England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM READING CROWN COURT
HH Judge Elly

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th December 2003

Lord Justice May:

Introduction

1. On 13^th March 2003 in the Crown Court at Reading, before HH Judge Elly and a jury, the appellant was convicted after a nine day trial on 9 out of 10 counts on an indictment. He was sentenced to 21 months imprisonment on each count concurrent. The jury did not reach agreement on count 8. They were discharged from giving a verdict on this count.
2. On counts 1, 2, 3 and 5, the appellant was charged with obtaining services by deception contrary to section 1(1) of the Theft Act 1978. On count 4, he was charged with attempting to obtain services by deception. On counts 6, 7, 9 and 10, he was charged with obtaining or attempting to obtain property by deception. He appeals against conviction on counts 1 to 5 inclusive by leave of Holland J but no longer pursues his appeal against his conviction on count 3. There is no appeal against conviction or sentence on the remaining counts on which he was convicted. The appeal against conviction on the first five counts does not, therefore, affect his sentence. It may affect orders made in confiscation proceedings.
3. The case against the appellant was characterised by the prosecution as identity theft. In simple terms, he falsely pretended to be Andrew Cole, John Groves or Andrew Narramore to deceive or attempt to deceive banks into providing him with banking services, credit card companies into providing him with credit cards, and retailers into providing him with goods. He gave evidence denying the charges and explaining the evidence called against him. The jury obviously disbelieved him comprehensively.

Legislation

4. Section 1 of the Theft Act 1978 provides:

"(1) A person who by any deception dishonestly obtains services from another shall be guilty of an offence.

(2) It is an obtaining of services where the other is induced to confer a benefit by doing some act, or causing or permitting some act to be done, on the understanding that the benefit has been or will be paid for.

(3) Without prejudice to the generality of sub-section (2) above, it is an obtaining of services where the other is induced to make a loan, or to cause or permit a loan to be made, on the understanding that any payment (whether by way of interest or otherwise) will be or has been made in respect of the loan."

Sub-section (3) was added by amendment by section 4(1) of the Theft (Amendment) Act 1996 in relation to things done on or after 18^th December 1996. All the events centrally relevant to the appellant's prosecution occurred after that date.

5. Section 1 of the 1978 Act is one of several statutory provisions relating to various kinds of deception. Other related provisions are section 15(1) of the Theft Act 1968 (obtaining property by deception); section 15A of the 1968 Act (obtaining a money transfer by deception); section 16(2)(b) of the 1968 Act (obtaining a pecuniary advantage by deception); and section 20(2) of the 1968 Act (dishonestly procuring the execution of a valuable security). Section 15A of the 1968 Act was inserted by section 1(1) of the Theft (Amendment) Act 1996 to fill the lacuna identified in R v Preddy [1996] AC 815. Section 1(3) of the 1978 Act was inserted to reverse the decision of this court in R v Halai [1983] Crim LR 624.

