Obtaining Property by Deception, Making off without payment

Extract 1 : Offences potentially faced by Xena
Extract 2 : Offences potentially faced by Dermot
Extract 3 : Offences potentially faced by Kelly

Offences potentially faced by Xena

Obtaining Property by Deception (OPD)
Xena might face a charge of OPD contrary to S.15 Theft Act 1968 which defines the offence as committed by one who "by any deception dishonestly obtains property belonging to another, with the intention of permanently depriving him of it".

Actus Reus (AR) and Mens Rea (MR)
Criminal offences are traditionally broken down into the AR and MR. The AR comprises the external elements of a crime including, inter alia, voluntary conduct, specified circumstances, and a result. The AR of OPD may be specified as obtaining, property, belonging to another, by deception.
The MR comprises the internal elements of a crime, usually including intention, and or recklessness. The MR of OPD may be specified as dishonesty, the intention of permanently depriving, and deception.

Burden of proof
It was established in R v Woolmington 1 that the prosecution in a criminal case must prove every element of the offence or the defendant must be acquitted. The standard to which the above elements must be proved is beyond reasonable doubt.

Are the AR elements proved against Xena?

Obtaining
As per S.15(2) Theft Act 1968, obtaining occurs where a person acquires "ownership, possession or control… (it) includes obtaining for another or enabling another to obtain or to retain". On the facts, Jorge "appointed (Zena) with immediate effect". It is assumed that Zena received payment in monies for her services. If she did, it follows that Zena fulfilled the "obtaining" element of the offence when she took up the post as general practitioner. It is important to note at this stage that there must be a causal link between the deception element of the offence, and the obtaining element - Xena must have obtained her monies by deception, which she did as we will see.

Property
Under S.4(1) Theft Act 1968 "property includes money and all other property, real or personal, including things in action and other intangible property". On the facts, we do not, in fact know whether or not Xena obtained monies for her position. It is likely she did, and if so, the property element of the offence is made out.

Belonging to Another (BTA)
Under S.5(1) Theft Act 1968 "property shall be regarded as belonging to any person having possession or control of it, or any proprietary right or interest". Prima facie, we can assume that any monies which may have been paid to Xena would have belonged to Jorge who owned the practice.
However, it is relevant at this stage to point out that as per R v Preddy 2 an electronic credit transfer between banks cannot count as BTA. Thus if Jorge paid Xena by CHAPS payment or a similar system, the BTA element would not be present. S.15(a) Theft Act 1968 which, where one "dishonestly obtains a money transfer for himself or another", makes Obtaining a Money Transfer by Deception (OMTD) an offence could be used in the alternative. Under S.15A(2) a transfer occurs when a debit is made to one account and a credit is made to another, and a credit results from the debit or a debit results from the credit. Under S.15A(3) there must be an amount of money involved. It is immaterial under S.15A(4) whether the amount credited equates to that debited, whether transfer is by cheque or any method, or whether there is a delay in the process.

Deception
Under S.15(4) Theft Act 1968 this embraces "deception by words or conduct as to fact or law, including deception as to present intentions of the person using deception or any other person". The defendant must know that the statement may be or is false but can be taken as true. On the facts, Xena "applied for a post… stating that she had taken her medical exams at University College and had worked for three years at a surgery in London" and that she supplied "references". It is further known that "Xena had never qualified as a doctor" and that the references "were forged".
Deception may be effected via words or conduct. Xena's "statement", whether oral or submitted in writing in an application form, was deception by words. She further deceived the practice's patients via her conduct posing as a medical practitioner. Merely giving the impression she was a doctor satisfies the deception element: in a decided case, wearing a uniform to which one was not entitled was sufficient.
The deception must be the cause of obtaining as aforementioned. In the unlikely event that Jorge was not influenced by Xena's statement or references, monies paid to Xena would not be obtained by deception. On the facts we know Xena's employment occurred because "Jorge was impressed by her references and appointed her".

Are the MR elements proved against Xena?

