Fraud

The Fraud Act 2006 abolishes all the deception offences in the Theft Acts 1968 and 1978. These included obtaining property by
deception, obtaining services by deception and evading a debt by deception. The main reason for the change was that the previous
offences had a high degree of overlap, were unduly technical, and did not cover some important forms of fraudulent wrongdoing. For
example, communicating false information by computer as a ‘phishing’ ploy designed to defraud the recipient could not ground a
deception offence, because all deception offences required D to have made a false representation which was believed and acted on by a
specific person.
This causal effect had to be proved by the prosecution. So, also, a car seller who made false representations to a purchaser who
subsequently bought the car would not be guilty of fraud unless the prosecution could prove beyond reasonable doubt that, but for these
representations, the purchase would not have been made. This clearly makes the prosecution’s job difficult, and probably too difficult.
The Fraud Act 2006 replaces the deception offence with one basic fraud offence which can be committed in three ways. These are by:
false representation
failure to disclose information
abuse of position.

The main change renders the wrongdoing the intentions of the wrongdoer rather than the reactions of the victim. David Ormerod
(Smith and Hogan’s criminal law (Oxford: Oxford University Press, 2015)) complains that, in effect, the new offence criminalises ‘lying’.
It is intended to capture wrongdoing such as that of computer ‘phishers’, who make their money out of duping the one in a million
people who happen to believe them, which was not possible under the old law. The problem is that it also in theory captures many less
heinous forms of behaviour which are part and parcel of everyday commercial life. Sellers are expected to tempt us with ‘white lies’,
are they not? The maximum sentence for fraud is 10 years’ imprisonment.

12.3.1 Section 2: fraud by false representation

The essence of this form of fraud is some form of deception. Section 2 of the Fraud Act 2006 reads as follows:
(1) A person is in breach of this section if he –(a) dishonestly makes a false representation, and
(b) intends, by making the representation –

(i) to make a gain for himself or another, or

(ii) to cause loss to another or to expose another to a risk of loss.
(2) A representation is false if –
(a) it is untrue or misleading, and
(b) the person making it knows that it is, or might be, untrue or misleading.

(3) ‘Representation’ means any representation as to fact or law, including a representation as to the state of mind of –
(a) the person making the representation, or
(b) any other person.

(4) A representation may be express or implied.

(5) For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any
system or device designed to receive, convey or respond to communications (with or without human intervention).

Elements of the offence

The actus reus requires proof that D made a false representation. The mens rea requires proof that D:
knew the representation was or might be false, and
acted intending to make a gain or cause a loss, and
acted dishonestly.

Actus reus: fraud

The conduct element in fraud by false representation is simple. It requires proof that D made a representation and that representation was
false. There is no need to prove that V acted to their detriment in reliance on the representation. Indeed, there is no need for it to be
communicated to V so long as it is made. So the phisher commits the offence as soon as they type out their false statement: the
prosecution does not have to wait until the email is transmitted.
Meaning of representation
Representation is not defined in the Fraud Act 2006 except to say:

(3) ‘Representation’ means any representation as to fact or law, including a representation as to the state of mind of –
(a) the person making the representation, or
(b) any other person.

(4) A representation may be express or implied.

The simplest meaning of representation is ‘stating something’, ‘pretending something’, ‘professing something’ or ‘creating an
impression’. So a seller who tells a buyer that the car he is selling is in good condition makes a ‘representation’ that it is in good
condition. Similarly, a buyer who tells the seller that her credit is good makes a ‘representation’ that her credit is good. A representation
can be made without words. It can be made by conduct; for example, painting over rust damage on a car, thus giving the impression it is
in better condition than it is. It can also be implied.

Illustration 12.3
Assume A wishes to buy a car on credit and wishes to influence the decision to advance her credit. The following words or actions
will be express representations.
a. My credit is good (representation of fact).
b. I bank with Coutts and Co (a bank used largely by the rich and powerful) (one express and one implied representation of fact
– the implied representation is creating an impression that she is rich and powerful).
c. I have just won £1 million on the lottery (representation of fact – she is creating an impression that she is rich).
d. I will pay you back next week (representation as to state of mind – she is creating an impression that she intends to pay the
money back).

