-
sidering the effect of cheating upon another person and so in
defining the criminal intent is the prejudice of that person: what
Blackstone (Commentaries, 18th ed., vol. 4, at p. 247) called
"to the prejudice of another man's right.'' East, Pleas of the
Crown (1803), vol. 2, at pp. 852, 854, makes the same point in the
chapter on Forgery: ''in all cases of forgery, properly so called,
"it is immaterial whether any person be actually injured or not,
'* provided any may be prejudiced by it."'

Of course, as I have said, in ninety-nine cases out of a hundred
the intent to deceive one person to his prejudice merely connotes
the deceiver's intention of obtaining an advantage for himself by
inflicting a corresponding loss upon the person deceived. In all
such cases the economic explanation is sufficient. But in that
special line of cases where the person deceived is a public autho-
rity or a person holding a public office, deceit may secure an
advantage for the deceiver without causing anything that can
fairly be called either a pecuniary or an economic injury to the
person deceived. If there could be no intent to defraud in the
eyes of the law without an intent to inflict a pecuniary or economic
injury, such cases as these could not have been punished as
forgeries at common law, in which an intent to defraud is an
essential element of the offence, yet I am satisfied that they were
regularly so treated.

I think that it is sufficient if I mention three authorities with-
out analysing them. First, Rex v. Harris,! in which a forged
order purporting to be a direction from a magistrate to the keeper

1 (1838) 1 Mood.C.C. 393.

A.C. AND PRIVY COUNCIL.

of a county gaol to discharge a prisoner was held by all the judges
on the case reserved to be capable of sustaining a conviction for
forgery at common law. Secondly, in Reg. v. Sharman,? a forged
certificate giving false references as to employment, put forward
in order to obtain appointment as a schoolmaster, was held to
support a similar conviction. The indictment in that case
charged ''intent to obtain the emoluments and to deceive."'
Thirdly, there is Reg. v. Moah,* in which the Court of Criminal
Appeal upheld a conviction for forgery at common law where a
forged letter of recommendation had been delivered to a chief
constable by a forger for the purpose of obtaining the situation
of a police constable.

Reg. v. Toshack* seems to me to be the most explicit
authority on the subject prior to 19138. Toshack had forged a
testimonial over the purported signature of a master of a sailing
ship in order to deceive Trinity House examiners and so obtain
his master's certificate. He was tried on an indictment containing
a number of counts, including one of unjustly obtaining a piece
of paper, value one penny (the master's certificate), but the case
as reported only dealt with the seventh and ninth counts, charging
respectively that he forged the testimonial with intent to injure,
deceive, prejudice and defraud the examiners, and that he did the
same thing for the purpose of deceiving Trinity House. He was
convicted of the offence of forgery at common law; and the con-
viction on these two counts being reserved for the opinion of the
judges (Pollock C.B., Patteson, Wightman JJ., Platt B. and
Talfourd J.), their unanimous opinion delivered by Alderson B.
was that the offence had been committed.

In my opinion it is clear that in connection with this offence
the intent to defraud existed when the false document was brought
into existence for no other purpose than that of deceiving a person
responsible for a public duty into doing something that he would
not have done but for the deceit, or not doing something that but
for it he would have done. Correspondingly, to put such a docu-
ment forward with knowledge of its falsity and with a similar
intent was to commit the crime of uttering it. That seems to
me to be the essential point of the present appeal.

Inevitably, the argument in this House concentrated much
attention upon what was said by Buckley J. in the course of his
judgment in In re London and Globe Finance Corporation Ltd.,*

2 (1854) 1 Dears.C.C. 285. 45 (1549) eee CoxauG.C.4 «38;) 1
3 (1858) 7 Cox C.C. 503. Den.C.C. 492.
5 [1908] 1 Ch. 728, 782.

125

HL. (ay
1960

WELHAM
0.
DIRECTOR
oF PUBLIC
PROSECU-
TIONS.

Lord Radcliffe.

126

Jal, IG (045)
1960

WELHAM
0.
DIRECTOR
oF PUBLIC
PROSECU-
TIONS.

Lord Radcliffe.

