Theft Act 1978

The Theft Act 1978 supplemented the earlier deception offences in English law contained in sections 15 and 16 of the Theft Act 1968 by reforming some aspects of those offences and adding new provisions. Sections 1 and 2 were repealed on 15th January 2007 with the implementation of the Fraud Act 2006. NB: Sections 1 and 2.- Sections 4(2)(a) and Section 5(1) Theft Act 1978 and Theft Act 1968 Sections 15, 15A, 15B and 16. In section 18(1), “15, 16 or”. Section 20(2). In section 20(3), “deception” has the same meaning as in section 15 of this Act, and”. Section 24A(3) and (4). In section 25(5), “, and “cheat” means an offence under section 15 of this Act”. were repealed under Schedule 3 of the Fraud Act 2006. [ [http://www.wikicrimeline.co.uk/index.php?title=Fraud_Act_2006 Fraud Act 2006 commentary] ]

Obtaining services by deception

Section 1 (as amended by the Theft (Amendment) Act 1996), provides::(1) A person who by any deception dishonestly obtains services from another shall be guilty of an offence.:(2) It is an obtaining of services where the other is induced to confer a benefit by doing some act, or causing or permitting some act to be done, on the understanding that the benefit has been or will be paid for.:(3) Without prejudice to the generality of subsection (2) above, it is an obtaining of services where the other is induced to make a loan, or to cause or permit a loan to be made, on the understanding that any payment (whether by way of interest or otherwise) will be or has been made in respect of the loan."

There must be a deception which, according to s5(1), has the same meaning as in section 15(4) of the Theft Act 1968, i.e.:any deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including a deception as to the present intentions of the person using the deception or any other person. This deception must be the cause of the obtaining (see the discussion on causation in deception offences). The defendant must obtain a service as defined in s1(2), i.e. the victim must confer a benefit on the defendant (or another). The 'services' must be non-gratuitous, i.e. the benefits must be provided by the victim of the deception in the expectation that they are to be paid for at commercial rates (see s1(2)). It must be conferred by the doing, causing, or permitting of some act; a failure to act which confers a benefit is not sufficient. Thus, a person who employs a lawyer or accountant without ever intending to pay, may commit an offence under s1. But a person who lies to a neighbour to secure the loan of a power drill does not commit an offence because the benefit is not obtained on the understanding that it has been or will be paid for. In "R v Halai" (1983) Crim LR 624, the defendant made false statements in an application for a mortgage and thereby obtained a survey, the opening of an account and a mortgage advance. Note that the Theft (Amendment) Act 1996 introduced s.1(3) specifically to provide that a loan amounts to a service. This dispenses with that part of the decision in Halai (which had, in any event, been overruled by "R v Graham" (1997) prior to the Act) As to the opening of an account, contrast "R v Shortland" [1995] Crim LR 893 in which the Court of Appeal held that, on the evidence presented, opening bank accounts under false names did not amount to the s1 offence, but suggested that it might have done if evidence that it had to be paid for had been presented. The "mens rea" for all offences is dishonesty.

Evasion of liability by deception

Section 2 provides::(1) Subject to subsection (2) below, where a person by any deception::(a) dishonestly secures the remission of the whole or part of any existing liability to make a payment, whether his own liability or another's; or::(b) with intent to make permanent default in whole or in part on any existing liability to make a payment, or with intent to let another do so, dishonestly induces the creditor or any person claiming payment on behalf of the creditor to wait for payment (whether or not the due date for payment is deferred) or to forgo payment; or::(c) dishonestly obtains any exemption from or abatement of liability to make a payment;:he shall be guilty of an offence.:(2) For the purposes of this section 'liability' means legally enforceable liability; and subsection (1) shall not apply in relation to a liability that has not been accepted or established to pay compensation for a wrongful act or omission.":(3) for purposes of subsection (1)(b) a person induced to take in payment a cheque or other security for money by way of conditional satisfaction of a pre-existing liability is to be treated not as being paid but as being induced to wait for payment.:(4) For purposes of subsection (1)(c) "obtains" includes obtaining for another or enabling another to obtain.

Section 2(1) is divided into three parts, all of which require both that a deception caused the obtaining, which may be for oneself or for another, and that there is a liability to pay which is legally-enforceable. All three also require proof that the creditor is deceived into releasing the defendant from the obligation to pay in some way. (Contrast the previous law represented by "DPP v Ray" which, for policy reasons, held that merely running out of a restaurant without positively deceiving someone was nevertheless an offence.

Remission of a debt

Section 2(1)(a) covers the deception which dishonestly secures the remission of the whole or part of an existing liability to make a payment. Unlike the other two subsections, this requires that the victim knows that a liability exists and knows how much he or she is remitting. It does not cover situations where the defendant tricks the victim into believing that no money is owing (ss2(1)(b) and (c) do cover this situation). If A borrows £50 from B and, when repayment is due, claims that a change of circumstances makes it impossible for him to repay some or all of the money; this deception persuades B to forgive the loan, or to accept £10 in full satisfaction (Criminal Law Revision Committee (CLRC), Thirteenth Report, para. 13). In "R v Jackson" (1983) Crim LR 618 (CA) Jackson tendered a stolen credit card to pay for petrol and other goods, and it was accepted by a trader, who then looked to the issuing credit card company for payment and not to the person tendering the card. This was held to dishonestly secure the remission of an existing liability and Jackson was convicted. For these purposes, the existing liability to make a payment may be the defendant's own liability or another's.

