Cases - deception

Adams, R v (1993) CA

^[Deception - false representation - words or conduct]
D filled in a car hire form. He was asked whether he had any previous convictions for motoring offences and also whether he had ever been disqualified from driving. D ticked the 'No' box in answer to both questions.

He had been disqualified from driving for four years earlier.

D argued that ticking the box was not a false representation as it was the correct answer to one of the questions.

Held: The form was badly drafted but not misleading. D should only have ticked the 'No' box if the answer to both questions had been 'no'.

Guilty

Attewell-Hughes, R v
(1991) CA

^[Deception - evasion of liability - sec 2(1)(b) TA 1978 - can be committed in two ways - liability of D or another]
D was the manager (not the owner) of a hotel on the Isle of Wight. He wrote cheques for goods and services, the funds available in the account were not sufficient to cover the cheques. One cheque was for VAT owed by the hotel owner.

D claimed that a liability to pay VAT (and other debts) was that of the hotel owner and not D himself.

Held: There are two ways of evading a liability by deception under section 2(1)(b) of the 1978 Act
(i) by the defendant intending to make permanent default on his own liability, or
(ii) by intending to enable another to make permanent default in respect of that other's liability.

Whether the liability was D’s or the hotel owner’s was clearly material to the jury’s consideration of D's dishonesty, the trial judge had misdirected the jury on this point. The CoA questioned how D would make permanent default on behalf of the hotel owner.

Not guilty

Barnard, R v (1837)

[Deception - by words or conduct]
D went into an Oxford shop wearing a fellow commoner's cap and gown. He induced the shopkeeper to sell him goods on credit by an express representation that he was fellow commoner.

Held: Bolland B (obiter) D would have been guilty even if he had said nothing.

Guilty

Charles, R v [1977] HL

^[Deception - common elements - obtaining cheques and credit cards - false representation by words or conduct - by silence]
D obtained gaming chips at a gaming club using cheques and a cheque card knowing he was overdrawn. His false representation was that he was entitled to use the cheques in this way.

Held: D made a representation to the payee that he had authority to enter, into the contract expressed on the card that the bank would honour the cheque. If D knew that the bank had withdrawn that authority then the representation was false and amounted to a deception.

Guilty

Collis-Smith, R v (1971) CA

[Deception - common elements - deception must be operative]
D filled his car with petrol and then told the garage attendant that his employer would pay, which was not true.

Held: The deception could not have been operative since it was not made until after the property in the petrol had already passed to the defendant.

Davies v Flackett [1973] DC

^[Deception and Machines]
In the absence of any clear authority (the point being left open, commentators have always taken the view that offences of actual or intended deception can only be practised against some other living person. A person who uses another's personal identification number to access a computer or to withdraw cash from a bank's automatic service till would not therefore be regarded as obtaining either services or property by deception. In the latter case he might of course be guilty of theft as if he had used that other's key to open a safe.

Deller, R v (1952) CA

[Actus reus - obtaining by a deception – deception must be untrue]
D induced C to purchase his car by representing that it was free from encumbrances. D had previously executed a document, which purported to mortgage the car to a finance company, and, no doubt, he thought he was telling a lie. It then appeared that the document by which the transaction had been effected was probably void in law as an unregistered bill of sale. If it was void the car was free of all encumbrances "... quite accidentally and, strange as it may sound dishonestly the appellant had told the truth. Although he had mens rea, no actus reus had been established.

(D could now be convicted of an attempt to obtain by deception).

Not Guilty

Doukas, R v (1978) CA

^[Section 15 - obtaining property by deception - false representation by words or conduct - by silence - deception must be operative]
D was a hotel waiter. D was charged with going equipped to steal (s 25 of the Theft Act 1968) having been found with a quantity of bottles of wine of a type not sold by the hotel. D admitted that he sold the wine to hotel customers for his own profit.

Held: it had to be proved that D's deception was operative on customers who bought the wine. A hypothetical question has to be asked of the customers, namely: "Why did you buy this wine?" or "If you had been told the truth would you or would you not have bought the commodity?" The jury must decide the answer to this question but there is no doubt that in this case the hypothetical customer would answer that he would not buy the wine if he knew of D's deception.

Lane LJ

'Indeed it would be a strange jury that came to any other conclusion and a stranger guest who gave any other answer' ' because if he was dissatisfied with the wine for any reason he would have no recourse to the hotel

Guilty

Firth, R v (1990) CA

^[Deception - false representation by words or conduct - an act of omission - obtaining exemption from or abatement of a liability]
D evaded a liability by deception (Theft Act 1978 s 2). He avoided paying for tests by dishonestly failing to tell the hospital that the patients were private. D a consultant gynaecologist and head of an NHS department also ran a private practice from home. D could have agreed with the NHS that he would pay for the tests and recoup the money from his private patients.