HOUSE OF LORDS [1961 |

when he took occasion to point out the distinction as he saw it
between an intention to deceive and an intention to defraud. The
passage was criticised by the appellant's counsel as being either
incomplete or inaccurate as an exhaustive statement of the law
on the point: on the other hand, it was put forward on behalf of
the Crown as being an authoritative exposition of the meaning
of '' intent to deceive '' and '' intent to defraud '' in the crime of
forgery, which must be taken as adopted and read into those
phrases when they occur in the Act of 1913. I think that the
criticigm is misconceived and I think, on the other hand, that
the argument for the Crown goes too far: but before I say more
it is convenient to set out the familiar passage in full. '' To
'* deceive,' he said, '' is, I apprehend, to induce a man to believe
'that a thing is true which is false, and which the person prac-
'* tising the deceit knows or believes to be false. To defraud is to
'deprive by deceit: it is by deceit to induce a man to act to his
''injury. More tersely it may be put, that to deceive is by false-
'" hood to induce a state of mind; to defraud is by deceit to induce
'""a course of action."'

There is no doubt that what was said was obiter. What the
learned judge was deciding in the case was whether to sanction a
prosecution of Mr. Whittaker Wright under the Larceny Act,
1861, ss. 83 and 84, and the Companies Act, 1862, s. 166, at
the expense of the company's funds. It was not necessary to
that decision to offer a definition of either one or both of the
"intents ''' that would be involved or to express himself in
the terms of a judge directing a jury. There is no reason to
suppose that he intended to do more than give a general indication
of the nature of the offences that were in question and of the
distinction between them. I cannot accept that a judicial utter-
ance of this kind could ever qualify as an authoritative exposition
of words employed in a subsequent statute within the doctrine
laid down by this House in Barras v. Aberdeen Steam Trawling
and Fishing Co.,* where the meaning of the single word '' wreck "'
was in question.

On the other hand, I do not think that what he said is any
the less valuable because it does not contain an exhaustive account
of the legal significance of deceit and fraud. Certainly, so far as
civil liability is concerned, deceit can involve a reckless indiffer-
ence to truth or falsity as well as the deliberate making of false
statements; and in all cases it may involve the inducing of a man

6 [1988] A.C. 402; 49 T.L.R. 891.

A.C. AND PRIVY COUNCIL.

to believe a thing to be false which is true as well as to believe to
be true what is false. But the learned judge was speaking of the
nature of criminal intent in the limited field of activities such as
wilful destruction or falsification of books and publication of false
statements or accounts, and, apart from that, there would be no
difficulty in enlarging upon his text if it were necessary to do so in
the context of any particular case. Again, it is said and, I think,
justly, that to defraud must involve something more than the
mere inducing of a course of action by deceit. But these words,
which are found in the last sentence of the whole passage, must
be understood in the light of what had gone before. They do not
qualify the description of '' defraud '' as '' by deceit to induce a
"man to act to his injury '': what they do is to point the contrast
between deceiving, the essence of which is to bring about a state
of mind, and defrauding, the essence of which is to bring about a
course of action, whether doing something or refraining from
something.

It is this last point which constitutes the most important
element in the whole passage. It is obvious that it was at once
appreciated that it expressed briefly and with felicity the signifi-
cant distinction between the two kinds of intent when they were
referred to together or apart in statutes dealing with criminal
offences. The 1905 (23rd) edition of Archbold's Criminal Pleading
and Practice incorporated Buckley J.'s words in full, and they
have regularly appeared in subsequent editions. By 1913 they
had been cited with approval in a criminal appeal as illustrating
or defining '"'intent to defraud'' (see Rex v. Bennett and
Newton'). They were treated as containing an authoritative
distinction between ''defraud'' and "'deceive'' in Rex v.
Bassey,*® and by 1953 they had become so much the established
text as to be referred to by the Lord Chief Justice, Lord Goddard,
as the '' locus classicus, which has been cited with approval over
'and over again'' (Reg. v. Wines ®). I think that it would be
perverse not to recognise that ever since they were reported they
have been accepted and used in the criminal courts as providing
a satisfactory account of the essentials of '' defrauding '' on the
one hand and "' deceiving '' on the other. I imagine that a clear
phrasing of the distinction was the more welcome because in the
past judges dealing with forgery as a crime at common law had
not always thought it necessary to distinguish between an intent

7 (1913) 9 Cr.App.R. 146. OSA WelR. 64; 37
8 (1931) 47 T.L.R. 222; 22 Cr.App.R. 197.
Cr.App.R. 160.