The Facts

6. Counts 1 and 2 concerned the dishonest operation of bank accounts by the appellant over extended periods specified in the two counts of the indictment. It was not established that the appellant opened the account which was the subject of count 1. He may well not have opened it and the jury certainly could not have been sure that he did. It was not positively established that it was the appellant who opened the bank account which was the subject of count 2. He may well have done so, and it is possible that the jury were sure about this. For each of these counts, there was no direct evidence of an agreement that the banks would make charges.
7. In counts 4 and 5, the appellant was charged with dishonestly attempting to obtain the use of a bank account from Barclays Bank (count 4) and with dishonestly obtaining the use of a shop account from Royscot Financial Services Limited (count 5), each on particular days. Mr Cousens, for the appellant, accepts that each of these could constitute the obtaining of services or attempting to do so, but he submits that there was no evidence of an understanding or agreement that the benefit had been or would be paid for.
8. For count 1, a bank account was opened with the Co-operative Bank on 2^nd October 1996 in the name of Andrew Cole of 120 Linden Road, Shinfield, Reading. The account remained dormant until 2^nd July 1997 and thereafter for a period was used normally. A loan of £1000 was granted on 18^th March 1998. In February 2000, the account had a small credit balance. A further loan of £7000 was granted in August 2000, of which £5000 was withdrawn on the following day. A further £1500 was withdrawn three days later. The account became overdrawn by some £6500 and the £7000 loan was still outstanding. A further £3200 was owed on an associated credit card. The total amount owing was £16,781.85.
9. Miss Wiseman, a deputy manager of the bank, gave identification evidence with reference to a video in which she recognised a man she knew as Andrew Cole whom she linked with transactions on this account in August 2000. It was the prosecution case that the man in the video was the appellant. His fingerprints were found on four of the cheques which went through the account in August 2000.
10. Miss Wiseman said that there was no charge for opening the account, although she said that banks may charge for operating an account. The statements for this account did not show any charge for running the account before 31^st August 2000, when there was a payment of £210 in respect of "commission". There was no clear evidence of what this related to.
11. The particulars of the offence in count 1 alleged dishonestly obtaining services from the Co-operative Bank by deception "on a day between the 2^nd day of October 1996 and the 8^th day of September 2000". As we have said, the evidence did not establish that it was the appellant who opened the account. The evidence against him concentrated on August 2000, the time when the £7000 loan was made and largely withdrawn, and when his fingerprints were found on cheques. The case against him was that he dishonestly induced the bank to allow him to operate the account and to make the loans by falsely pretending to be Andrew Cole.
12. The particulars for count 2 alleged that the appellant dishonestly obtained services from The Woolwich plc by deception "on a day between the 26^th day of October 2001 and the 10^th day of December 2001". Records from the bank showed that an account was opened in the name of Andrew Narramore of 120 Linden Road on 26^th October 2001. It was used on 42 occasions between the dates alleged and became overdrawn. There was evidence linking the appellant with the name Andrew Narramore and with a Woolwich bank account. The real Andrew Narramore gave evidence that he had no knowledge of this Woolwich account. He had never had a Woolwich cheque account and he had never seen the cheque books referred to. He had not lived at Linden Road during 2001. He was challenged about this in cross-examination. The jury must have believed his evidence. It was contended that there was no direct evidence that it was the appellant who opened this account, but there was a strong inference that it was the appellant. There was no evidence to show whether, and if so on what basis, the bank might charge the account holder for operating the account.
13. The facts on count 4 were as follows. Andrew Bryant, who was employed at the Reading branch of Barclays Bank, gave evidence that on 21^st November 2001 a man giving his name as Andrew Narramore of 120 Linden Road, Reading, sought to open an account at the bank. He produced a BT telephone account and a driving licence. The photograph on the driving licence did not resemble the man. Mr Bryant queried the document. The man then received a call on his mobile telephone and left the bank. Mr Bryant identified the appellant at an identification parade as the man who tried to open the account.
14. As to count 5, on 6^th January 2001, Royscot Financial Services, a subsidiary of the Royal Bank of Scotland, received an application for a store credit card in the name of John Groves, of 10 Grovelands Place, Reading. The applicant stated that he owned the property and that he was employed by Kennet Cruises of Reading. He produced a credit card by way of verification. A First Sport Style card was issued. It was used on 51 occasions in January 2001 for goods totalling £2281.86. This exceeded the credit limit for the card. Kennet Cruises did not employ a person called Groves. John Groves gave uncontested evidence that he had rented a flat at 10 Grovelands Place in June 1995, but that he was not living there in January 2001. He had never owned a Style card. There was evidence connecting the appellant with 10 Grovelands Place and video evidence which the prosecution said showed the appellant in a branch of Debenhams on days when till receipts showed that the card had been used there. There was evidence that interest would be chargeable if payment was not been made during the interest free period. The Terms and Conditions upon which the card was issued provided that, if the cardholder repaid the whole outstanding balance on the account not later than 25 days after the statement date, no interest would be charged on transactions excluding cash advances or cheques appearing in the statement.

