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PostPosted: Wed Jul 14, 2010 4:58 pm 
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Making off without payment


Making off without payment is an offence under s.3 Theft Act 1978. The offence of making off without payment was introduced in response to a gap in the law under the Theft Act of 1968 whereby if a person forms a dishonest intent not to pay for goods or services after receiving them they could not be convicted under the deception offences (see Edwards v Ddin (1976) 63 Cr App R 218 Case summary. The offence of making off covers such activities as leaving a restaurant or hotel without paying, not paying a taxi fare and filling up with petrol and driving off. Making off without payment is a triable either way offence. Under s.4 Theft Act 1978, the maximum sentence for making off if tried on indictment is 2 years and 6 months if tried summarily.

S.3 Theft Act 1978 provides:


…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 shall be guilty of an offence.


Actus reus of making off without payment


The actus reus of making off without payment consists of:

•Makes off

•Without payment

•Payment required or expected on the spot

•Goods or services done


Makes off

Makes off simply means depart or leave:

R v Brooks and Brooks (1983) 76 Cr App R 66 Court of Appeal

A father and daughter and a man named Smith went to a restaurant. The daughter left early in a rush. The father and Smith then absconded without paying. They were convicted of making off without payment. The daughter appealed contending she thought her father was paying and was thus not dishonest.

Held:

The daughter's conviction was quashed. The words 'dishonestly makes off' should be given their ordinary meaning and the jury should relate these words to the facts of any case. In the majority of cases no elaboration is required. There is no requirement of leaving by stealth in order to amount to being dishonest, the words 'makes off' simply means depart.



If the defendant does not actually leave the spot where payment was due then no offence is committed. If the person is caught before leaving the spot, the correct charge would be attempt to make off:



R v McDavitt [1981] Crim LR 843

The defendant refused to pay his bill in a restaurant after having an argument with the manager. He tried to walk out of the restaurant but the manager told him the police had been called and told him to stay. He remained in the restaurant until the police arrived and he was charged with making off without payment.

Held:

He had not left the restaurant and therefore had not 'made off'.

Without payment


This is a question of fact. If the defendant pays with forged money then no payment has been made. If they pay with a credit card without authority to use the card, it depends upon whether the card company honours the payment (the defendant may be liable for fraud). If they pay by cheque backed by a guarantee card, the bank will honour the cheque even if the defendant has no money in the account to pay for it.

Payment required or expected on the spot


If the service or goods are offered for free, no offence of making off without payment can be established, no matter how dishonest the defendant might have been in procuring the goods or services for nothing. (There may well be an offence under the Fraud Act 2006). Also, if the goods or services are offered on the understanding that they will be paid for, but the defendant enters an agreement to defer payment, no payment is expected or required on the spot and therefore no liability for making off can arise:

R v Vincent [2001] EWCA Crim 295 Court of Appeal

The appellant stayed in two hotels. He left both claiming to be suffering from financial difficulties and made arrangements to pay at a later date. He was later charged with making off without payment when no payment materialised. The trial judge directed the jury that should convict if they thought the agreement to postpone payment was made dishonestly. The jury convicted. The appellant appealed arguing that payment on the spot was not required or expected and that he had made a genuine agreement to postpone payment and was therefore not dishonest.

Held:

His conviction was quashed. Since the appellant had entered an agreement to postpone payment, payment was not required or expected on the spot and therefore the actus reus of the offence was absent.

LJ Pill:

"In circumstances such as these, the section does not in our view require or permit an analysis of whether the agreement actually made was obtained by deception. The wording and purpose of the section do not contemplate what could be a complex investigation of alleged fraud underlying the agreement. If the expectation is defeated by an agreement, it cannot be said to exist. The fact that the agreement was obtained dishonestly does not reinstate the expectation. While the customer would be liable to be charged with obtaining services by deception, if he continued to stay at the hotel with that dishonest intention, he would not infringe section 3."


There is no particular geographical location for 'on the spot' for the offence of making off without payment, there is simply a requirement that liability to make payment has arisen:

R v Aziz [1993] Crim LR 708 Court of Appeal

The defendant and a friend had been drinking. At 11.30 they got a taxi to take them into town to a night club. On arrival the driver asked for the fare of £15. The defendant, in his drunken state, objected to this and offered the driver £4. An argument arose so the taxi driver drove to the nearest police station to sort things out. The defendant became increasingly aggressive and the taxi driver pulled over at a garage to get help and the defendant ran off. He was convicted of making off without payment and appealed contending that he had not made off from the spot where payment was due (ie at the nightclub).

