United Kingdom House of Lords Decisions

absent.

"... as soon as the intent to evade payment was formed and the
" Appellant still posed as an ordinary customer the deception had
" been made."

2

The magistrates stated that they were of opinion that:

"... having changed his mind as regards payment, by remaining
" in the restaurant for a further ten minutes as an ordinary customer
" who was likely to order a sweet or coffee, the appellant practised a
" deception."

I cannot read that as a finding that after he changed his mind he intended
to deceive the waiter into believing that he still intended to pay. And
there is no finding that the waiter was in fact induced to believe that by
anything the accused did after he changed his mind. I would infer from
the case that all that he intended to do was to take advantage of the first
opportunity to escape and evade his obligation to pay.

Deception is an essential ingredient of the offence. Dishonest evasion
of an obligation to pay is not enough. I cannot see that there was, in fact,
any more than that in this case.

I agree with the Divisional Court that:

" His plan was totally lacking in the subtlety of deception and to
" argue that his remaining in the room until the coast was clear
" amounted to a representation to the waiter is to introduce an arti-
" ficiality which should have no place in the Act."

I would therefore dismiss this appeal.

Lord MacDermott

MY LORDS,

The respondent with four other young men entered a restaurant on the
evening of 30th September, 1971, and he and three of his companions
then ordered a meal. When this order was given the respondent intended
to pay for his meal. The meal was duly served and there were no com-
plaints. But after the respondent and the others had eaten it they had a
discussion and decided to run out of the restaurant without paying. Some
ten minutes later they did so while the waiter was absent in the kitchen.
By then they had been almost an hour in the restaurant and, until they
ran out, had maintained the demeanour of ordinary customers.

On 1st February, 1972, the respondent was brought before the Magis-
trates' Court sitting at Gainsborough on an information arising out of this
incident and alleging an offence under section 16(1) of the Theft Act.
1968. The terms of the charge were inapt, but no point was taken about
this and before your Lordships counsel for the parties agreed that, in its
substance, the offence charged was that the respondent on the occasion
in question had dishonestly obtained for himself by deception a pecuniary
advantage, namely, the evasion of a debt of 47 pence, the price of the
meal he had consumed.

The Magistrates' Court found that the respondent had practised a decep-
tion, and that, having made himself liable for a debt in respect of a meal,
had by his deception dishonestly evaded payment. The Court accordingly
found the case proved, convicted the respondent and fined him £1. It
subsequently stated a case for the High Court which set out the facts
and findings I have mentioned and asked whether, upon a true construction
of section 16 of the Theft Act, 1968, the respondent was rightly convicted.

On 19th December, 1972, a Divisional Court (Lord Widgery C.J., Willis
and Talbot JJ.) answered this question in the negative. From that decision
the Director of Public Prosecutions now appeals by leave to your Lordships'
House.

The material parts of subsections (1) and (2) of section 16 read—

" (1) A person who by any deception dishonestly obtains for himself
" or another any pecuniary advantage shall on conviction on indictment
" be liable to imprisonment for a term not exceeding five years.

3

" (2) The cases in which a pecuniary advantage within the meaning
" of this section is to be regarded as obtained for a person are cases
" where—

" (a) any debt or charge for which he makes himself liable or is or
" may become liable (including one not legally enforceable) is
" reduced or in whole or in part evaded or deferred ;. ..".

Section 29(2) of the Act of 1968 provides for the summary trial of offences
under section 16 with the consent of the accused and subsection (3) of
section 16 incorporates the meaning of " deception" contained in sub-
section (4) of section 15 which says that" deception " means—

"... any deception (whether deliberate or reckless) by words or
" conduct as to fact or as to law, including a deception as to the
" present intentions of the person using the deception or any other
" person."

To prove the charge against the respondent the prosecution had to show
that he (i) by a deception (ii) had dishonestly (iii) obtained for himself
(iv) a pecuniary advantage. The last of these ingredients no longer raises,
on the facts of this appeal, the problems of interpretation which were
recently considered by this House in Director of Public Prosecutions v.
Turner. By that decision a debt is " evaded " even if the evasion falls
short of being final or permanent and is only for the time being; and a
pecuniary advantage has not to be proved in fact as it is enough if the case
is brought within section 16(2)(a) or (b) or (c).