Submissions and Rulings

15. At the start of the trial, it was submitted on behalf of the appellant that counts 1 and 2 were duplicitous. The judge did not accede to that submission. He said that the charges encompassed the whole operation of the accounts. It was for the jury to decide whether they had been operated dishonestly. If they came to that conclusion, he would have to deal with the question whether the account was opened and operated dishonestly throughout or whether it was only operated dishonestly from a particular date. That matter might have some bearing on sentence. He did not consider that the counts were duplicitous as they stood.
16. There was a defence submission at the close of the prosecution case that counts 1 to 5 should be withdrawn from the jury. The judge ruled, correctly in our view, that sub-section (2) of section 1 of the 1978 Act qualified sub-section (1) and was not merely illustrative of it. Accordingly, the section only applied where there was a sufficient understanding that the benefit conferred had been or would be paid for. He correctly left count 3 to the jury and, as we have said, there is no appeal on that count. For the other four counts, there was either positive evidence that no fee was paid or a lack of evidence that any fee was due in respect of the opening of the accounts. He ruled that the obtaining of services was capable of being a continuing offence and that the operation of the accounts in counts 1 and 2 amounted to a continuous obtaining of services. He ruled that there was no doubt that those services would have to be paid for. There was clear evidence that unauthorised credit was obtained from the bank and various bank statements showed charges being added. As to counts 4 and 5, he found that the agreement was to obtain the use of the bank account, not just the opening of the bank account. For that operation fees were payable if the account was operated dishonestly by cheques being drawn which there were not funds to meet. The judge accordingly rejected the defence submission.

Summing up

17. The judge directed the jury on these matters generally in accordance with his rulings. He said that the jury had to be sure that the defendant obtained services and that the services he obtained would "normally be expected to be paid for or charged for by the provider." He said that drawing cheques or using a credit card was just as much a service as the actual opening of an account. "But, whatever service is being used, it must be one for which a charge is ordinarily made."
18. As to count 1, the judge directed the jury that they should consider whether at any stage during the dates alleged in the charge the defendant used the bank account "and that the service which was being provided by the Co-op was one which would normally be charged for." It did not matter whether the appellant used the account during the whole of the period, provided that he was using it at some point within the dates. The judge then gave the jury a correct direction, under the authority of R v Kevin Brown [1984] 79 Cr. App. R. 115, to the effect that the jury must be agreed as to when the account was used. He then said that the jury had to be satisfied:

"… that the bank would charge for their service; whatever use was made of the bank account, that service would be charged for. As you know, the evidence is that opening a bank account, simply opening it, is not a service charged for and, indeed, if an account is kept in credit the service will not be charged for. What you have to consider in this case is whether the service, however it is, whatever you decide the defendant did, whether that service would be one which a customer would be expected to pay for."

19. The judge said that count 2 was similar. The jury had to be sure that the appellant used the bank account sometime between 16^th October and 10^th December 2001. There was no direct evidence that he opened the account, but the prosecution invited the jury to infer that he did so. The jury also had to be satisfied that the use of the account "was one for which the bank would make a charge", and again the question of overdrafts and interest charges came into play.
20. As to count 4, this charged the defendant with attempting to obtain banking services from Barclays Bank by falsely representing that he was Andrew Narramore. The appellant admitted that he was attempting to obtain banking services. As to payment, the judge directed the jury that:

"… you have to be satisfied that the services would be paid for. As the opening of an account would not itself be a service which Barclays would charge for, before you can convict you must be satisfied that the defendant was seeking to obtain the services which would be charged for: for example, an overdraft whether authorised or not."

21. Count 5 charged the appellant with dishonestly obtaining services from a subsidiary of the Royal Bank of Scotland who provided a Style card. There was no charge for the card itself. It was used on the very day that it was obtained. The judge directed the jury that:

"… mere use does not always mean you have to pay anything for the service, because if you pay the account within so many days of it being sent to you, no interest is charged. You would need to be satisfied that when the defendant obtained this card he did so intending that he would not be paying off the balance within that period of time, and there, of course, you have to have regard to what in fact happened."