127

H. L. (E.)
1960

WELHAM
v.
DIRECTOR
oF Pusric
PROSEcU-
TIONS.

Lord Radcliffe.

128

BL, (Et)
1960

WELHAM
v.
DIRECTOR
OF PUBLIC
PROSECU-
TIONS.

Lord Radcliffe.

HOUSE OF LORDS [1961]

to deceive and an intent to defraud, and had sometimes spoken
of the latter under the title of the former. Thus East, Pleas of
the Crown, at p. 853, quotes Buller J. and Eyre B. as each having
described forgery as ''the making a false instrument with
''intent to deceive '' in different trials, and adds the comment:
''In the word deceive must doubtless be intended to be included
''an intent to defraud: and so it was defined... "'

It was objected that, if defrauding was treated as meaning
something so wide as any deceiving of another to his injury, his
detriment or his prejudice, it provided a dangerously wide defini-
tion of acrime. It was said, for example, that by such a definition
the writing of a faked letter to another giving him a fictitious
appointment would constitute the crime of forgery. I do not
know that I should regard this as so startling a result as to lead
me to reconsider what seems to be the long-accepted definition
of defrauding: after all, the crime in question only exists if there
is the making of a false document in order that it may be used as
genuine, which is itself dishonest and a cheat. Words, not being
capable of infinite division for purposes of precise measurement,
can only convey ideas that are to some extent general, and I think
it may be that the imposition suggested does technically constitute
the crime of forgery, unless the rule that lex non curat de minimis
puts it out of court, or a jury concludes that there was no real
intent to prejudice or injure. I suppose that, in any event, these
theoretical arguments have to be tried by a certain standard of
common sense, and I cannot say that in practice I should expect
to see a crop of criminal prosecutions based on tricks or deceptions
of this kind.

There is, I think, more weight in the criticism that if, in inter-
preting the Act of 1918, '' intent to defraud '' is given as wide an
ambit as to include all deceptions to another's prejudice there is
virtually no ambit left to be covered by the other statutory intent,
"intent to deceive,'' since it is difficult to imagine an instance of
a man forging a document in order that it should be used as
genuine without having at the same time an intention of affecting
another's conduct to his prejudice. It is difficult, but it is not
impossible. There can be cases, I think, in which there is an
intent to deceive and no more. Reg. v. Hodgson» may illustrate
the kind of thing that can occur. There a diploma of the College
of Surgeons had been altered by substituting Hodgson's for the
genuine name: on the other hand, Hodgson had made no use of

10 (1856) Dears. & B. 3.

A.C. AND PRIVY COUNCIL.

_ the document, so altered, except to hang it on the wall of his
room and show it to two friends who inquired as to his qualifica-
tions. It was held by the court that this did not constitute
forging or uttering at common law, because there was no criminal
intent in what he did. It is not clear that the court had in mind
any precise distinction between defrauding and deceiving and, as
I have said, the distinction was not always made with regard to
the crime at common law. But if a question arose under the Act
of 1913 upon a similar alteration of some document falling within,
say, section 3 or section 4 (2), I think that it would be hard to say
that there had not been an "'intent to deceive'' within the
meaning of the Act.

I am therefore of opinion that the judgment of the Court of
Criminal Appeal, the subject of the present appeal, was clearly
right. The view there taken is in accordance with what was said
by my noble and learned friend, Lord Tucker, in Board of Trade
v. Owen," and the fuller argument in this case has not led me to
think that it needs any qualification.

Lorp Tucker. My Lords, I agree that this appeal should be
dismissed for the reasons which have been stated by my noble and
learned friend on the Woolsack. I have also had the advantage of
reading in print the opinion which is to be delivered by my noble
and learned friend, Lord Denning, and I desire to express my
agreement therewith.

Lorp KeitH or Avonnotm. My Lords, I agree.