On the facts here, this means that the respondent's debt for the meal
he had eaten was evaded for the purposes of subsection 2(a); and that in
consequence he obtained a pecuniary advantage within the meaning of sub-
section (1). No issue therefore arises on the ingredients I have numbered
(iii) and (iv). Nor is there any controversy about ingredient (ii). If the
respondent obtained a pecuniary advantage as described he undoubtedly
did so dishonestly. The case is thus narrowed to ingredient (i) and that
leaves two questions for consideration. First, do the facts justify a finding
that the respondent practised a deception? And secondly, if he did, was
his evasion of the debt obtained by that deception?

The first of these questions involves nothing in the way of words spoken
or written. If there was deception on the part of the respondent it was by
his conduct in the course of an extremely common form of transaction
which, because of its nature, leaves much to be implied for conduct. An-
other circumstance affecting the ambit of this question lies in the fact that,
looking only to the period after the meal had been eaten and the respondent
and his companions had decided to evade payment, there is nothing that 1
can find in the discernible conduct of the respondent which would suffice
in itself to show that he was then practising a deception. No doubt he
and the others stayed in their seats until the waiter went into the kitchen
and while doing so gave all the appearance of ordinary customers. But in
my opinion nothing in this or in anything else which occurred after the
change of intention went far enough to afford proof of deception. The
picture, as I see it, presented by this last stage of the entire transaction, is
simply that of a group which had decided to evade payment and were
awaiting the opportunity to do so.

There is, however, no sound reason that I can see for restricting the in-
quiry to this final phase. One cannot, so to speak, draw a line through
the transaction at the point where the intention changed and search for evi-
dence of deception only in what happened before that or only in what
happened after that. In my opinion the transaction must for this purpose
be regarded in its entirety, beginning with the respondent entering the
restaurant and ordering his meal and ending with his running out without
paying. The different stages of the transaction are all linked and it would
be quite unrealistic to treat them in isolation.

Starting then at the beginning one finds in the conduct of the respondent
in entering and ordering his meal evidence that he impliedly represented

4

that he had the means and the intention of paying for it before he left.
That the respondent did make such a representation was not in dispute
and in the absence of evidence to the contrary it would be difficult to
reach a different conclusion. If this representation had then been false and
matters had proceeded thereafter as they did (but without any change of
intention) a conviction for the offence charged would, in my view, have had
ample material to support it. But as the representation when originally
made in this case was not false there was therefore no deception at that
point. Then the meal is served and eaten and the intention to evade the
debt replaces the intention to pay. Did this change of mind produce a
deception?

My Lords, in my opinion it did. I do not base this conclusion merely
on the change of mind that had occurred for that in itself was not
manifest at the time and did not amount to " conduct" on the part of the
respondent. But it did falsify the representation which had already
been made because that initial representation must, in my view, be regarded
not as something then spent and past but as a continuing representation
which remained alive and operative and had already resulted in the respon-
dent and his defaulting companions being taken on trust and treated as
ordinary, honest customers. It covered the whole transaction up to and
including payment and must therefore, in my opinion, be considered as
continuing and still active at the time of the change of mind. When that
happened, with the respondent taking (as might be expected) no step to
bring the change to notice, he practised to my way of thinking a deception
just as real and just as dishonest as would have been the case if his intention
all along had been to go out without paying.

Holding for these reasons that the respondent practised a deception, I
turn to what I have referred to as the second question. Was the respon-
dent's evasion of the debt obtained by that deception?

I think the material before the justices was enough to show that it was.
The obvious effect of the deception was that the respondent and his asso-
ciates were treated as they had been previously, that is to say as ordinary,
honest customers whose conduct did not excite suspicion or call for precau-
tions. In consequence the waiter was off his guard and vanished into the
kitchen. That gave the respondent the opportunity of running out without
hindrance and he took it. I would therefore answer this second question
in the affirmative.

I would, accordingly, allow the appeal and restore the conviction.

Lord Morris of Borth-y-Gest

MY LORDS,

The facts that have given rise to this appeal lie within a very small
compass. The respondent went into the Wing Wah Restaurant in Gains-
borough. He ordered and consumed some food. In respect of it he incurred
a debt to the restaurant to the amount of 47p. He then decided that he
would not pay. Biding his time until the waiter had gone out of the
Restaurant to the kitchen he then ran out of the Restaurant. Were the
Magistrates, who imposed a fine of £1 warranted in convicting him, as they
did, of—

" evading the said debt by running out of the said Restaurant without
" payment, contrary to Section 16(1) of the Theft Act 1968 "?