Dishonesty
In R v Ghosh it was established that a test must be applied by a jury to determine whether or not dishonesty has been committed. Two questions must be asked:

1. Was the act dishonest by contemporary standards?
2. Did the defendant know this?

On the facts, it is unequivocally dishonest by any standard of current thinking to obtain a job by false references. If however by Counsel's wiles it could be proved (balance of probabilities) on Xena's behalf that she did not know that her act was dishonest, this element may lie unproven. It is unlikely on the facts.
Intention of permanently depriving
This assumes its literal meaning as per S.6 Theft Act 1968, although the word "obtaining" is substituted for "appropriating". This element is unnecessary should Xena be charged under S.15A(1) instead of S.15.

Deception
This element is as described as above in AR. However, Xena must be deliberate (or subjectively reckless) in her commission. On the facts, it is highly likely that she is.

Conclusion
On balance, it is highly likely that Xena has committed OPD and that all the requisite elements for the offence are made out.

Defences
Xena is likely to use any, all, or a combination of mistake, necessity, or duress of circumstances in defence. It is highly unlikely she would succeed.

Offences potentially faced by Dermot

Obtaining Property by Deception (OPD)
Dermot is likely to face precisely the same offence as Xena above, although here the potentiality of being charged under S.15A(1) does not arise. In brief, the AR elements are probably satisfied: the property obtained was the computer which was obtained from Cecile who it belonged to. The deception comprised the lie when, on the facts, "Dermot told Cecile that he had been made redundant and could not pay until the following month" which was "untrue". The MR elements are also likely to be satisfied, again comprising dishonesty, intention to permanently deprive and deception, although Dermot's state of mind must needs be canvassed. On the facts, no payment after six months, combined with his lie indicates the elements' fulfilment.

Conclusion
As above.

Defences
As above.

Offences potentially faced by Kelly

Making Off without Payment (MOWP)
Kelly is likely to face an offence of MOWP contrary to S.3 Theft Act 1978 which is defined as committed by one who, "knowing that payment on the spot for goods supplied or services done is required or expected of him, dishonestly makes off without having paid as required or expected with intent to avoid payment".
This offence can only be made out in the event that Theft, OPD or Dishonestly Obtaining Services (DOS) can be charged. Note that Kelly will not be charged with either OPD or indeed Dishonestly Obtaining Services under S.1 Theft Act 1978 because she does not realise her lack of funds precedent to the meal, thus there is no dishonesty or deception. She will however be charged with theft, which does not require examination here.
The AR for MOWP is probably made out. Payment is typically expected in respect of the property and services provided at the time of provision (R v Aziz ) 3 . In a restaurant this is certainly the case. Making off occurs when the person goes beyond the spot where payment is required or expected, as per R v Hammond 4 . Without payment takes its prima facie meaning. All three elements are clearly satisfied on the facts: Kelly was "presented with the bill", "left the restaurant" and did so "without paying".
The MR is also probably made out. There must be an intention to make permanent default, as per R v Allen 5 . On the facts, Kelly "decided to sneak out without paying" and there is no indication she intended later payment. There must also be dishonesty which is a matter for the jury as per R v Ghosh 6 . Both elements must exist at the time of making off, when the persons knows that payment on the spot required or expected. In addition to Kelly's "sneak out" plan, the fact she "gestured as though pointing to money left on the table" further points to fulfilment of these MR elements.

Conclusion
As above, except in respect of MOWP.

Defences
As above.7

Woolmington v DPP [1935][^ Return]
R v Preddy, Slade & Dhillon [1996] A.C. 815, HL[^ Return]
R v Aziz [1993] Crim.L.R. 708, CA[^ Return]
R v Hammond [1983] Crim.L.R. 571, CA[^ Return]
R v Allen [1985] 1 A.C. 1029, HL[^ Return]
R v Ghosh [1982] Q.B. 1053, CA[^ Return]
Excluding footnotes, titles and quotations.[^ Return]

BIBLIOGRAPHY

CASES :

R v Aziz [1993] Crim.L.R. 708, CA

R v Allen [1985] 1 A.C. 1029, HL

R v Ghosh [1982] Q.B. 1053, CA

R v Hammond [1983] Crim.L.R. 571, CA

R v Preddy, Slade & Dhillon [1996] A.C. 815, HL
Woolmington v DPP [1935]

UK LEGISLATION

Theft Act 1968
Theft Act 1978

Extract 1 : Offences potentially faced by Xena
Extract 2 : Offences potentially faced by Dermot
Extract 3 : Offences potentially faced by Kelly