Activity 12.19
Read Wilson, Section 15.1.C.1. ‘Fraud by false representation’, Section (a) ‘Actus reus’. Look at the following scenarios and state
what representations are being made and identify which, if any, are false.
a. A, a poor man, hires a Rolls Royce for the day.
b. A, a car dealer, turns back the odometer reading on a car prior to selling it.
c. A pays for chips in a casino with a cheque, having lost the bank’s authority to use it.

Note, for exam purposes the most important abilities you should be able to display in the context of fraud are:
a. being able to identify the representation that you think is the basis of the fraud charge, and
b. being able to explain why in relation to that representation it is false.

It will usually help to ask yourself ‘What false impression or statement is D making for the purpose of defrauding V?’
Can one make a representation by saying or doing nothing?
As a general rule, the answer is no since making a representation means to state something or do something.

Illustration 12.4
A sells B a car, the odometer of which he knows carries a false reading.
A cannot be guilty of fraud as he has made no false representation as to the mileage. It would be different if, upon being asked, A
confirmed the reading or said that it was genuine (express representation of fact) or that he believed it to be genuine (express
representation as to his state of mind).

Activity 12.20
Read Wilson, Section 15.1.C.1. ‘Fraud by false representation’, Section (a) ‘Actus reus’ and answer the following questions.
a. A is selling her car. It is in bad condition. To ensure that B, a potential buyer, does not realise this, she tells B she will only
show him the car at 9pm. B inspects the car and does not spot the defects. Is A guilty of fraud?
b. Would it make any difference to the answer to the above question if A had said, untruthfully, ‘You will have to come at 9pm as
I do not get back from work until then’?

In two situations silence may constitute a false representation. In both cases the silence creates a false impression.

Where there exists a duty of disclosure (also covered by s.3)

Illustration 12.5
Adam performs a surgical operation on Eve at Green Wing Hospital. He does not tell the hospital that Eve is a private patient
and, as a result, the hospital, assuming Eve is a national health service (free) patient, does not invoice him for the cost of the
operation (Firth (1990) 91 Cr App R 217).
By not telling the hospital, when he is under a duty of disclosure, Adam is creating a false impression that Eve is a national health service
(NHS) patient rather than the private patient she actually is. Because of his duty of disclosure, the hospital is entitled to assume that all
patients operated on are NHS patients unless Adam tells them otherwise.
Where the circumstances giving rise to a representation change so that the original representation no longer
accurately describes the true state of affairs
Illustration 12.6
a. Adam tells Eve truthfully that the odometer reading on the car he is selling is accurate. Prior to concluding the sale he
discovers that the odometer has, in fact, been tampered with. He does not communicate this to Eve.
b. Adam truthfully tells his local authority that Eve, his mother, is bedridden and so in need of a downstairs bathroom. On the
strength of this representation the local authority agrees to install a new bathroom. Before starting the work Eve dies. Adam fails
to tell the local authority of her death (the facts of Rai [2000] 1 Cr App R 242).

In both cases, Adam’s silence is impliedly telling the other party that nothing relevant to their agreement has changed since the first
representation was made. Put another way, in both cases the statement that Adam has made which was once true is now false. The
change in circumstances has made it so.
Representations and machines
Under the old law of the Theft Acts, it was also not possible to make representation to a machine: the essence of the deception offences
was the tricking of a human mind. The Fraud Act 2006 s.2(5) now makes it possible to commit fraud via a machine, since a
representation is regarded as having been made:
if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications
(with or without human intervention).
This would include putting false information on an online tax or insurance form, or computer ‘phishing’ as in the case of those who place
viral sob stories on the internet which are intended to cause naive recipients to transfer money to the phisher. In this latter case the
representation is made as soon as the representation is typed on to the phisher’s machine, thus relieving the prosecution from having to
prove that anyone read it.
A person who puts a foreign coin in a slot machine, such as a car park ticket machine or chocolate machine, also commits fraud, whether
or not the ruse is successful, not because of subs.2(5) but because by putting the coin in they are making a representation in the usual
way. ‘This is a £1 coin’, ‘this is a $2 coin’, as the case may be. Under the old law this was not a fraud because it required a human mind
to be deceived. As has been explained the fraud is now complete upon the making of a false representation. It does not have to be
effective or even communicated.

