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PostPosted: Sun Feb 07, 2010 7:02 am 
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FRAUD ACT 2006 - “doing a runner”:



Making off without payment, or bilking, is now caught by the Fraud Act 2006
Sections 2 and 11 are relevant, however, charges are most easily laid under
section 11:



Section 11 “Obtaining services dishonestly” This reads as follows:



(1) A person is guilty of an offence under this section if he obtains services
for

himself or another—



(a) by a dishonest act, and



(b) in breach of subsection (2).



(2) A person obtains services in breach of this subsection if—



(a) they are made available on the basis that payment has been, is being or

will be made for or in respect of them,



(b) he obtains them without any payment having been made for or in

respect of them or without payment having been made in full, and



(c) when he obtains them, he knows—



(i) that they are being made available on the basis described in

paragraph (a), or



(ii) that they might be, but intends that payment will not be made, or will not
be made in full.



(3) A person guilty of an offence under this section is liable—



(a) on summary conviction, to imprisonment for a term not exceeding 12

months or to a fine not exceeding the statutory maximum (or to both);



(b) on conviction on indictment, to imprisonment for a term not exceeding

5 years or to a fine (or to both).



(4) Subsection (3)(a) applies in relation to Northern Ireland as if the
reference to 12months were a reference to 6 months.





CPS guidelines on the above:

The elements of the offence are that the Defendant:

.
obtains for himself or another
.
services



.
dishonestly
.
knowing the services are made available on the basis that payment
has been, is being or will be made for or in respect of them or that they
might be and
.
avoids or intends to avoid payment in full or in part.


This offence replaces obtaining services by deception in the Theft Act 1978
which is partly repealed by the Act.

In many cases, the Defendant will also have committed an offence under
Section 2 of the Act (Fraud by making a false representation - that payment
will be made or made in full). Prosecutors must decide which offence better
reflects the criminality involved. The maximum sentence for the Section 11
offence is five years imprisonment.

a) “Obtains for himself or another”:

Section 11 differs from the offences under the Theft Act in that it requires the
actual obtaining of a service (by a dishonest act e. g. non payment).

It is not possible to commit the offence by omission of the service alone. This
avoids the situation where unscrupulous service providers might feel able to
pressure anyone who had been given services they had not requested.

b) “Services”

Services will have the same definition as in Section 1 of the 1978 Theft Act
(Archbold 2007, para. 21-3411). The service must be provided on the basis
that it will be paid for.

1 This is the standard practitioners work on crime, available at any decent public
library.

c) “Dishonestly”:

The Ghosh test will apply, see below.

d) “Knowing” :

the services are made available on the basis that payment has been, is being
or will be made for or in respect of them or that they might be and

e) “Avoids or intends to avoid payment in full or in part,” see below:

Under the Fraud Act the Defendant must intend to avoid payment for the
service provided (in full or in part). He must have that intention at the time he
'avoids'.


The “Gosh” test of dishonesty:




R v Ghosh, (1982) CA

D a surgeon was filling in as a consultant at a hospital. He pretended that he
had himself carried out surgical operations and that money was due to him.
The operations had, in fact, been carried out under the NHS by someone
else.



Held: In determining whether D was acting dishonestly, the jury had first to
decide whether what was done was dishonest. If it was, the jury must then
consider whether D himself must have realised that what he was doing was
dishonest by the standards of the ordinary reasonable person.





Payment due?:



R v Aziz [1993] Crim LR 708

[Making off without payment - 'the spot' where payment should be made]


D requested a taxi driver to take him to a club 13 miles away. On arrival D
refused to pay the £15 fare claiming that the journey was only four miles. The
taxi driver at first started to take them back to their hotel, then took them to the
police station where he ran out of the taxi.



Held: The Theft Act 1978 did not require payment be made on any particular
spot.
'On the spot' related to the knowledge that the customer had as to when
payment should be made.
In the case of a taxi, payment may be made whilst sitting in the car or
standing at the window but the fares were requested when the customer was
still in the car. The obligation to pay continued even when being taken back to
the starting point / police station.
'On the spot' was not necessarily the final destination of the journey:

Guilty



NOTE The Fraud Act does not repeal s.3 of the Theft Act; it is still available





Actions a driver could take:



Phone the police.



You can take the offender to the police station, but you must be aware that
you are making a citizen's arrest.



