Making Off Without Payment
Section 3 of the Theft Act 1978 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.
1. MAKING OFF WITHOUT PAYMENT
The defendant must make off from the spot where payment is required but there are conflicting authorities on what this means:
- In McDavitt, the defendant refused to pay a restaurant bill after an argument with the manager. The defendant walked towards the door but was told the police were being called. The defendant went to the toilet and remained there. The trial judge directed the jury to acquit the defendant, as he had not made off from the restaurant itself.
- In Brooks & Brooks, D1 ran out of a rear door and D2 was caught having walked out of a restaurant. ‘The spot’ was treated as being ‘the spot where payment is required’, which would normally be the cash register.
2. GOODS SUPPLIED OR SERVICE DONE
Section 3 is confined to circumstances where goods are supplied or a service is done on the basis that payment will be made there and then. The obvious example is the restaurant where everyone knows that the meal is supplied on the understanding that the bill will be paid before the diner leaves the restaurant (CLRC, Thirteenth Report, para. 19). Further examples of the application of s3 are the passenger who at the end of his journey in a taxi runs off without paying his fare; and the motorist who has had his car’s petrol tank filled at a garage and when the attendant is called to the telephone drives off without paying for the petrol (CLRC, Thirteenth Report, para. 20).
Section 3 applies also to the collection of goods on which work has been done or in respect of which service has been provided. Examples are the collection from a shop of shoes which have been repaired or clothes which have been cleaned (CLRC, Thirteenth Report, para. 19).
3. WHEN PAYMENT IS REQUIRED OR EXPECTED
Section 3 is intended to protect legitimate business concerns only (CLRC, Thirteenth Report, para. 19). It does not apply when the supply of the goods or the doing of the service is contrary to law: s3(3). An offence is not committed under s3 if the payment required or expected is not legally due. Compare:
- Troughton v Metropolitan Police – A taxi driver took a drunken customer to Highbury but was then unable to get an exact address. He took a detour to a police station to try to clarify matters. The customer then tried to leave and was charged under s3. The Court of Appeal quashed the conviction on the basis that as the driver had not completed his part of the contract by taking the man home, payment was not yet required at the point when the defendant tried to make off.
- Aziz – The defendant and another man got into a taxi and asked to be taken to a certain club. When they arrived, they refused to pay the fare demanded, and the driver started to drive back to their starting point. On the way back, the other man started to damage the taxi and the driver stopped, whereupon both men ran away. The defendant was caught, and appealed against his conviction for “making off” on the grounds that payment was not expected at the place from which he had run. The Court of Appeal dismissed his appeal.
If the defendant obtains permission to pay at a later date, the offence is not committed:
- In Vincent, the defendant stayed at two hotels and left without fully paying his bills, having persuaded both hotel owners, by deception, to postpone payment. When payment was not later made, the defendant was charged under s3. The Court of Appeal quashed his conviction because the hoteliers had agreed to postpone payment, which meant that the actus reus had not been committed.
4. DISHONESTY
See Ghosh where the Court of Appeal laid down a two-stage test for dishonesty:
(1) A jury (or magistrates) must 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.
(2) If it was dishonest by those standards, then the jury (or magistrates) must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest. It is dishonest for the defendant to act in a way which he knows ordinary people would consider to be dishonest.
5. KNOWING THAT PAYMENT IS REQUIRED OR EXPECTED
It must be established that the defendant knew payment was required or expected of him. The obvious example is the restaurant where everyone knows that the meal is supplied on the understanding that the bill will be paid before the diner leaves the restaurant (CLRC, Thirteenth Report, para. 19). However, in Brooks & Brooks, the defendant left a restaurant in haste. When she was later interviewed, she said a friend had met her and her father and had offered to treat them to a meal. No one in fact paid. Her conviction was quashed because the trial judge had not alerted the jury to this defence.
6. INTENT TO AVOID PAYMENT PERMANENTLY
In Allen, the defendant left a hotel without paying his bill, leaving behind his belongings. He phoned later to say he was in financial difficulties. He offered to pay as soon as he received the proceeds from a certain business venture and arranged to collect his belongings and leave his passport as security. He was arrested upon his return. The House of Lords quashed his conviction and held that the prosecution had to prove an intention to avoid payment “permanently”.