The Magistrates were asked to state a case and they did so. The facts

as found are very succinctly set out. The case when in draft was doubtless

made available to Defence and Prosecution. The only question stated was—

" whether upon a true construction of Section 16 of the Theft Act 1968

" the Appellant was rightly convicted."

5

It was common ground that the wording of the information as drafted
was open to certain comments. Apart from the fact that the dishonest
intention of the respondent was alleged to have been at the time when he
ordered food which allegation was not proved and was disproved, the
dishonest obtaining of a pecuniary advantage was laid as consisting of the
obtaining of the meal. We were told that both at the hearing before the
Magistrates and at the hearing in the Divisional Court, where the conviction
was quashed, it was decided on behalf of the respondent that no point
should be taken in regard to the form of the information: equally no point
has been taken in this House: the case has proceeded on the basis that
the effective allegation made against the respondent in the Information
was that by deception he dishonestly evaded the debt which he had incurred.
So the question under consideration has been whether on the facts as
found, the respondent had by deception dishonestly obtained a pecuniary
advantage for himself in that the debt for which he became liable was
evaded.

Section 16(1) of the Theft Act 1968, under which subsection the
Respondent was convicted, is in the following terms: —

" A person who by any deception dishonestly obtains for himself or
" another any pecuniary advantage shall on conviction on indictment
" be liable to imprisonment for a term not exceeding five years."

Subsection (2) of the section proceeds to set out—

"The cases in which a pecuniary advantage within the meaning of
" this section is to be regarded as obtained for a person are cases
" where—

" (a) any debt or charge for which he makes himself liable or is or
" may become liable (including one not legally enforceable) is reduced
" or in whole or in part evaded or deferred ;"

From the wording of the section it is clear that if the respondent became
liable (in respect of his meal) for a debt and if he evaded that debt then
he obtained a pecuniary advantage and he would be guilty under section 16
subsection (1) if he had dishonestly obtained that pecuniary advantage by
any deception.

By section 16 subsection (3) " deception " has the same meaning as in
section 15 and by subsection (4) of section 15 "' deception' means any
" deception (whether deliberate or reckless) by words or conduct as to fact
" or as to law, including a deception as to the present intentions of the
" person using the deception or any other person."

So it has to be considered whether the respondent practised some decep-
tion whereby he obtained the financial advantage which he will be regarded
as having obtained if he evaded his debt in the restaurant.

For a deception to take place there must be some person or persons who
will have been deceived. " Deception " is a word which is well under-
stood. As Buckley J. said in In re London and Globe Finance Corporation
Limited [19031 1 Ch.728, 732—

' To deceive is. I apprehend, to induce a man to believe that a thing
"is true which is false, and which the person practising the deceit
" knows or believes to be false."

In the present case the person deceived was the waiter. Did the respondent
deceive the waiter as to what were his intentions? Did the respondent so
conduct himself as to induce the waiter to believe that he (the respondent)
intended to pay his bill before he left the restaurant whereas at the relevant
time he did not so intend?

In order to relate the law to the facts it will be desirable to have them
clearly in mind. The respondent was in the company of four other men.
We are, however, only concerned with the respondent. The facts recorded
by the Magistrates were as follows: —

" (a) On the evening of the 30th September 1971 the appellant (who
" is a University Student) and four other young men entered the Wing

6

"Wah Restaurant and four of them including the appellant, ordered
" a meal.

" (b) At the time he entered the restaurant the appellant had only
" ten pence on him, which was insufficient for a meal; one of the
" other men had agreed to lend him some money to pay.

" (c) The appellant was served with a meal, which he ate without
" making any complaint to the restaurant staff. A discussion took
" place between the other young men who had had a meal, which the
" appellant joined, and they decided not to pay for the meal and to
" run out of the restaurant.

" (d) Some ten minutes later, and after being in the restaurant for
" nearly an hour and maintaining the demeanour of ordinary customers,
" the appellant and his four companions ran out of the restaurant
" whilst the waiter had gone to the kitchen. No payment was offered
" or made, and no money was left, for the meals served. Each of
" the four had consumed only a main course.

