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The Theft Act 1978 supplemented the earlier deception offences in English law contained in sections 15 and 16 of the Theft Act 1968 by reforming some aspects of those offences and adding new provisions. Sections 1 and 2 were repealed on 15th January 2007 with the implementation of the Fraud Act 2006. NB: Sections 1 and 2.- Sections 4(2)(a) and Section 5(1) Theft Act 1978 and Theft Act 1968 Sections 15, 15A, 15B and 16. In section 18(1), “15, 16 or”. Section 20(2). In section 20(3), “deception” has the same meaning as in section 15 of this Act, and”. Section 24A(3) and (4). In section 25(5), “, and “cheat” means an offence under section 15 of this Act”. were repealed under Schedule 3 of the Fraud Act 2006. Fraud Act 2006 commentary
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Section 1 (as amended by the Theft (Amendment) Act 1996), provides:
There must be a deception which, according to s5(1), has the same meaning as in section 15(4) of the Theft Act 1968, i.e.
Section 2 provides:
Section 2(1) is divided into three parts, all of which require both that a deception caused the obtaining, which may be for oneself or for another, and that there is a liability to pay which is legally-enforceable. All three also require proof that the creditor is deceived into releasing the defendant from the obligation to pay in some way. (Contrast the previous law represented by DPP v Ray which, for policy reasons, held that merely running out of a restaurant without positively deceiving someone was nevertheless an offence.
Section 2(1)(a) covers the deception which dishonestly secures the remission of the whole or part of an existing liability to make a payment. Unlike the other two subsections, this requires that the victim knows that a liability exists and knows how much he or she is remitting. It does not cover situations where the defendant tricks the victim into believing that no money is owing (ss2(1)(b) and (c) do cover this situation). If A borrows £50 from B and, when repayment is due, claims that a change of circumstances makes it impossible for him to repay some or all of the money; this deception persuades B to forgive the loan, or to accept £10 in full satisfaction (Criminal Law Revision Committee (CLRC), Thirteenth Report, para. 13). In R v Jackson (1983) Crim LR 618 (CA) Jackson tendered a stolen credit card to pay for petrol and other goods, and it was accepted by a trader, who then looked to the issuing credit card company for payment and not to the person tendering the card. This was held to dishonestly secure the remission of an existing liability and Jackson was convicted. For these purposes, the existing liability to make a payment may be the defendant\'s own liability or another\'s.
The provisions of s2(2) clarifiy that s2(1) does not apply where the liability has not been "accepted or established to pay compensation for a wrongful act or omission". This avoids the criminal law being a default liability for civil proceedings. Thus, if X lies about an accident to avoid a claim of negligence, no offence is committed. The claimant can commence civil proceedings once the deception is discovered (CLRC, Thirteenth Report, para 16).
Like s2(1)(a), this requires an existing liability to make payment but, unlike (a), it does not require that the creditor knows that he or she is "letting the defendant off". In R v Holt & Lee (1981) Crim LR 499 (CA) the defendants ate a meal in a restaurant which cost £3.65. When presented with the bill, they claimed that another waitress had already taken a £5 note from the table. Unfortunately, an off-duty policeman had overheard their planning. They were both convicted of an attempt by deception to induce the creditor to forego payment with intent to make permanent default. Their appeal against conviction was dismissed. The section is also concerned with dishonestly inducing a creditor to wait for payment. In many circumstances, this means that ss2(1)(a) and (b) will overlap, but there are also situations in which they do not. Thus, creditors who remit will also forgo, A particular instance of "wait for payment" is provided by s.2(3) which was a necessary amendment because of the general principle that accepting a cheque (even a worthless cheque) as the means of payment, means that, until the creditor receives notice that the cheque has been dishonoured, he or she stops seeking payment: see R v Hammond (1982). s2(3) provides that a person induced to take a cheque or other security for money by way of conditional satisfaction of an existing liability is to be treated not as being paid but as being induced to wait for payment. As mens rea, the defendant must make the deception with intent to make permanent default in whole or in part on any existing liability to make a payment of his own, or with intent to let another do so.
For there to be an offence under s2(1)(c) there must be dishonesty and a deception which obtains any exemption from or abatement of liability to make a payment. Because both ss2(1)(a) and (b) require an "existing" liability to pay, they do not cover situations where the point of the deception is to prevent a liability from arising in the future. s2(1)(c) would apply when a person flags down a taxi and claims only to have £5. The driver agrees to carry the passenger to the destination for this amount. The contract is made for a reduced amount which is an "abatement" for these purposes. If the driver agreed to carry for no charge, this would be an "exemption". The CLRC gave examples where the defendant dishonestly obtained a rate rebate or a reduction in rent for the future. Another example would be waving a credit card at a ticket collector at a railway station to avoid having to pay to board the train. In roader than previous two offences as not limited to existing liabilities. In R v Firth (1990) CLR 326 the defendant failed to tell the NHS that patients using NHS facilities were in fact private patients thereby obtaining facilities without payment (an example of an omission or silence constituting the deception). In R v Sibartie (1983) CLR 470, the defendant was convicted of attempting s2(1)(c) when he deceived a ticket collector on the underground into believing that he had paid for the whole of his journey. In fact, he had only purchased tickets which covered the first few and last few stations in his journey. The court of first instance said that that was a dishonest attempt to obtain an exemption from the liability to pay the excess. On appeal, it was argued that this was an attempt to induce the creditor to forgo payment of part under s2(1)(b). The Court of Appeal held that although this illustrated the overlap between s.2(1)(b) and s.2(1)(c), it did not make liability under s.2(1)(c) wrong.
Section 3 provides:
This section is intended to protect legitimate business concerns and applies where goods are supplied or a service is performed on the basis that payment will be made there and then. This includes a restaurant where the meal is supplied on the understanding that the bill will be paid before the diner leaves (CLRC, Thirteenth Report, para. 19) and the passenger in a taxi who runs off without paying the fare at the end of the journey, and the motorist who fills up with petrol at a garage and drives off when the attendant is distracted (CLRC, Thirteenth Report, para. 20). For these purposes, it must be proved that the defendant knew that payment on the spot was required or expected, and made off dishonestly with intent to avoid payment of the amount due. This section is intended to avoid any problems from the application of civil law principles. For example, the Sale of Goods Act determines when the ownership of goods passes. If the goods are being ascertained as part of the contract, title will pass when the goods are identified or measured. In a restaurant, this will probably occur when the food is cooked and plated. In a garage, it will occur when the fuel is measured as it passes through the pump into the car\'s tank. To be a theft, the goods must belong to another when the appropriation occurs. Similarly, if ownership passed before an intention to avoid payment was formed, running off might be a breach of civil law but it was not a crime. This became too common an event and so the law had to be clarified to enable convictions to be obtained despite civil law niceties.
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