Held: If D had to give relevant information to the hospital and if he dishonestly and deliberately did not, with the result that his patients or himself were not charged for the tests, then the offence is complete. It did not matter whether it was an act of commission or an omission.

Guilty

Ghosh, R v (1982) CA

^[Dishonesty – two stage test]
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 whether according to the standards of the ordinary reasonable 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.

Guilty

Gilmartin, R v (1983) CA

^[Deception - section 15 - obtaining property by deception - false representation by words or conduct - by silence - deception must be operative]
D, who ran a stationery business, obtained property by deception by signing four cheques on behalf of a company he owned in payment for goods. All four cheques were dishonoured. D sold the goods he had bought with the cheques in return for cheques made out for cash. D intended to buy back the post-dated cheques with the cash.

Held: the drawer of a post-dated cheque impliedly represented to the payee that on the date that the cheque was handed over, the situation was such that when the cheque was presented it would be honoured on or after the dated specified on the cheque. If D knew that the bank would not honour the cheque on that date then the representation was false and could amount to a deception.

Guilty

Greenstein [1976] CA

^[Deception - implied representations - cheques]
DD applied for overlarge volume of shares (called 'stagging') for which he sent a cheque. There was no overdraft facility on the account. They expected to meet the cost of the shares allotted by using a cheque they would receive for unallotted shares.

Held: The issuing houses would not have issued shares if they knew their own cheques were going to fund the application.

Guilty

Also here

Harris, R v (1975) CA

^[Deception - deception - false representation - words or conduct)]
D asked for a single room in a hotel for four nights. He gave false particulars. He had no luggage. He told the manager he had stayed in the hotel before and had to spend £30 on repairs to the windscreen of his car. D went to his room but the manager called the police.

D argued he never intended not to pay and that he had only given false particulars in order to obtain accommodation for which he did not, at the time, have money to pay for.

Held: The action in booking into the hotel constituted a representation that he was going to pay for the room.

If he did not intend to pay for the room then his representation was false and he was committing a deception by conduct.

Guilty

Hazelton, R v (1874)

[Deception -meaning - cheques - what they imply]
D paid for goods he had ordered by cheques. D had shortly before opened an account at the bank, but had drawn out the amount deposited except a few shillings. Various cheques of his had been refused payment, and he would not have been permitted to overdraw. He did not intend when he gave the cheques to meet them, but intended to defraud.

Held: there was evidence of the false pretence that the cheques were good and valid orders for the payment of their amount.

A person tendering a cheque impliedly makes three representations

that he has an account on which the cheque is drawn
he has authority to draw from the account
the cheque is valid for that amount

However, in Charles the HoL suggested there was only one representation and doubted the test in Hazleton. There is only one representation that was that the cheque in the normal course of events would be honoured. It is the same for post-dated cheques.

Holt, R v (1981) CA

^[Deception - evasion of liability - inducing a creditor to wait or forgo payment]
D's were eating in a restaurant. To evade payment they were to pretend that the waitress had removed a £5 note from their table. An off-duty police officer overheard them. They were prevented from leaving after they had carried out the deception.

Held: The elements that are unique to s 2(1)(b) TA 1978 are the default on the whole or part of an existing liability and an intention to make permanent default. D's were motivated by an intent to make a permanent default and therefore they had been rightly convicted under s 2(1)(b).

Guilty

Jeff and Bassett, R v (1966) CA

[Deception - misrepresentation of fact and statements of opinion]
DD told a householder that they had effected necessary repairs to his roof and that they had done the work well. In fact nothing had needed to be done to the roof, and what they had done served no useful purpose.

Held: this was a misrepresentation of fact.

King, R v (1986) CA

^[Deception - section 15. obtaining property - false representation by words or conduct - by silence - Deception must be operative]
D falsely claimed he was a tree surgeon and told V that four trees in her garden were dangerous and needed felling. D offered to fell them for £470 cash. While V was withdrawing the cash the police were informed. D claimed that V was not induced to part with the money as a result of the deception but as a result of the work that would have been done.

Held: whether the false representation was operative in causing the obtaining of the property was an issue of fact to be decided by the jury. In this case, there was ample evidence to suggest that if the money had been paid it would have been as a result of the false representation made to V.