Grounds of appeal

22. There are essentially three grounds of appeal. First, for counts 1 and 2, it is contended that there was no sufficient obtaining of services within the section because it was not established that the appellant opened the bank accounts. Second, if services were obtained as part of a continuing process of operating the bank account dishonestly, the counts were embarrassingly duplicitous because the defence were unable to know which of the various events within the period charged constituted the obtaining of services alleged. In the context, the offence was not a continuing offence throughout the period. Third, for each of counts 1, 2, 4 and 5, there was no sufficient evidence to sustain the necessary understanding or agreement that the benefit would be paid for.

Discussion and decisions

23. In the discussion which follows, we are indebted to the views of the late Professor Sir John Smith QC in his commentaries on Halai and also on R v Teong Tatt Chuah [1991] Crim LR 463; R v Shortland [1995] Crim LR 893; R v Cooke [1997] Crim LR 436; R v Cummings-John [1997] Crim LR 660; and R v Naviede [1997] Crim LR 662.
24. This appeal raises difficult issues relating to the extent to which banking and credit card services are "services" within section 1 of the 1978 Act; what amounts to obtaining those services; and what is the ambit of the words "on the understanding that the benefit has been or will be paid for" in section 1(2). In form, the definition of "an obtaining of services" in section 1(2) is composite. But there are two parts to the definition comprised in the words (1) "where the other is induced to confer a benefit by doing some act, or causing or permitting some act to be done", and (2) "on the understanding that the benefit has been or will be paid for". The concept of services is in the first of these. An understanding as to payment is also necessary, but only indirectly affects the question whether what is obtained constitutes services. It is to be supposed that obtaining services is to be contrasted with obtaining property. In ordinary use, "services" has a wide range of meaning. Inducing someone to confer a benefit is also capable of wide application.
25. In Halai, the appellant obtained a mortgage from a building society by deception. This court held that obtaining the preparation of a surveyor's report and valuation, by representing that a cheque tendered in payment for it was good and would be honoured, constituted obtaining services by deception within section 1 of the 1978 Act in its unamended form. The court however went on to hold that no benefit was conferred by a building society or bank on a customer when a customer paid money into an account, so that inducing the opening of a savings account by deception did not constitute an offence within the section; and that a mortgage advance was not a service, so that attempting to obtain a mortgage advance by deception was not a criminal attempt within the section.
26. The decision in Halai that a mortgage advance was not a service was widely regarded as wrong (see Preddy at 839G and R v Graham [1997] 1 Cr App R 302 at 315E to 317C.) It had become a "sunken wreck, impeding navigation but difficult, laborious and expensive to remove" – see Graham at 317A. Section 1(3) of the 1978 Act now provides that inducing a bank or building society to make a loan, or to cause or permit a loan to be made, constitutes the obtaining of services within the section. It also provides that an understanding that any payment, by way of interest or otherwise, will be or has been made in respect of the loan is sufficient for the purposes of sub-section (2).
27. The appellant no longer pursues his appeal against his conviction on count 3. This charged him with dishonestly obtaining services from American Express. He used a false identity to obtain a credit card with a £2000 limit. He completed and sent application documents to the bank. He subsequently used the card that was issued to him. There was evidence that the agreement with American Express provided for an annual charge of £12.
28. Mr Cousens accepted that these facts constituted obtaining services by deception within section 1 of the 1978 Act. He accepted that the obtaining of a credit card by deception constituted obtaining services within the section. We consider that he was correct to do so. Obtaining a credit card comprises obtaining access to the familiar structure of services which a credit card supports. The card itself is not a service or services. The services are those which underlie the card holder's use of the card. Mr Cousens also accepted that the stipulation as to payment established by the evidence satisfied the statutory requirement that the person providing the services should be induced to confer a benefit on the understanding that the benefit had been or would be paid for.
29. Mr Cousens accepted by extension that the opening of a bank account, where this is obtained by deception, could constitute obtaining services by deception. In so far as this is an acceptance that the second limb of Halai has not survived the amendment to section 1 of the 1978 Act, we think this is correct. The second limb included that inducing the opening of a savings account did not constitute the offence within the unamended section. Opening a bank account comprises obtaining access to the familiar structure of services which the retail banking system supports. But Mr Cousens submits that it would be necessary for the prosecution also to establish positively that the account was opened upon an understanding or agreement that the account holder would make some payment to the bank for the services obtained. If the prosecution did not positively establish this, the statutory offence was not made out.
30. Mr Cousens submitted that, once a bank account or credit card has been initially obtained, different considerations apply for each of them. He accepted that the dishonest use of a credit card would be capable of being the obtaining of services within the section, provided that the necessary understanding as to payment was also established. He did not, however, accept that the continuing dishonest use of a bank account, once it had been opened, constituted obtaining services by deception. The obtaining of the services comprising the ability to use the bank account occurred when the account was opened. The subsequent operation of the account did not constitute obtaining services within the section. The obtaining of a loan to be credited to the bank account could, however, come within the section, if the requisite understanding as to payment were also established. These are fine and troublesome distinctions. If they are correct, they would require intellectual gymnastics by judges and juries which a workable criminal justice structure could well do without. We do not see any substantial difference, in the context of obtaining services by deception, between the dishonest use of a credit card and the dishonest operation of a bank account. To be fair, we did not understand Mr Cousens to have been consistent in his oral submissions in maintaining this distinction.
31. When the appeal in Preddy came before the House of Lords, the appellate committee was invited to hear argument, in the light of the by then discredited (but not overruled) decision of this court in Halai, as to the proper ambit of section 1 of the 1978 Act in its then unamended form. The House declined to make any ruling, but Lord Goff of Chieveley rehearsed the strong academic and judicial criticisms of Halai. He epitomised these criticisms as founded essentially upon sub-section (2) of section 1 of the 1978 Act. It was said that, in the context of obtaining mortgage advances from building societies, the "act" is the making of the advance, and that that act is plainly to be paid for because interest is to be charged for the advance. Lord Goff then said at page 840B:

