LAW04: Criminal Law (Offences against Property)
Fraud and Making off without Payment
1. Fraud by false representation.
This is defined in s. 2 Fraud Act 2006 as
"The offence of fraud by false representation is committed
if D;
a) dishonestly makes a false representation; and
b) intends, by making the representation -
i. to make a gain for himself or another, or
ii. to cause a loss to another or to expose another to
the risk of loss."
In order for the actus reus to be satisfied the D must
make a representation which is false.
For the mens rea the D must be ...
1. dishonest;
2. know or believe the representation to be
untrue or misleading;
3. have an intention to make a gain or cause
a loss.
Representation.
This is defined in s. 2(3) FA2006
"Representation means any representation as to
fact or law, including making a representation as to
the state of mind of -
a) the person making the representation, or
b) any other person."
What is a representation as to fact?
It is where someone uses a false identity, says they own
property when they don't, changes the mileage on a car etc.
What is a representation as to law?
The D states the law knowing that what they have said is
untrue.
What is a representation as to state of mind?
A customer saying that they will pay their bill when they
have no intention to etc.
s. 2(4) FA2006 states that a representation can be express
or implied.
Representations to machines.
The representation can be made to a person or a
machine.
s. 2(5) FA2006
"A representation may be regarded as made if it (or
anything implying it) is submitted in any form to
any system or device designed to receive, convey or
respond to communications (with or without
human intervention)."
What situations does this cover?
Any situation where it is possible to obtain property
via a machine or the internet.
• cash from a cash machine;
• "speaking" to an automated telephone service;
• ordering goods off the internet;
• putting a fake coin into a vending machine
Express representations.
There is no limit on how the representation could be
expressed. It could be written, spoken, posted on a
website etc.
A written statement could include things such as using
a fake identity card or providing a false reference.
An express representation could also include giving an
excessive quotation for work, especially where it is
represented that more work is needed than is actually
necessary.
Silverman (1987)
The D gave an excessive
quote to 2 old sisters for work
on their flat. He'd done work
for them before and built up
some "mutual trust".
By giving them an inflated
quote he was deceiving them
as to the true cost of the
work and the amount of
profit he was making.
Hamilton (2008)
V's son bought some fence panels
that were the wrong size and left
them at the side of the house until
he could replace them.
D told V that he had come to
collect payment for the panels (they
had already been paid for) and then
he would arrange for replacements
to be delivered. V paid D £60.
This was an express representation
as D had told V the fence panels
hadn't been paid for when they had.
The offence could also be carried out by
"phishing".
This is where a person sends out an email to a large
number of people falsely representing that the
email has been sent by a bank. The email then asks
for personal information so that the "phisher" can
gain access to the Vs' accounts.
Implied representations
This is where the representation is made even
though the D has not expressly stated it.
For example, this may be through the D's conduct.
Barnard (1837)
The D went into a shop in
Oxford wearing the cap and
gown of a "fellow commoner" of
the university. He also stated he
was a fellow commoner. As a
result the shopkeeper gave him
goods on credit.
It was stated obiter that the D
would have been guilty even if
he'd said nothing.
The wearing of the cap and gown
was a "false pretence".
There is no definition of an implied false
representation in the Fraud Act 2006 but the
explanatory notes of the act state ...
"An example of a representation by conduct is
where a person dishonestly uses a credit card to pay
for items. By tendering the card, he is falsely
representing that he has the authority to use it."
Lambie (1981)
The D had a credit card with a
£200 limit. She exceeded this
limit and the bank wrote to her
and asked her to return the
card. She agreed to return it
on 7th Dec 1977, but didn't.
On 15th Dec 1977 she bought
goods worth £10.35 on the
card.
This is an example of an
implied representation by
conduct.
Other examples of an implied representation could
be ...
1. Ordering and eating a meal (there is an implied
representation that you will pay for it);
2. Paying by cheque (there is an implied
representation that the bank will honour it);
3. Use of a cheque guarantee card (there is an
implied representation that the user has the
bank's authority to use it).
Intention to pay for a meal.
DPP v Ray (1973)
The D went to a restaurant with 3 friends. D didn't
have enough money to pay but one of his friends
agreed to lend him enough to pay for the meal.
After eating they all decided not to pay and when
the waiter went into the kitchen they all ran off.
Their conduct of ordering and eating the meal was
an implied representation that they would pay.
Paying by cheque.
Gilmartin (1983)
The D, a stationer, paid for supplies with post-dated
cheques that he knew would not be met.
He was impliedly representing that there would be
funds in his account to meet the cheques.
Use of a cheque guarantee card.
Metropolitan Police Commander v Charles (1976)
The D had an overdraft of £100 and a cheque
guarantee card that guaranteed cheques worth up
to £30.
D wrote out 25 cheques for £30 to buy gambling
chips and backed each cheque with his card.
He knew the cheques would be honoured so there
was no fraud relating to the casino.
However, he knew he didn't have enough money
in his account and that he would exceed his
overdraft limit.
D had also been told by his bank manager not to
use the card to cash more than one £30 cheque per
day.
The HL stated there was a false representation that
he had the bank's authority to use the card in the
way that he did.
False.
False is defined in s. 2(2) FA2006 as ...
"A representation is false if:
a) it is untrue or misleading, and
b) the person making it knows that it is, or might
be, untrue or misleading."
So, it doesn't matter whether anyone believes the lie
or not and it doesn't matter whether the D gains
any advantage from the representation.
It is a matter of fact whether something is true or
not.