Guilty

Lambie, R v (1981) H

^[Deception - section 15, obtaining property - false representation by words or conduct - by silence - Deception must be operative]
D used a credit card in a shop to pay for goods, knowing that she was well over her credit limit. D argued that the shop assistant had not relied on her false representation to accept the card in payment for the goods (being over her limit was of no concern of the shop).

Held D had made a false representation that she was authorised to enter into contracts on behalf of the credit card company binding the company to honour the voucher signed by D. This false representation induced the shop assistant to complete the transaction and to allow D to take the goods away. Had she known that D was acting dishonestly she would not have completed the transaction.

Guilty

Laverty, R v (1970) CA

^[Deception - section 15, obtaining property - false representation by words or conduct - by silence - Deception must be operative]
D sold a car bearing false number plates to V in return for a cheque for £165. D deceived V by a false representation that he was the lawful owner of the car and entitled to sell it. The question was, did V rely on that false representation in handing over the cheque.

Held: Whether the false representation in any case is operative is a question of fact to be determined by the jury. 'The proper way of proving these matters is through the mouth of the person to whom the false representation is conveyed'. In this case no such inference could be drawn from V's evidence.

Not guilty

Mandry and Wooster, R v [1973]

[Deception - meaning of deception - must be false]
Ds were street traders selling scent for 25p. The told prospective purchasers "You can go down the road an buy it for 2 guineas in the big stores". The police checked but did not check Selfridges.

Held: The police could not check everywhere, the defence should have produced evidence of where it was being sold. There was no evidence that it was on sale at Selfridges or anywhere else.

Guilty

Preddy, R v [1996] HL

Whole case here

^[Deception - property belonging to another - bank account is a thing in action]
D applied for money to be secured by mortgages. In each case D made statements which he knew to be false. The money was transferred to D’s bank electronically.

D was charged with dishonestly obtaining and attempting to obtain advances by way of mortgages (1968 Act, s 15(1)).

Held: When D's bank account was credited, he did not obtain a lender’s chose in action. On the contrary, that chose in action was extinguished or reduced and a chose in action was brought into being representing a debt in an equivalent sum owed by D’s bank to D. So D had not obtained property belonging to another.

Not guilty.

Danger (1857) followed, Duru (1978) overruled
Comment: This case lead to the immediate passing of the Theft (Amendment) Act 1996 which effectively describes what Preddy did and declares that to be an offence.

Also here.

Rai, R v (2000) CA

[Deception - dishonest appropriation - silence and inactivity amount to deception]
D made an application whilst his mother was alive to Birmingham City Council Social Services to provide a bathroom for the benefit of his elderly and infirm mother. D’s mother died, but the council carried out the works on the appellant's house.

Held; Failure to report a known change of circumstances where the other party still believed that the original state of affairs still existed was positive acquiescence for the purposes of obtaining services by deception.

D’s conduct viewed as a whole had amounted to a continuing representation that his mother was alive and that it was his intention that she benefit from the works.

Conduct amounting to positive acquiescence could constitute conduct amounting to deception.

Guilty

Ray, DPP v (1973) HL

^[Deception - common elements - evading liability by deception - false representation by words or conduct]
D left a restaurant without paying for his meal. When the meal was ordered D intended to pay for it. After eating it, D changed his mind and decided to leave without paying for it. D waited for the waiter to leave the room (about 10 minutes) and then left the restaurant.

D argued that he had not, by words or conduct, made a false representation.

Held: D had made a false representation by conduct.

D's conduct throughout is relevant. D had made a representation, on entering the restaurant that he was an ordinary customer and would pay for his meal before he left.

At the time this was a true representation and the waiter had acted upon it. It was a continuing representation throughout the time that D was in the restaurant that became false when D decided not to pay for the meal.

D practised a false representation by remaining at the table for a short period, until the waiter left the room, before leaving the restaurant. By that deception, D had evaded his liability to pay for the meal.

Guilty (under sec 16 but ratio applicable to sec 15)

[Obtaining exemption from or abatement of a liability]

Held the word 'existing' could be found in ss 2(1)(a) and 2(1)(b), but not in s 2(1)(c) Theft Act 1978. Section 2(1)(c) was meant to cover a future or expected liability even if the alleged deception was not a continuing one.

Re London and Globe Finance (1903):

[Deception - definition]
The best definition of 'deception' itself is supplied by Buckley J

“To deceive is...to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false.”

Sibartie, R v [1983] CA

[Deception - exemption or abatement of liability]
D flashed an out of date season ticket so quickly that the inspector could not read it.