"There is considerable force in this criticism; and certainly, if accepted, it would close a manifest gap in our criminal law. I feel bound to comment however, that, although a wide definition of "services" appears to have been intended (see Professor Smith's The Law of Theft, 7^th ed.,p 112), nevertheless if sub-section (2) were to be construed in the literal manner which is understandably urged upon us in the literature on the subject, it would follow that the ambit of section 1 of the Act of 1978 would be remarkably wide. It would stretch far beyond what is ordinarily included in the notion of services as generally understood. In particular, although we have become used to the expression "financial services" as describing a range of services available for those involved in that service industry, it is not altogether natural to think of the simple making of a loan upon interest as itself constituting a service. Moreover on this approach it is, I suppose, arguable that, for example, the supply of goods (at an underpayment) or procuring the execution of a valuable security might also fall within this section, which could lead to an overlap between the section and sections 15(1) and 20(2) of the Act of 1968. The effect is that section 1 of the Act of 1978 is exposed to some of the criticisms which led to the rejection of clause 12(3) of the Criminal Law Revision Committee's original Bill (Eighth Report: Theft and Related Offences (Cmnd. 2977)), though its scope is restricted by the requirement that the relevant benefit should be conferred on the understanding that it has been or will be paid for."

32. The subsequent addition of sub-section (3) to section 1 of the 1978 Act, in our judgment, justifies a modification to Lord Goff's caution as to the ambit of "services". Parliament was persuaded that dishonestly inducing a bank or building society to make a loan, on the understanding that interest or other payment would be made in respect of it, should constitute obtaining services within the section. In our judgment, there should no longer be any doubt but that dishonestly inducing a bank or building society to provide banking or credit card services is also within the section, provided the requirement as to payment is also satisfied. We consider that Mr Cousens is right to accept that inducing a bank or building society to open an account constitutes obtaining services; and that inducing a bank or other organisation to issue a credit card constitutes obtaining services. We also consider that the dishonest operation of a bank or building society account over a period and a dishonest use of a credit card over a period constitutes obtaining services within the section. We reach this conclusion, having due regard to Lord Goff's caution as to the width of the section and its possible overlap with other provisions of the 1968 Act, but seeing no proper distinction between the opening of a bank account and its subsequent operation. What the bank provides in each instance is the benefit of their participation in the banking system which can in our judgment properly be described as a service or services. We do not need to decide for the purposes of the present appeal whether dishonestly inducing a bank to negotiate a single cheque or the dishonest use of a credit card on a single occasion would constitute obtaining services within the section. Mr Cousens was inclined to concede that it would and we can see that logically it might, given our earlier decisions. But we do not so decide and do not encourage prosecutors to bring proceedings on this basis. For facts such as these, it should usually be possible, depending on the facts, to formulate a more appropriate charge under one of the related sections of the 1968 Act.
33. Since we consider that the dishonest operation of a bank or building society account over a period is capable, subject to the necessary understanding as to payment, of constituting dishonestly obtaining services by deception within the section, we also consider that the judge was correct to rule that this was capable of being a continuous offence encompassing the whole operation of the accounts. Counts 1 and 2 did not charge more than one offence. They were not duplicitous. It was immaterial that the form of the particulars referred to a day within the period. The case which the appellant had to meet was in our view clear. The case was proved if the jury were satisfied that the appellant dishonestly and by a continuing deception operated the accounts, with the necessary understanding as to payment, during the whole or any part of the period between the dates specified. The judge's Brown direction, to which we have referred, properly directed the jury not to convict in respect of part only of that period unless they were all satisfied in respect of the same part.