Lorp Dennine stated the facts and the direction of the Com-
mon Serjeant on the appellant's two defences (as stated above),
and continued: My Lords, such being the direction of the Common
Serjeant, these complaints were made of it:

(1) That the Common Serjeant failed to give the jury a clear
direction as to the distinction between an intent to defraud and
an intent to deceive.

(2) That the Common Serjeant incorrectly told the jury that on
Welham's own case he had an intention to defraud.

(3) That there was no evidence that Welham had an intention
to defraud.

(4) That in any case it should have been left to the jury to say
whether Welham had an intention to defraud.

11 [1957] A.C. 602, 622; [1957] 2 W.L.R. 351; [1957] 1 All E.R. 411:
41 Cr.App.R. 11.

129

H, L. (8)
1960

WELHAM
v.
DIRECTOR
oF PUBLIC
PROSsECU-
TIONS.

Lord Radcliffe

180

Hy. (9
1960

WELHAM
v.
DIRECTOR
oF PUBLIC
PROSsECU-
TIONS.

Lord Denning.

HOUSE OF LORDS [1961 |

My Lords, I think that all these complaints depend on
whether, on Welham's own evidence in the witness-box, he had
an intent to defraud: for if he had, then the Common Serjeant
was entitled to direct the jury as he did. There was no need for
him to embark on a discussion of the difference between an intent
to defraud and an intent to deceive, if the evidence did not give
rise to it. And there was no need for him to leave it to them as
an open question when Welham's own evidence permitted only of
one answer. He said to them, in effect, what many judges have
said before: '' Why, even if you accept his own evidence on this
'' point, you may well think he had an intent to defraud."'

The crucial question is, therefore, what is the meaning of the
words '' intent to defraud '' in the Forgery Act, 19183, which were
contained in the indictment. To determine this question I must
set out the material sections of the Act:

"*1.—(1) For the purposes of this Act, forgery is the making
'* of a false document in order that it may be used as genuine. .
'"and forgery with intent to defraud or deceive, as the case may
'"be, is punishable as in this Act provided. ...

'"4.—(1) Forgery of any document, which is not made felony
'"under this or any other statute for the time being in force, if
"" committed with intent to defraud, shall be a misdemeanour.. :

'* (2) Forgery of any public document which is not made felony
""under this or any other statute for the time being in force, if
"committed with intent to defraud or deceive, shall be a mis-
""demeanour.. .

"*6.—(1) Every person who utters any forged document...
shall be guilty of an offence of the like degree . . . and on
'""eonviction thereof shall be liable to the same punishment as if
""he himself had forged the document...

' (2) A person utters a forged document. . . who, knowing the
'same to be forged, and with either of the intents necessary to
"constitute the offence of forging the said document . . . uses,
"' offers, publishes, delivers, disposes of, . . . or puts off the said
'"" forged document."'

My Lords, the declared object of the Forgery Act, 1913, is '' to
"consolidate, simplify, and amend the Law relating to Forgery and
"kindred Offences '': and if its language were clear and unam-
biguous, it would not be right to embark upon a close considera-
tion of previous authorities in order to ascertain its meaning: see
Bank of England v. Vagliano Brothers * by Lord Herschell. But

"e

'

12) [1891] A.C. 107, 144, 146; 7 TLR. 888,

A.C. AND PRIVY COUNCIL.

the more I consider the phrase '' with intent to defraud "' in this
statute, the more doubtful do I find its import. It appears to be
used in contrast to the phrase '' with intent to deceive,'' but
whilst I can see there may on occasion be a distinction between
these two intents, I find it extremely difficult to say where the
one intent ends and the other begins. Much valuable guidance is
to be obtained from the dictum of Buckley J. in the Whittaker
Wright case, In re London and Globe Finance Corporation, !*
but this has been criticised by modern scholars. It has even
been hinted that it conceals within it the fallacy of the
illegitimate antistrophe, which sounds, I must say, extremely
serious. These scholars seem to think they have found the
solution. '' To defraud,'' they say, involves the idea of economic
loss. I cannot agree with them on this. If a drug addict forges
a doctor's prescription so as to enable him to get drugs from a
chemist, he has, I should have thought, an intent to defraud,
even though he intends to pay the chemist the full price and no
one is @ penny the worse off.