Activity 12.21
Read Wilson, Section 15.1.C.1. ‘Fraud by false representation’, Section (a) ‘Actus reus’ and answer the following question.
Adam, intending to sell his car, puts an advertisement on the windscreen while it is in his garage. It says that the car has been
driven by one careful female owner. In fact it has been driven by him. Has Adam committed the actus reus of fraud at this stage?

The representation must be false

By subs.2(2) of the Fraud Act 2006, a representation is false if (a) it is untrue or misleading, and (b) the person making it knows that it is,
or might be, untrue or misleading. This is a very inclusive definition. It includes the situation of someone who believes what they say to
be true but knows it might not be true or knows it might be misleading. The coverage of the act is so wide it covers the kind of cases of
(sharp) practice in which most tradespersons have traditionally engaged to make a living. It criminalises ‘mere puffs’. If Heineken
describes its lager as ‘probably the best lager in the world’, is it acting fraudulently when all purchasers understand that the claim is not
to be taken too seriously and do not buy their lager on the strength of it?

Activity 12.22
Read Wilson, Section 15.1.C.1 ‘Fraud by false representation’, Section (a) ‘Actus reus’ and answer the following questions.
a. Adam owns a BMW in which he has driven 111,000 miles since he bought it a year ago. The odometer, having ‘gone round the
clock’, shows 11,000 miles. It is worth £15,000 as it stands, but £30,000 if the mileage truly was 11,000. He puts a notice on his car
windscreen in the following terms: ‘BMW for sale. One year old. One careful owner. £30,000’. Has Adam made a false
representation? If so, what is it?
b. Claire is an art dealer. She describes a painting in the sales particulars as an ‘early Constable’. The painting, as she knows, is
painted not by John Constable, but by his son, John Charles Constable, a lesser artist. Has Claire made a false representation? If
so, what is it?
c. Jane is an art dealer. She describes a painting in the sales particulars as an ‘early Rembrandt’. She believes it to be a
Rembrandt, and indeed bought it as such, but knows that in the case of this particular painter precise attribution is difficult due
to the number of workshop versions of Rembrandt’s work on the market. In fact it is not a Rembrandt. Has Jane made a false
representation? If so, what is it?

Note: Remember what was said earlier about the importance of being able to identify the representation and what is false about
it. If you are having difficulty with any of these three cases you need to revisit the textbook.
Mens rea: fraud
The core mens rea element for fraud contrary to ss.2, 3 and 4 of the Fraud Act 2006 is the defendant’s intention by making the
representation, to make a gain for themself or another, or to cause loss to another or to expose another to a risk of loss. Intention in this
context, in line with its meaning in theft and unlike its meaning elsewhere, means purpose or knowledge of virtual certainty. In theft,
such knowledge is intention as a matter of law, rather than as a matter of evidence (see Section 5.3.2 ‘Murder and manslaughter: what
does “intention” mean?’). If D knows that their representation will cause loss to V or expose V to the risk of loss, D intends that
consequence. Gain and loss are defined by s.5(2) and (3) of the act:

(2) ‘Gain’ and ‘loss’ –

(a) extend only to gain or loss in money or other property;
(b) include any such gain or loss whether temporary or permanent;

and ‘property’ means any property whether real or personal (including things in action and other intangible property).
(3) Gain’ includes a gain by keeping what one has, as well as a gain by getting what one does not have.