" (e) After leaving the restaurant the appellant and the others ran
" away, and hid from sight of an approaching Police vehicle."

They further recorded their opinion as follows: —

" (a) The appellant entered the restaurant intending that his meal
" should be paid for, by one of his companions.

" (b) That he had no complaint on the quality of the meal, and
" consumed it all.

" (c) That when his companions indicated a desire to evade pay-
" ment, the appellant concurred in this and joined in the discussion of
" how this was to be done.

" (d) That having changed his mind as regards payment, by remaining
" in the restaurant for a further ten minutes as an ordinary customer
" who was likely to order a sweet or coffee, the appellant practised
" a deception.

" (e) That the appellant had made himself liable for a debt in respect
" of a meal, and by his deception dishonestly evaded payment."

It is clear that the respondent went into the restaurant in the capacity
of an ordinary customer. Such a person by his conduct in ordering food
impliedly says—If you will properly provide me with that which I order,
I will pay you the amount for which I will become liable. In some
restaurants a customer might have a special arrangement as to payment.
A customer might on occasion make a special arrangement. Had there
been any basis for suggesting that the respondent was not under obligation
to discharge his debt before he left the restaurant that would have been
recorded in the Case Stated. All the facts as found make it unlikely that
it would have been possible even to contend that in this case the debt
incurred was other than one which was to be discharged by a cash payment
made before leaving.

If someone goes to a restaurant and, having no means whatsoever to
pay and no credit arrangement, obtains a meal for which he knows he
cannot pay and for which he has no intention of paying he will be guilty
of an offence under section 15 of the Theft Act. Such a person would
obtain the meal by deception. By his conduct in ordering the meal he
would be representing to the restaurant that he had the intention of paying
whereas he would not have had any such intention. In the present case
when the respondent ordered his meal he impliedly made to the waiter
the ordinary representation of the ordinary customer that it was his intention
to pay. He induced the waiter to believe that that was his intention.
Furthermore, on the facts as found it is clear that all concerned (the waiter,
the respondent and his companions) proceeded on the basis that an ordinary
customer would pay his bill before leaving. The waiter would not have
accepted the order or served the meal had there not been the implied
representation.

7

The situation may perhaps be unusual where a customer honestly orders
a meal and therefore indicates his honest intention to pay but thereafter
forms a dishonest intention of running away without paying if he can.
Inherent in an original honest representation of an intention to pay there
must surely be a representation that such intention will continue.

In the present case it is found as a fact that when the respondent ordered
his meal he believed that he would be able to pay. One of his companions
had agreed to lend him money. He therefore intended to pay. So far as
the waiter was concerned the original implied representation made to him
by the respondent must have been a continuing representation so long as
he (the respondent) remained in the restaurant. There was nothing to
alter the representation. Just as the waiter was led at the start to believe
that he was dealing with a customer who by all that he did in the restaurant
was indicating his intention to pay in the ordinary way, so the waiter was
led to believe that that state of affairs continued. But the moment came
when the respondent decided and therefore knew that he was not going to
pay: but he also know that the waiter still thought that he was going to
pay. By ordering his meal and by his conduct in assuming the role of an
ordinary customer the respondent had previously shown that it was his
intention to pay. By continuing in the same role and behaving just as
before he was representing that his previous intention continued. That
was a deception because his intention, unknown to the waiter, had become
quite otherwise. The dishonest change of intention was not likely to
produce the result that the waiter would be told of it. The essence of the
deception was that the waiter should not know of it or be given any sort
of clue that it (the change of intention) had come about. Had the waiter
suspected that by a change of intention a secret exodus was being planned,
it is obvious that he would have taken action to prevent its being achieved.

It was said in the Divisional Court that a deception under section 16
should not be found unless an accused has actively made a representation
hy words or conduct which representation is found to be false. But if
there was an original representation (as in my view there was when the
meal was ordered) it was a representation that was intended to be and was
a continuing representation. It continued to operate on the mind of the
waiter. It became false and it became a deliberate deception. The prosecu-
tion do not say that the deception consisted in not informing the waiter
of the change of mind ; they say that the deception consisted in continuing
to represent to the waiter that there was an intention to pay before leaving.