Held:

His conviction was upheld. The location of making off was not relevant. All that is required for the offence is that payment was due on the spot.

Moberly v Alsop (1991) The Times 13 December

The defendant travelled on the underground without purchasing a ticket. He was caught and escaped through the exit barrier without paying. He argued that the payment was not due on the exit barrier so had not made off from the spot where payment was due.

Held:

His conviction was upheld. The spot where payment was due was not limited to where the defendant should have paid, but also to where he should have made good his default. There can be more than one spot where payment is due.


If liability to make payment has not yet arisen, then no payment is required or expected on the spot:

Troughton v MPC [1987] Crim LR 138 Divisional Court of QBD

The appellant got in to a taxi and asked to be taken to Highbury but did not give a specific address. He was heavily intoxicated at the time. He got into an argument with the taxi driver accusing him of taking a detour. The taxi driver asked him the address of the location he wanted and the appellant refused to answer. The taxi driver took him to the nearest police station and he ran off. He was charged and convicted with making off without payment and appealed.

Held:

His conviction was quashed. He had not been taken to Highbury and therefore liability to make payment had not yet arisen.


Goods or services done


S.3 (3) Theft Act 1978 provides that no offence of making off without payment is committed 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. So for example the bank robber that does not pay his get away driver would not be committing an offence as the service is contrary to law. The punter that does not pay for services received by a prostitute has not committed an offence of making off as the payment is not legally enforceable.



Mens rea of making off without payment

The mens rea of making off without payment consists of:

•Knowledge that payment is required or expected on the spot
•Dishonesty
•Intentention to avoid payment

Knowledge that payment is required or expected on the spot

If the defendant believes the goods or services are provided free, there can be no liability for making off without payment. Similarly, if they believe that the goods or services are offered on credit then no liability can arise.

Dishonesty


Dishonesty should be given its ordinary meaning. In the majority of cases, no elaboration of dishonesty is required:

R v Brooks and Brooks (1983) 76 Cr App R 66 (see above)

Where the defendant is claiming his actions were not dishonest, an application of the Ghosh test may be required:

R v Ghosh [1982] 3 WLR 110 Court of Appeal

The appellant was a surgeon who claimed money in respect of operations which he had not carried out. He argued his actions were not dishonest as the same sums were legitimately due to him for consultancy fees. The trial judge directed the jury:


"Now, finally dishonesty. There are, sad to say, infinite categories of dishonesty. It is for you. Jurors in the past and, whilst we have criminal law in the future, jurors in the future have to set the standards of honesty. Now it is your turn today, having heard what you have, to consider contemporary standards of honesty and dishonesty in the context of all that you have heard. I cannot really expand on this too much, but probably it is something rather like getting something for nothing, sharp practice, manipulating systems and many other matters which come to your mind. "

The jury convicted and he appealed.

Held:

His conviction was upheld. The test for determining dishonesty:

Lord Lane CJ


"In determining whether the prosecution has proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails.


If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest."




Intention to avoid payment


There must be an intent to permanently avoid payment for liability to arise for making off without payment:

R v Allen [1985] AC 1029 House of Lords

Allen stayed at a hotel for nearly a month and left without paying his bill. He telephoned the hotel and said he was experiencing financial difficulties as he was awaiting payment from certain business transactions. He arranged to pick up his belongings and to leave his passport to secure the debt. When he went to pick up his things the police were waiting for him and arrested him. During the deliberations the jury sent a note to the judge asking whether intent to avoid making payment included a temporary evasion. The judge answered the question:


"It says in count 2, 'knowing that payment on the spot for goods supplied and services done was required or expected from him . . .' 'On the spot' means the day you leave. There was no payment on the spot when he should have paid. It contrasts sharply with count 1 where the intent there is permanent: that is not so in count 2 where he was required to pay on the spot; and there has been a failure to do that."

The jury convicted and the appellant appealed contending that an intention to temporarily avoid payment was not within the ambit of the Act.

Held:

The conviction was quashed. Making off without payment required an intention to permanently avoid payment.


The offence of making off without payment therefore requires the defendant to dishonestly make off without paying for goods received or services done, knowing that payment was expected or required on the spot with the intention to permanently avoid payment.

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PostPosted: Sun Jul 18, 2010 2:26 am 
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I believe there have also been recent prosecutions for non-payment of taxi fares under The Fraud Act 2006.

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