Activity 12.23
Read Wilson, Section 15.1.C.1 ‘Fraud by false representation’, Section (b) ‘Mens rea’ and decide, giving reasons, whether the
following representations are capable of resulting in a conviction of fraud.
a. Adam promises to marry Eve in order to encourage her to agree to sexual intercourse.
b. Adam tells people in a queue for a concert that he has a bad back in order to gain a better place in the queue.
c. Eve misrepresents her golf handicap in order to be permitted to join a top club.

Note: The gain or loss can be temporary or permanent, so making a misrepresentation to induce a loan of a car or money, or to gain time
to pay a debt would be covered. In this latter example, fraud is constituted since ‘gain’ includes a gain by keeping what one has, as well
as a gain by getting what one does not have. ‘Loss’ includes a loss by not getting what one might get, as well as a loss by parting with
what one has.
There are four possible cases of this mens rea requirement.
1. The intention to make a gain for oneself by false representation (this will be the most usual case).
2. The intention to make a gain for someone else, for example giving a false reference to secure someone a job or a loan.
3. The intention to cause a loss to another. Usually this will go hand-in-hand with an intention to make a gain, either for oneself or for
another, but it will include cases where the representor’s purpose is purely destructive. Here is an example.

Illustration 12.7
Janice, a committed vegetarian, places an advertisement in the Daily Globe newspaper, implying that the hotdogs of
HotdiggetyDog hotdog manufacturers actually contain dog meat. The representation, which is false, is made in an attempt to
damage sales of HotdiggetyDog meat products.
This is fraud, because of Janice’s intention to cause financial damage to HotdiggetyDog.
1. The intention not to cause a loss to the representee but to expose them to the risk of loss (this is more unusual).
 Illustration 12.8
a. A, a mortgage broker, puts false earnings particulars on clients’ mortgage forms to induce the lender to lend to her clients.
b. B, a financial adviser, advises his client, C to invest a large amount of money in X company telling him it is a good investment.
He knows that the investment is risky but hopes that the investment pays off and will advance his reputation as an adviser.

A is guilty of fraud. Her liability turns on the fact that although she does not intend to cause the lender any loss, she does intend to
expose the lender to the risk of loss, namely the risk that the borrowers may default (Allsop (1977) 64 Cr App R 29). B is also guilty of
fraud for the same reason.
Dishonesty
The final mens rea element is dishonesty. Dishonesty, in this context, is Ivey dishonesty. There is no equivalent to s.2 of the Theft Act
1968 in the Fraud Act 2006. This means that a person who makes a false representation in order to gain what they believe they are in law
entitled to is not automatically to be acquitted: it will be a matter for the jury. This was made clear in the pre-2006 Act case of Woolven
(1983) 77 Cr App R 231 and one must assume the position is unaltered.

12.3.2 Fraud by failing to disclose information

This provision is probably unnecessary since a failure to disclose information which one has a duty to disclose counts as a representation
for the purpose of s.2 of the Fraud Act 2006. Section 3 was included in order to simplify the proof of guilt. Section 3 allows a conviction
simply upon proof of the duty to disclose and the failure to do so with the relevant intent. The important aspect of s.3 is the requirement
that the defendant be under a legal duty of disclosure: a moral duty is not enough. The concept of ‘legal duty’ is explained in the Law
Commission’s Report on Fraud, which said:
Such a duty may derive from statute (such as the provisions governing company prospectuses), from the fact that the transaction in question
is one of the utmost good faith (such as a contract of insurance), from the express or implied terms of a contract, from the custom of a
particular trade or market, or from the existence of a fiduciary relationship between the parties (such as that of agent and principal).
So an art dealer would not commit the offence if they bought a painting at a car boot sale knowing that the painting was worth a thousand
times the asking price, as they have only a moral duty of disclosure.
Mens rea: failing to disclose information
The mens rea for s.3 of the Fraud Act is as for s.2. There is no requirement that the defendant be aware that they are under a legal duty of
disclosure, although evidence of lack of awareness will, no doubt, influence the jury’s assessment of dishonesty. Section 3 states:

(1) A person is in breach of this section if he –

(a) dishonestly fails to disclose to another person information which he is under a legal duty to disclose, and
(b) intends, by failing to disclose the information—
(i) to make a gain for himself or another, or
(ii) to cause loss to another or to expose another to a risk of loss.
The mens rea for s.4 is as for s.2. There is no requirement that the defendant be aware that they are under a duty to safeguard the other’s
financial interests, although evidence of lack of awareness will, no doubt, influence the jury’s assessment of dishonesty.