Seeing, therefore, that the words of the statute are of doubtful
import, it is, I think, legitimate to turn for guidance to the
previous state of the law before the Act. And here I would say at
once that the phrase '' with intent to defraud'' has been the
standard usage of lawyers in defining forgery for over 160 years.
In 1796 all the judges of England laid down the definition of
forgery as '' the false making of a note or other instrument with
'intent to defraud ''' (see Rex v. Parkes and Brown **); and ever
since that time it has been held that the very essence of forgery is
an intent to defraud, and it must be laid in the indictment (see
East, Pleas of the Crown (1803), vol. 2, p. 988; Chitty, Criminal
Law (1826), vol. 3, pp. 1039, 1042). I cannot help thinking that
when Parliament in section 4 (1) of the Act of 1913 used a phrase
so hallowed by usage, it used it in the sense in which it had been
used by generations of lawyers. It was never by them confined
to the causing of economic loss. Let me prove this by taking
some examples: Take the case where a man forges a reference
as to character, intending to get employment by means of it. It is
clear forgery: see Reg. v. Sharman; Reg. v. Moah.'® But there
may well be no economic loss intended. The man may intend, if
he gets the job, to render full service in return for his wages.
Or the post which he seeks may be unpaid, such as a justice of
the peace. But he has the intent to defraud all the same.

13 [1903] 1 Ch. 728, 732. 15 (1854) 1 Dears.C.C. 285.
14 (1797) 2 Leach 775, 785. 16 (1858) 7 Cox C.C. 503.

131

H. L. (8)
1960

WELHAM
v0

DIRECTOR

oF PUBLIC

PROSECU-
TIONS.

Lord Denning.

132

H. L. (E.)
1960

WELHAM
v.
DIRECTOR
OF PusLic
PRosEcuU-
TIONS.

Lord Denning.

HOUSE OF LORDS [1961]

Take next the case where a servant steals his master's money
and afterwards forges a receipt or other document so as to cover
up his defalcations. This, too, is forgery: see Rex v. Martin."
He does not intend to deprive his master of anything: for he has
already done that. He may not even do it so as to keep his job,
because he may be under notice. What he really intends to do is
to cover up his tracks so that he should not be found out. But
he has the intent to defraud none the less.

Then there are the cases concerned with the release of
prisoners. If a man forges an order or letter to the sheriff or to
the governor of a prison, intending thereby to secure the release of
a prisoner, he is guilty of forgery at common law: see Fawcett's
case 18 and Rex v. Harris.1® There is no idea of economic loss

there. He has no intent to deprive the gaoler of any money or

valuable thing. But at common law he is held to have an intent
to defraud. Mr. Gardiner rather suggested that the reason for
those decisions was that the documents were documents of a
public nature. But I do not so read them. Even if they were
public documents it was still essential that there should be an
intent to defraud. Ever since Ward's case 7° in 1726 public and
private documents were at common law on the same footing in
this respect: see Hast's Pleas of the Crown, pp. 859-861. The
forgery of any of them was a misdemeanour if done with intent to
defraud, but not otherwise: see Reg. v. Hodgson *! by Jervis C.J.

There remains the case of Reg. v. Toshack,?? which is to my
mind decisive. Toshack, a seaman, forged a certificate of good
conduct so as to be admitted to sit for an examination for his
master's certificate. He had no intention to deprive the examiners
or Trinity House of any money or valuable thing. The piece of
paper, value one penny, was not mentioned in the counts on
which he was convicted. But he was held guilty of forgery.
Alderson B. said: '' It does amount to a very serious offence if
'persons do forge certificates of this sort and are found to utter
'"them for the purpose of deceiving the Trinity House.''

What is the common element in all these cases? It is, I
think, best expressed in the definition given by East in his Pleas
of the Crown, vol. 2, p. 852. He treats the subject, I think,
better than any writer before or since: '' To forge, (a metaphorical
"expression borrowed from the occupation of the smith), means,

17 (1836) 1 Mood.C.C. 488. 20 2 Tid.Raym. 1461; 3 Ld.Raym.
18 (1798) 2 Hast P.C. 862. 858; 2 Stra. 747.
19 1 Mood.C.C. 393. 21 Dears. & B. 8, 8.

