ABSTRACT
Interestingly, the Court of Appeal made no distinction between the money which was paid by cash, cheque or bank transfer: the increased credit was new property but it was the proceeds of property held on trust for the beneficiaries. It
has been argued339 that s 5(3) should only be applicable to those clients who paid in cash or by cheque, but not to those who paid by electronic bank transfer. In that situation, s 5(3) should not apply because the appellants had not ‘received’ either property or proceeds. Accordingly, D can only be guilty of theft if the person whose bank account has been debited retains an equitable interest – in which case s 5(1) is sufficient and there is no need to rely on s 5(3). Of course, just what the particular circumstances are that might give rise to a constructive trust will depend on individual facts and involve difficult questions of civil law.