Fraud by abuse of position

(1) A person is in breach of this section if he –
(a) occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person,
(b) dishonestly abuses that position, and
(c) intends, by means of the abuse of that position –
(i) to make a gain for himself or another, or
(ii) to cause loss to another or to expose another to a risk of loss.
(2) A person may be regarded as having abused his position even though his conduct consisted of an omission rather than an act.
The Law Commission described the type of relationships intended to be covered by fraud by abuse of position as follows:
 The necessary relationship will be present between trustee and beneficiary, director and company, professional person and client, agent and
principal, employee and employer, or between partners. It may arise otherwise, for example within a family, or in the context of voluntary work,
or in any context where the parties are not at arm’s length. In nearly all cases where it arises, it will be recognised by the civil law as importing
fiduciary duties, and any relationship that is so recognised will suffice. We see no reason, however, why the existence of such duties should be
essential. (para.7.3)

Whether a person occupies a position in which they are expected to safeguard the interests of another is a question of law for the judge.
Usually this will be because the relationship, as in the case of trustee/beneficiary, contains, or is constituted by, explicit duties of acting
in the other’s interests or not acting against those interests. It may, however, simply be understood as where A permits B to use her
apartment while she is on holiday. It goes without saying that B would abuse his licence if he were to use A’s apartment to deal in drugs
or sell weapons from.
Note: Students, when answering problem questions, often ignore s.2 and go straight to s.3. This is bad practice and illustrates the
importance of identifying the (false) representation. You should generally only use s.3 as a default option, that is, where, having
concluded that s.2 is or is not available and why, you go on to consider the alternative possibility of liability under s.3. All of the
examples given in the illustrations and activities in this section are, first and foremost, cases of fraud by false representation (s.2).
Consider, for example, Activities 12.12–12.20. A student who fails to analyse each of these activities by reference to s.2, and who simply
talks about whether Adam, Clare and Jane are under a duty of disclosure and so liable under s.3 for not making disclosure, misses the
whole point of these questions and would not do very well! So, what answer did you give to in relation to Adam and his BMW?

12.3.3 Obtaining services dishonestly

Section 11 of the Fraud Act 2006 replaces s.2 of the Theft Act 1978. It covers any case where services, for which payment would be
expected, are obtained as a result of dishonest conduct. By s.11:
(1) A person is guilty of an offence under this section if he obtains services for himself or another –
(a) by a dishonest act, and
(b) in breach of subsection (2).

The new offence differs from the old one by constituting the conduct element as any form of dishonest conduct rather than the deception
required by s.2.
Actus reus: obtaining services dishonestly
Under the previous law it was an offence only where there was a deception. Now any dishonest act will be covered. The difference in
coverage can be seen in the following example.

Illustration 12.9
D parks her car in a pay-and-display car park. She does not pay for a ticket, hoping that she will return before a ticket inspector
arrives.
Under the Theft Act 1978 this would not be an offence under s.2 as no false representation has been made. It is, however, an offence
under s.11 because D has obtained a service and her conduct is dishonest.

Illustration 12.10
Other cases of obtaining services dishonestly include the following.
a. Entering a cinema without paying.
b. Having a haircut without paying.
c. Obtaining chargeable data or software (e.g. music downloads) over the internet without paying.
d. Ordering a meal in a restaurant knowing you have no means to pay (also fraud by false representation).
e. Attaching a decoder to a TV to access chargeable satellite services without paying.
f. Using the services of a members’ club without paying and/or without being a member.