The provisions of s2(2) clarifiy that s2(1) does not apply where the liability has not been "accepted or established to pay compensation for a wrongful act or omission". This avoids the criminal law being a default liability for civil proceedings. Thus, if X lies about an accident to avoid a claim of negligence, no offence is committed. The claimant can commence civil proceedings once the deception is discovered (CLRC, Thirteenth Report, para 16).

Delaying payment of a debt

Like s2(1)(a), this requires an existing liability to make payment but, unlike (a), it does not require that the creditor knows that he or she is "letting the defendant off". In "R v Holt & Lee" (1981) Crim LR 499 (CA) the defendants ate a meal in a restaurant which cost £3.65. When presented with the bill, they claimed that another waitress had already taken a £5 note from the table. Unfortunately, an off-duty policeman had overheard their planning. They were both convicted of an attempt by deception to induce the creditor to forego payment with intent to make permanent default. Their appeal against conviction was dismissed. The section is also concerned with dishonestly inducing a creditor to wait for payment. In many circumstances, this means that ss2(1)(a) and (b) will overlap, but there are also situations in which they do not. Thus, creditors who remit will also forgo, A particular instance of "wait for payment" is provided by s.2(3) which was a necessary amendment because of the general principle that accepting a cheque (even a worthless cheque) as the means of payment, means that, until the creditor receives notice that the cheque has been dishonoured, he or she stops seeking payment: see R v Hammond (1982). s2(3) provides that a person induced to take a cheque or other security for money by way of conditional satisfaction of an existing liability is to be treated not as being paid but as being induced to wait for payment. As "mens rea", the defendant must make the deception with intent to make permanent default in whole or in part on any existing liability to make a payment of his own, or with intent to let another do so.

Avoiding incurring a debt

For there to be an offence under s2(1)(c) there must be dishonesty and a deception which obtains any exemption from or abatement of liability to make a payment. Because both ss2(1)(a) and (b) require an "existing" liability to pay, they do not cover situations where the point of the deception is to prevent a liability from arising in the future. s2(1)(c) would apply when a person flags down a taxi and claims only to have £5. The driver agrees to carry the passenger to the destination for this amount. The contract is made for a reduced amount which is an "abatement" for these purposes. If the driver agreed to carry for no charge, this would be an "exemption". The CLRC gave examples where the defendant dishonestly obtained a rate rebate or a reduction in rent for the future. Another example would be waving a credit card at a ticket collector at a railway station to avoid having to pay to board the train. In roader than previous two offences as not limited to existing liabilities. In "R v Firth" (1990) CLR 326 the defendant failed to tell the NHS that patients using NHS facilities were in fact private patients thereby obtaining facilities without payment (an example of an omission or silence constituting the deception). In "R v Sibartie" (1983) CLR 470, the defendant was convicted of attempting s2(1)(c) when he deceived a ticket collector on the underground into believing that he had paid for the whole of his journey. In fact, he had only purchased tickets which covered the first few and last few stations in his journey. The court of first instance said that that was a dishonest attempt to obtain an exemption from the liability to pay the excess. On appeal, it was argued that this was an attempt to induce the creditor to forgo payment of part under s2(1)(b). The Court of Appeal held that although this illustrated the overlap between s.2(1)(b) and s.2(1)(c), it did not make liability under s.2(1)(c) wrong.

Making off without payment

Section 3 provides::(1) Subject to subsection (3) below, a person who, knowing that payment on the spot for any goods supplied or service done is required or expected from him, dishonestly makes off without having paid as required or expected and with intent to avoid payment of the amount due shall be guilty of an offence.:(2) For purposes of this section 'payment on the spot' includes payment at the time of collecting goods on which work has been done or in respect of which service has been provided.:(3) Subsection (1) above shall not apply where the supply of the goods or the doing of the service is contrary to law, or where the service done is such that payment is not legally enforceable.:(4) Any person may arrest without warrant anyone who is, or whom he, with reasonable cause, suspects to be, committing or attempting to commit an offence under this section."This section is intended to protect legitimate business concerns and applies where goods are supplied or a service is performed on the basis that payment will be made there and then. This includes a restaurant where the meal is supplied on the understanding that the bill will be paid before the diner leaves (CLRC, Thirteenth Report, para. 19) and the passenger in a taxi who runs off without paying the fare at the end of the journey, and the motorist who fills up with petrol at a garage and drives off when the attendant is distracted (CLRC, Thirteenth Report, para. 20). For these purposes, it must be proved that the defendant knew that payment on the spot was required or expected, and made off dishonestly with intent to avoid payment of the amount due. This section is intended to avoid any problems from the application of civil law principles. For example, the Sale of Goods Act determines when the ownership of goods passes. If the goods are being ascertained as part of the contract, title will pass when the goods are identified or measured. In a restaurant, this will probably occur when the food is cooked and plated. In a garage, it will occur when the fuel is measured as it passes through the pump into the car's tank. To be a theft, the goods must belong to another when the appropriation occurs. Similarly, if ownership passed before an intention to avoid payment was formed, running off might be a breach of civil law but it was not a crime. This became too common an event and so the law had to be clarified to enable convictions to be obtained despite civil law niceties.

References

*Allen, Michael. "Textbook on Criminal Law". Oxford University Press: Oxford. (2005) ISBN 0-19-927918-7.
*Criminal Law Revision Committee. 8th Report. Theft and Related Offences. Cmnd. 2977
*Griew, Edward. "Theft Acts 1968 & 1978", Sweet & Maxwell: London.. ISBN 0-421-19960-1
*Ormerod, David. "Smith and Hogan Criminal Law", LexisNexis: London. (2005) ISBN 0-406-97730-5
*Smith, J. C. "Law of Theft", LexisNexis: London. (1997) ISBN 0-406-89545-7.