34. The ambit of the necessary understanding as to payment is problematic. Mr Causer, for the prosecution, submits that the words "on the understanding that the benefit has been or will be paid for" are only intended to limit the ambit of the section to commercial transactions. The section is not intended to encompass obtaining gratuitous services by deception. Banks and building societies are commercial organisations. They are not in business to provide gratuitous services and it may be assumed that, if a customer opens and operates an account, he will pay for the services so provided by some means. Banks habitually make charges for running their customers' accounts. They charge interest on overdrawn accounts. They often pay no interest on accounts which are in credit; or, if they do, the rate of interest is less than they themselves obtain on the same money in the market. Credit card providers sometimes make charges for operating the account, whether there is prompt repayment in full or not. American Express did this for count 3 of the present indictment. Credit card operators also charge interest, if the account is not paid in full after a stipulated short period. Even if a particular customer pays his credit card balance in full within the stipulated period, the card provider may still be taken to make a charge to the supplier of goods purchased by means of the card, so that the amount which the customer pays for the goods is greater than it would be if the credit card service were not provided.
35. Mr Causer further submits that the "understanding" is that of the person providing the services, that is the bank or the credit card company, and that the understanding does not have to be mutual. Banks, building societies and credit card companies do operate on the understanding that their services are paid for by some means or other and that should be sufficient. Somewhere within the system there is a charge sufficient to comprise an understanding that the benefit has been or will be paid for.
36. Section 1(2) refers to an understanding, not an agreement. This is, we think, intended to cover situations where nothing explicitly is said about payment, but where there is a common understanding that the services will not be provided gratuitously. I can induce someone to mow my lawn on the understanding that he will do so for nothing: or the understanding may be that he will be paid. If, in the latter instance, I induce him to mow my lawn dishonestly by deception, as for instance by representing that I am able to pay him when I am not, I commit an offence within the section. This would be so even if there is no explicit articulation of the understanding as to payment.
37. We accept that in a subjective sense the understanding may not in truth be mutual. The section is concerned with dishonest deception and the deception may well relate to the deceiver's intention and ability to pay. A dishonest person may well not have a subjective intention or understanding that he will pay. But we do consider that the section envisages a putative objective mutual understanding as to payment on the assumption that the inducement was not dishonest. We consider that an understanding which is mutual in this sense is the natural meaning of the use of the word "understanding" in its context. We also consider that payment has to be an identifiable payment or payments made or to be made by or on behalf of the person obtaining the services. We recognise that there are some indications in favour of a looser construction. The words in sub-section (2) "has been or will be paid for" do not by themselves positively require that the payment has to be by or on behalf of the person obtaining the services. The words "any payment" and "by way of interest or otherwise" in sub-section (3) are wide. But we consider that the general sense of the section is that the payment is to be made by or on behalf of the person obtaining the services. And we consider that the words in sub-section (3) "on the understanding that any payment … will be or has been made in respect of the loan" positively connote payment by the borrower in respect of the loan. Just as we consider that the introduction of sub-section (3) clarified the ambit of "services" beyond the specific instance of a loan; so we consider that the introduction of the sub-section clarified the meaning "has been or will be paid for".