You need to be clear on the offence you are arresting for and tell the offender
you are taking this action.



You have the right to arrest as the offence is an “arrestable offence”.



You can use reasonable force. Broadly that means you can only use force if
the offender is resisting, and can only use sufficient force to apprehend. This
is complicated and subjective.



If force has to be used you are advised not to do so. You run the risk of injury
to yourself and damage to your vehicle. If you injure the passenger you could
be charged, you have to account for the force used. As the offence is not a
very “serious” one , it is not worth using 'reasonable force' better to let the
offender go and report the matter.

_________________
Justice for the 96. It has only taken 27 years...........repeat the same lies for 27 years and the truth sounds strange to people!


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PostPosted: Sun Feb 07, 2010 10:32 am 
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Sadly is it worth all the hassle and downtime incurred to pursue a small financial loss? may be be easier just to grin and it bear and then blacklist the offender if you can.


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PostPosted: Sun Feb 07, 2010 5:24 pm 
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Location: 1066 Country
bloodnock wrote:
Sadly is it worth all the hassle and downtime incurred to pursue a small financial loss? may be be easier just to grin and it bear and then blacklist the offender if you can.

I wouldn't care if I lost hundreds if I could see a runner in court.

_________________
IDFIMH


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PostPosted: Sun Feb 07, 2010 7:43 pm 
Sussex wrote:
bloodnock wrote:
Sadly is it worth all the hassle and downtime incurred to pursue a small financial loss? may be be easier just to grin and it bear and then blacklist the offender if you can.

I wouldn't care if I lost hundreds if I could see a runner in court.


Same here, since the shake up within the Police round here they no longer tell us it's a civil matter, they are out ASAP when you ring them.


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PostPosted: Fri Feb 12, 2010 10:03 pm 
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1847 act. Section 66. Fare unpaid may be recovered as a penalty If any person refuse to pay on demand to any proprietor or driver of any hackney carriage the fare allowed by this or the special Act, or any byelaw made thereunder, such fare may, together with costs, be recovered before one justice as a penalty.

Amendment
Repealed by the Criminal Damage Act 1971, s 11.8, Schedule, Pt I, and SI 1977/426, art 13(6),Sch2.
.....................................................................

The most potent act to secure a conviction of non payment is probably the 1978 Theft act as amended by the 2002 Police reform act. Below are the statutory Powers of arrest.

"Making Off Without Payment - Theft Act s. 3 Statutory power of arrest, Two years' imprisonment on indictment; six months' imprisonment and/or fine on summarily conviction".

The act itself.

The Theft Act 1978, s. 3 states:

(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 of him, dishonestly makes off without having paid as required or expected and with intent to avoid payment 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, suspects to be, committing or attempting to commit an offence under this section.

* Arrestable Offence as amended 01/09/02 under Police Reform Act 2002


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PostPosted: Fri Feb 12, 2010 10:21 pm 
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MAKING OFF WITHOUT PAYMENT(BILKING)

s3 of the Theft Act 1978
Crime and.Miscellaneous Offences Precedent Manual: B320
• --
POINTS TO PROVE
1.Knowing that payment on the spot...is required 2.For any goods supplied or service done
3.Dishonesty
4.Makes off without having paid as required or expected 5.With intent to avoid payment
Knowing that payment on the spot....is required
The "spot" in question is the place where the payment is required - for example at the end of a taxi ride or a meal or having filled a car with petrol at a service station. The required payment must be legally enforceable, so non-payment of a gambling debt is not an offence under this section.
2 For any goods supplied or service done
Goods include money and every other description of property except land, and includes things severed from the land.
Service is the conferring of a benefit by doing some act, or causing or permitting some act to be done on the understanding that it has been or will be paid for.
3 Dishonesty
This has the same meaning as in theft, namely:
1 Were the suspect's actions dishonest according to the ordinary reasonable
standards of reasonable and honest people, AND
2 If so, did the suspect realise that his actions were, according to those
standards. dishonest?
4 Makes off without having paid as required or expected
This will usually mean leaving the premises concerned, so if a suspect is prevented from leaving at the door, he commits only the attempt.
This includes slipping away, running out or driving off.
5 With intent to avoid payment
The intent must be to make permanent default; an intention to delay or defer payment is not enough.


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