Section 11 also differs from ss.2, 3 and 4 of the Fraud Act 2006 in the actus reus requirement that the service be actually obtained. In this
respect it is similar to the offence it replaced. However, where the relevant services are obtained as a result of a false representation,
rather than by some other form of dishonest act, it will be possible to proceed under either section.

Illustration 12.11
a. Adam parks his car in a pay and display car park. Eve, who is about to leave the car park, gives Adam her unexpired ticket.
Adam places the ticket on his windscreen.

Adam is guilty under s.11. He is also guilty of fraud by false representation. By putting the ticket on his windscreen he is impliedly
representing that he has paid for it. The gain he makes is keeping the fee due.
 b. Mary untruthfully tells the sales assistant in a cinema that she is underage so as to be allowed in at a lower price.

Since Mary is not a minor, she is guilty of fraud by false representation. The gain she intends to make is the money she is enabled to
keep in her pocket by her false representation as to her age. She is also guilty of obtaining services dishonestly.
What conduct does ‘obtaining services’ cover?
Subsection 11(2) clarifies what is mean by ‘obtaining services’. As with the previous offence, it refers to a narrower range of conduct
than you might think.

(2) A person obtains services in breach of this subsection if –

(a) they are made available on the basis that payment has been, is being or will be made for or in respect of them,
(b) he obtains them without any payment having been made for or in respect of them or without payment having been made in full, and
(c) when he obtains them, he knows –

(i) that they are being made available on the basis described in paragraph (a), or
(ii) that they might be,
but intends that payment will not be made, or will not be made in full.
Subsection 11(2) makes it clear that only services made available on the basis that payment has been, is being or will be made for or in
respect of them are covered.

Activity 12.24
How good are your statutory interpretation skills? Read s.11(2) and consider whether the following situations are examples of
obtaining services dishonestly.
a. D, in order to avoid paying a charge at his local swimming pool, sneaks into a school’s pool, use of which is restricted to school
pupils on a non fee-paying basis. Is this an offence under the Fraud Act 2006?
b. Adam and Eve pretend to be Muslims in order to get their child into a fee-paying school, restricted to pupils of that religion.
They are, in fact, Christians.
c. D, in order to avoid paying a full charge at her local swimming pool, pretends to be a pensioner.
d. D, in order to see an adult film, tells the assistant that he is 18 when he is only 16.

Are you happy with your answers? Now look at Wilson, Section 15.2 ‘Obtaining services dishonestly’ to see if you were right.
Mens rea: obtaining services dishonestly
The offence requires Ivey dishonesty, knowledge that payment is required or might be, and an intention not to pay for the service or not
to pay in full. Section 2 of the Theft Act 1968 does not apply.

12.3.4 Making off without payment

Section 3 of the Theft Act 1978, which is still in force, 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.
This offence is designed to enable a prosecution where, although the defendant has acted dishonestly, it may be difficult to prove or
prevent fraud or theft. It is easier to prove that a driver has dishonestly made off without paying for their petrol than to prove that they
had an intention not to pay when first filling up the car – which would ground a charge of theft or fraud.