38. This construction means that, in our judgment, an understanding as to payment under the section will not be satisfied unless there is an agreement or sufficient understanding that an identifiable payment or payments have been or will be made by or on behalf of the person receiving the services to the person providing them. Although it is a common understanding that banks often make charges on accounts which are in credit and charge interest on accounts which are overdrawn, this is not invariably so. Likewise, although it is common for credit card providers to make charges and to charge interest on debit balances which are not promptly paid, it is not to be assumed that every credit card provider makes a charge irrespective of when the balance is repaid; and many people are careful to pay off their balances promptly and thus avoid interest charges. It may therefore be possible to have the benefit of a credit card without ever making any identifiable direct payment to the credit card provider.
39. In Shortland, the appellant opened two bank accounts under an assumed name. There was no direct evidence of any understanding that the provision of banking services had been or would be paid for. The trial judge rejected a submission of no case to answer saying that it would be an affront to commonsense to think that banking services would be provided free of charge. He ruled that the jury could infer from the opening of the bank accounts that the benefit conferred would be paid for, and he directed them accordingly. This court allowed the appellant's appeal, holding that the matter should have been withdrawn from the jury. The inference which the jury were invited to draw was not something that they could conclude with any safety or satisfaction. Mr Causer points out that the Crown did not resist the appeal and that the decision was before the amendment introducing sub-section (3) to section 1 of the 1978 Act. As to the latter, we have explained our view that sub-section (3) clarifies the requirement as to payment in the way we have indicated. Professor Smith's commentary on Shortland states that what was missing in that case was any evidence as to the terms of the contract made when the appellant opened the account. These terms would probably have shown that the service was to be paid for but it was not possible to infer with the necessary degree of certainty that this was so from the mere fact of the opening of the account.
40. It might be possible to submit, from the brevity of the report and the fact that the Crown did not resist the appeal, that we are not strictly bound by the decision in Shortland. We consider on balance that we are bound by that decision, but in any event it accords with our view as to the construction of the section as amended. We do not consider that inferred indirect commercial advantages to a bank, building society or credit card provider are capable of providing the necessary ingredient as to payment. These will include the difference between interest paid by a bank to an account holder and interest earned by the bank on the same money; or a charge by the credit card provider to the seller of goods bought by means of a credit card. Nor can it be safely inferred from the mere opening of a bank account or the mere obtaining of a credit card that there will be charges. But the facts of the present appeal well illustrate circumstances in which a jury could surely infer the necessary understanding as to payment. The appellant was comprehensively dishonest. He intentionally used the bank accounts in counts 1 and 2 so that they became overdrawn. For count 1 he obtained a substantial loan. The services he obtained were not just the use of bank accounts, but of bank accounts which he dishonestly intended to overdraw. It was open to the jury to infer that the banks would charge interest on accounts overdrawn in this way. Although in different circumstances an inference that interest would be charged might not safely be drawn, it did not require direct evidence that banks invariably charge interest on substantial unauthorised overdrafts to draw such an inference in the present case. Such an inference would be a sufficient putative objective mutual understanding as to payment for the purposes of the offence charged in each of these counts. For counts 4 and 5, where the appellant was charged with attempting to open a bank account and with obtaining the shop card, it was open to the jury to infer from the evidence as a whole that the appellant's intention in each instance was to overdraw the accounts so that interest would be charged. Here again the inference was capable of supporting the necessary understanding as to payment.
41. In substance, the judge directed the jury in conformity with this analysis. So directed, the jury convicted the appellant. We conclude that the appellant's convictions on counts 1, 2, 4 and 5 are safe and the appeal is dismissed.