22 4 Cox C.C. 38, 41.

A.C. AND PRIVY COUNCIL. 133

'properly speaking, no more than to make or form: but in our H. L. (£,)
"law it is always taken in an evil sense; and therefore Forgery 1960
"at common law denotes a false making (which includes every
"alteration of or addition to a true instrument), a making malo Wasa
"'animo, of any written instrument for the purpose of fraud and Drrgcror

"deceit. This definition results from all the authorities ancient eave
"and modern taken together.'' TIONS.

That was written in 1803, but it has been always accepted as Lord Denning.
authoritative. It seems to me to provide the key to the cases
decided since it was written, as well as those before. The impor-
tant thing about this definition is that it is not limited to the
idea of economic loss, nor to the idea of depriving someone of
something of value. It extends generally to the purpose of fraud
and deceit. Put shortly, '' with intent to defraud '' means '' with
"intent to practise a fraud ''' on someone or other. It need not
be anyone in particular. Someone in general will suffice. If any-
one may be prejudiced in any way by the fraud, that is enough.

At this point it becomes possible to point the contrast in
the statute between an "' intent to deceive'' and an "' intent to
""defraud."' '' To deceive ''' here conveys the element of deceit,
which induces a state of mind, without the element of fraud,
which induces a course of action or inaction. Take the case of a
private document. For instance, where a man fabricates a letter
so as to puff himself up in the opinion of others. Bramwell B.
put the instance: '' If I were to produce a letter purporting to
'"be from the Duke of Wellington inviting me to dine, and say,
*** See what a respectable person I am''': Reg. v. Moah.**
There would then be an intent to deceive but it would not be
punishable at common law or under the statute, because then it
would not be done with intent to defraud. Take next the case
of a public document. For instance, a parish register. If a man
should falsify it so as to make himself appear to be descended of
noble family, for the sake of his own glorification, he would not
be guilty of an intent to defraud and would therefore not be
punishable at common law (see Reg. v. Hodgson'), but he
would have an intent to deceive and he would be punishable under
the present statute, as indeed he was under its predecessors, such
as the Forgery Act, 1861, s. 36.

So much for the principal point under discussion. Mr. Gerald
Gardiner did make a further point. He said that the intent must
be to defraud the particular person to whom the document is first

ce "ec

23 7 Cox C.C. 503, 504. 24 Dears. & B. 8, 8.
A.C. 1961. 10

134

ae 8 G2)
1960

WELHAM
0.
DiIR£EcTOR
or Pustic
PROSECU-
TIONS.

Lord Denning.

HOUSE OF LORDS [1961 |

presented or his agent, and that it was insufficient if he intended
to defraud somebody else. This is not correct. It has long been
ruled that it is no answer to a charge of forgery to say that there
was no intent to defraud any particular person, because a general
intent to defraud is sufficient to constitute the crime. So also
it is no answer to say that there was no intent to defraud the
recipient, if there was intent to defraud somebody else: see Rex
v. Faylor.*

In my judgment, section 4 (1) of the Forgery Act, 1913, only
restates the requirements of the common law of forgery. The
''intent to defraud '' there mentioned is the same intent as was
required by the common law. It is satisfactory to find that in
the cases subsequent to the Act the courts have been giving it the
same meaning as they did before (Rex v. Bassey ** is particularly
in point), and I am glad to find this confirmed by what my
noble and learned friend, Lord Tucker, said in Board of Trade v.
Owen.?"

Applying this meaning to the present case, it appears that
Welham on his own evidence had an intent to defraud, because
he uttered the hire-purchase documents for the purpose of fraud
and deceit. He intended to practise a fraud on whomsoever
might be called upon to investigate the loans made by the finance
companies to the motor dealers. Such a person might be pre-
judiced in his investigation by the fraud. That is enough to show
an intent to defraud. I think the Common Serjeant was entitled
to direct the jury as he did.

I find myself in entire agreement with the Court of Criminal
Appeal, and I would dismiss this appeal.

Lorp Morris oF Borru-y-Grest. My Lords, I agree that this
appeal should be dismissed for the reasons which have been given
by my noble and learned friends.

Appeal dismissed.