Activity 12.25
At examination time you should be wary of putting undue emphasis on this offence in cases where theft, fraud or obtaining
services dishonestly are also present. This offence is best thought of as an offence of last resort, for use where proving another
offence may be difficult. For example, read Wilson, Section 15.2.A ‘Actus reus’ and answer the following question.
While out shopping, Yuri sees a shirt priced £50. He swaps the price tag for one marked £30 and pays the lower price. Yuri buys
a DVD and pays for it with a £10 note. The shop assistant mistakenly gives him change for a £20 note. Yuri realises this once he is
outside the shop but keeps the money. What offences, if any, have been committed?
In this question most of the marks would be awarded for discussion of theft and fraud in relation to the swapping of the price
tags. Can you see why it is a case of both fraud and theft? Read Wilson, Sections 14.2.A ‘Actus reus’ and 15.1.C ‘Fraud’. In
relation to the mistake question your discussion should again concentrate on theft. Only then consider whether there is a making
off (see Wilson, Sections 15.3.A.1 ‘Making off’ and 15.3.A.3 ‘Without having paid as required or expected’). Has Yuri made off
without paying as required or expected in the light of the mistake made?
No feedback provided.
Actus reus: making off without payment
A person can be liable only if they have made off from the spot where payment was due. Liability turns therefore on whether payment
is due and, if so, where that spot is and whether D has departed from it. In McDavitt [1981] Crim LR 843, D, following an argument
about his bill, made for the restaurant door having refused to pay for his meal. He was stopped and the police were called. D admitted
having intended to leave without paying. A submission of no case to answer was accepted on a charge of making off without payment.
The Court of Appeal ruled that ‘making off’ means making off from the spot where payment is required or expected. In this case the spot
was the restaurant. The jury should have been directed that it could not convict of this offence but it was open to them to convict of an
attempt.
Compare Moberly v Alsop [1992] COD 190, in which D travelled on a train without paying for a ticket. She was apprehended, having
gone through the ticket barrier, and charged with making off without paying. She argued that she had not made off without paying
because the spot for paying was the ticket office and she had not made off from there. Indeed, she had never been there! This argument
was rejected.

Activity 12.26
Why was the argument in Moberly v Alsop rejected? When you have thought about the answer, read Wilson, Section 15.3.A.1
‘Making off’, Section (a) ‘From the spot where payment is due or expected’ to see if your reasoning was correct.
A person commits the offence only if, when making off, payment on the spot is required or expected. If, therefore, the expectation is that
D will be ‘billed’ for the goods or services they are not guilty, even if it was their intention when making off that they would not pay. So
also D will not commit the offence if there has been a breach of contract or if the contract was otherwise unenforceable. It was stated in
R v Wilkinson [2018] EWCA Crim 2154 that a taxi fare cannot be lawfully due unless and until the driver has taken the passenger to the
requested destination, or to the point where the passenger asks to be let out of the taxi, thereby varying the destination. As a result, the
offence was not committed where, following a dispute between a passenger and driver, the driver told the passenger that, if she was
going to complain, she could get out of the taxi immediately at a point short of her destination, which offer she refused.
Making off takes no particular form. A person can make off by stealth, or brazenly without any form of dissimulation. A question does,
however, surround the status of permitted departures, as when a customer dupes a creditor into allowing them to depart by pretending to
have left their wallet at home. Is this a making off? In Vincent [2001] EWCA Crim 295, the Court of Appeal concluded that it was not,
since the effect of the deception is to pre-empt any expectation that payment would be made on the spot. Fraud could have been charged,
but only if it could be proved that D had at some stage decided not to pay before receiving any goods or services. Under these
circumstances D would in this case, by staying on in the hotel, have been impliedly representing that he intended to pay for the goods or
services when he did not (DPP v Ray [1974] AC 370).

Activity 12.27
Read Wilson, Section 15.3.A ‘Actus reus’ for a discussion of this problem.
Mens rea: making off without payment
The mens rea for s.3 of the Fraud Act 2006 is dishonesty and an intention to avoid payment of the amount due. Significantly, s.3 does
not state that the intention must be to make permanent default. The commonsense view is this should not be the case because having to
prove D intended to make permanent default will make the prosecution’s burden of proof rather difficult. It is easy to claim that one
intended to pay later and difficult to disprove this beyond reasonable doubt. Nevertheless in Allen [1985] AC 1029, the House of Lords
held that the offence was constituted only upon proof of an intention permanently to avoid paying the amount due. So a hotel customer
who checked out without paying did not commit the offence if he was temporarily financially embarrassed and intended to pay later.

Activity 12.28
In Lawrence [1972] AC 626, the House of Lords refused to read the words ‘without the transferor’s consent’ into the definition of
appropriation for the purpose of theft, saying if Parliament had wanted this it would have said so. In the case of Allen, the House
of Lords did read into the words of the provision the word ‘permanently’ after ‘intention’. In so doing it has rendered the offence
‘toothless’. Is this a case of double standards and do you agree with the decision in Allen?
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