"Misleading" is not defined in the Fraud Act 2006
but the Government in Fraud Law:
Government Response to Consultation
(2004) stated a representation was misleading if it
was ...
"... less than wholly true and capable of
interpretation to the detriment of the victim."
Gain or loss.
The D must intend to make a gain for himself or
another;
or cause a loss to another;
or expose another to the risk of loss.
There must be a gain or loss of money or property.
Property is defined in s. 5 FA2006 as:
"Any property whether real or personal, including
things in action and other intangible property."
Gain means keeping what one has and getting
what one doesn't have.
Loss means not getting what one might get
and parting with what one has.
The gain and loss can be permanent or temporary.
Kapitene (2010)
D was an illegal immigrant who
applied for a job at a cleaning
firm. He signed a declaration
that he could work in the UK
and showed them a passport
that had a stamp stating he had
indefinite leave to remain in the
UK. He began work.
D's gain was the wages he has
paid. V's loss was the wages
paid out.
MENS REA:
Dishonesty.
The explanatory notes state that the Ghosh test
must be used to define dishonesty.
1. Is the D's behaviour dishonest by the ordinary
standards of reasonable and honest people?
and
2. Was the D aware that his conduct was dishonest
by those standards?
Know or believe the representation
to be untrue or misleading.
The D must know the representation is untrue or
misleading or that it might be ... this is a purely
subjective test (based on what the D believes).
Intention to make a gain or cause a
loss.
The gain or loss does not actually have to happen.
The D only needs to intend for it to happen.
It is also unnecessary to prove the false
representation caused the V to part with the
property.
2. Obtaining services dishonestly.
This is defined in s. 11 FA2006
In order to satisfy the actus reus 4 things must be
proved ...
1. There must be an act.
2. Services must be ...
3. ... obtained and ...
4. ... not paid for or not paid in full.
Services.
Services are not defined by the FA2006 but the explanatory
notes do give examples.
• using a false credit card to obtain services on the internet;
• climbing over the wall of a football stadium and watching for
free;
• using a bus pass to get a free/reduced price ride;
• falsely claiming to be under 14 to see a film for a cheaper price;
• using a stolen decoder card to receive satellite TV.
Obtains.
The service must actually be obtained.
This is different from fraud by false representation
where only the intention was enough.
Not paid for.
The offence is only committed if the D does not
pay anything for the service or does not pay in full.
If the D has made a false statement but has paid
in full then there is no offence committed.
MENS REA:
Dishonesty.
This is not defined in the act and the explanatory notes do
not state whether the Ghosh test should be used or not.
But in practice the Ghosh test is used for this offence.
1. Is the D's behaviour dishonest by the ordinary
standards of reasonable and honest people?
and
2. Was the D aware that his conduct was dishonest by
those standards?
Intention not to pay.
The prosecution must prove that the D intended
not to pay in full or not pay at all.
If the D thinks someone else has paid already then
the D will not be guilty.
3. Making off without payment.
This crime was created after it became obvious that
there were gaps in the law under the Theft Act
1968.
One of these gaps can be seen in ...
Greenburg (1972)
The D filled his car with petrol and
then drove off. The D was not
guilty of theft because when he
drove off the petrol belonged to
him. Also, it could not be proved
that the D was dishonest when he
was filling up. D stated he only
decided to drive off after he'd filled
up.
It is unacceptable that these
situations exist and so the crime of
making off without payment
was created.
The offence of making off without payment is
defined in s. 3(1) Theft Act 1978
"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."
ACTUS REUS.
4 elements must be proven to satisfy the actus reus:
1. The D must make off;
2. Goods must have been supplied or a
service done;
3. Payment must have been required/expected
on the spot.
4. The D must not have paid.
D makes off.
The D must have left the scene where payment was
expected.
This a question of fact ...
... did the D leave the scene or didn't he? Yes or
No?
McDavitt (1981)
The D argued with the manager of
a restaurant and refused to pay the
bill. D got up to walk out but was
advised not to as the police had
been called. So, he went into the
toilet and stayed there until the
police arrived.
Had D "made off"?
No.
Why?
The D had not left the restaurant.
Goods have been supplied/a service done.
If the service is not complete then there is no
offence.
Troughton v Metropolitan Police (1987)
The D (who was drunk) hired a taxi to take
him home but didn't give the driver his
address. The driver stopped to get
directions from D and an argument
occurred. The driver drove to the nearest
police station and when the taxi stopped
the D ran away.
Is D guilty?
No.
Why?
The journey (the service) had not been
completed. The driver was in breach of
contract and the D did not have to pay the
fare.
Payment required on the spot.
Payment on the spot must be required or expected.
If it is not expected or required then there will be
no offence.
Vincent (2001)
The D stayed at 2 hotels and didn't pay
his bill. The D claimed that he had
arranged with the owners to pay when
he could.
Is D Guilty?
No.
Why?
Payment on the spot was not required or
expected.
Even if the D had been dishonest when
he made the arrangement he still would
not be guilty.
D has not paid.
This is a matter of fact.
Has the D paid or not?
The payment must be for the amount due.
MENS REA:
Dishonesty.
The Ghosh test is used.
1. Is the D's behaviour dishonest by the ordinary
standards of reasonable and honest people?
and
2. Was the D aware that his conduct was dishonest
by those standards?
Knowledge that payment on the spot
is required.
If the D doesn't know payment on the spot is
required then he is not guilty.
Intention to avoid payment.
The act only states "with intent to avoid payment
of the amount due" but ...
... in Allen (1985) the HL stated that there must be
intent to permanently avoid payment.