Held: the proper approach is give the offence 'its ordinary meaning'

The inspector in fact has not been persuaded to remit the liability but to believe that there is no liability. Also any liability there might be has not been remitted. The inspector has been persuaded to forgo payment, in which case the conduct of d is better seen as contrary to paragraph (b)

Silverman, R v (1988) CA

^[Deception - section 15, obtaining property by deception - false representation by words or conduct - by silence]
D overcharged two old ladies for doing work to their flat. They had trusted him to charge a fair price because in the past he had always done so.

Held: D had put no pressure on the ladies to accept his quotation, but it did amount to a false representation by silence. Mutual trust had been built up over some time between the two parties. D's silence over the excessiveness of the quotation was 'as eloquent as if he had said, "What is more, I can say to you that we are going to get no more than a modest profit out of this"'.

Guilty.

Smith, R v (Wallace Duncan) (No 4) [2004] CA

^[Deception - s1 TA 1978 - deception can be anywhere in the world]
D a Canadian working from the UK set up various bogus deals. A "repo" a type of lending occurred in New York, and so D alleged the UK courts had no jurisdiction.

Held: A court could try an offence of obtaining services by deception where the obtaining took place outside the jurisdiction but a substantial part of the deception took place within the jurisdiction, provided that there was no reason of international comity why the court should not do so.

It would undermine the inherent nature of the common law if courts were prevented as a matter of principle from developing the law to meet the needs of contemporary society in the present situation.

Guilty (of substituted offence of s1 TA 1978)

Sofroniou, R v (2003) CA

Whole case here

^[Obtaining services by deception ‘services’ includes bank account or credit card]
D obtained a credit card from a bank and obtained property using it.

Held: Dishonestly obtaining a bank or building society account or credit card services constituted obtaining services by deception (Theft Act 1978, s 1).

The words "services" and "on the understanding that the benefit has been or will be paid for", used in the Act, covered obtaining of a credit card. The card itself was not a service or services. The “services” were those which underlay the card holder's use of the card.

Similarly, opening of a bank account could constitute obtaining services by deception.

The dishonest operation of a bank or building society account over a period and a dishonest use of a credit card over a period constituted obtaining services within the section.

The section did not cover obtaining free services by deception. Banks often made charges on accounts which were in credit and charged interest on accounts which were overdrawn. Similarly with credit card providers, and that is what happened in this case when the account went overdrawn. D was dishonest.

It was possible to have the benefit of a credit card without ever making any identifiable direct payment to the credit card provider.

Guilty

Talbot, R v [1995] CA

[Deception - sec 15 TA 1968 - effect of deception - a claim of right]
D obtained a lease in her stage name to hide from the landlord that she was receiving housing benefit. She applied for the benefit in her name and gave her stage name as the landlady.

Held: The housing officer would not have paid had he known the truth (even though as D thought, she was entitled to the benefit).

Guilty

Turner, DPP v [1974] HL

[Deception - inducing creditor to wait or forgo - make permanent default]
D owed C £38 for work done. d told C that he had no ready cash and gave him a cheque, knowing it would bounce, probably intending to make good the debt later.

Held: Such conduct falls with in s2(1)(b) only if d intend to make permanent default on the debt.

Guilty

Widdowson, R v (1985) CA

[Deception - obtaining services]
D obtained a hire purchase agreement to assist in the purchase of a van. He was not creditworthy and gave the name of a neighbour, but accidentally signed the application with his own name. D claimed that this was not the same thing as credit facilities and it did not fall within the definition of services in s 1 of the Theft Act 1978.

Held: Obtaining a hire purchase agreement was services for the purposes of s 1 TA 1978, it could not be described as credit facilities because on making a hire purchase agreement the company did not give any credit to the hirer, but merely the option to purchase on paying all the instalments or to terminate the agreement at any time.

Not guilty (other grounds)

Williams (Roy), R v (2000) CA

[Deception - distinguishing appropriation and obtaining]
D, a Bournemouth builder dishonestly over billed for work done. In many cases the alleged theft was of a chose in action involving payment to D by way of cheque on a bank account in credit.

Held: The rule in R v Preddy [1996] did not apply to a case of theft involving appropriation and the assumption of the rights of an owner.

Theft of a chose in action may be committed when a chose in action belonging to another is destroyed by the defendant's act of appropriation as defined in s3(1) of the Act.

There was a difference between "appropriation" and "obtaining." If the defendant or his agent caused the diminution in the relevant bank balance he stole it; if the defendant was paid by a cheque which he presented and which was honoured, it seemed clear that he did appropriate the balance.

Guilty