On behalf of the respondent it was contended that no deception had been
practised. It was accepted that when the meal was ordered there was a
representation by the respondent that he would pay but it was contended
that once the meal was served there was no longer any representation but
that there was merely an obligation to pay a debt: it was further argued
that thereafter there was no deception because there was no obligation in
the debtor to inform his creditor that payment was not to be made. I
cannot accept these contentions. They ignore the circumstance that the
representation that was made was a continuing one: it's essence was that
an intention to pay would continue until payment was made: by it's very
nature it could not cease to operate as a representation unless some new
arrangement was made.

A further contention on behalf of the respondent was that the debt was
not in whole or in part evaded. It was said that on the facts as found there
was an evasion of the payment of a debt but no evasion of the debt and
that a debt (which denotes an obligation to pay) is not evaded unless it is
released or unless there is a discharge of it which is void or voidable. I
cannot accept this contention. Though a " debt ", as referred to in the
section does denote an obligation to pay, the obligation of the respondent
was to pay for his meal before he left the restaurant. When he left without
paying he had, in my view, evaded his obligation to pay before leaving. He
dodged his obligation. Accordingly he obtained a " pecuniary advantage ".

The final question which arises is whether, if there was deception and
if there was pecuniary advantage, it was by the deception that the respondent

8

obtained the pecuniary advantage. In my view, this must be a question
of fact and the Magistrates have found that it was by his deception that
the respondent dishonestly evaded payment. It would seem to be clear
that if the waiter had thought that if he left the restaurant to go to the
kitchen the respondent would at once run out, he (the waiter) would not
have left the restaurant and would have taken suitable action. The waiter
proceeded on the basis that the implied representation made to him (i.e. of
an honest intention to pay) was effective. The waiter was caused to refrain
from taking certain courses of action which but for the representation he
would have taken. In my view, the respondent during the whole time
that he was in the restaurant made and by his continuing conduct continued
to make a representation of his intention to pay before leaving. When in
place of his original intention he substituted the dishonest intention of
running away as soon as the waiter's back was turned, he was continuing to
lead the waiter to believe that he intended to pay. He practised a deception
on the waiter and by so doing he obtained for himself the pecuniary
advantage of evading his obligation to pay before leaving. That he did so
dishonestly was found by the Magistrates who, in my opinion, rightly
convicted him.

I would allow the appeal.

Lord Hodson

MY LORDS,

The question submitted arises from a Certificate given by the Divisional
Court in accordance with section 1(2) of the Administration of Justice Act,
1960, that a point of law of general public importance is involved in the
decision in the said case.

The question is stated as follows:

"Whether a deception within Section 15(4) of the Theft Act 1968
" is proved when a person, who initially obtains credit honestly by
" representing his willingness to pay, later dishonestly decides to evade
" payment but fails to correct the original representation."

Section 15(4) contains these words:

" . . . ' deception' means any deception (whether deliberate or reck-
" less) by words or conduct as to fact or as to law, including a decep-
" lion as to the present intentions of the person using the deception or
" any other person."

The Appellant prosecutor preferred an information against the Respon-
dent which was heard by the Gainsborough justices on February 1st, 1972.
He was charged with a deception in that on the 30th September, 1971, by
his conduct in ordering and being served a meal in the Wing Wan
Restaurant at Gainsborough, and impliedly holding out at that time an in-
tention and an ability to pay on demand upon receipt of the bill, dishonestly
obtained for himself a pecuniary advantage, namely, a meal to the value of
47p. and evaded the debt by running out of the said restaurant without
payment contrary to section 16(1) of the Theft Act, 1968. The Respondent
was convicted. This conviction was quashed by the Divisional Court on
the ground that the evidence did not support any finding that there had
been a deception whereby there was an evasion of the debt. The Respon-
dent's appeal was accordingly allowed.

Section 16(1) of the Theft Act, 1968, provides:

" A person who by any deception dishonestly obtains for himself
"or another any pecuniary advantage shall on conviction on indict-
" ment be liable to imprisonment for a term not exceeding five years."

The matter came before the Divisional Court on a Case Stated by the
Gainsborough Magistrates which shows the facts found by them and ex-
plains the form in which the question for your Lordships has been framed.

The following facts were found:

" (a) On the evening of the 30th September 1971 the appellant (who
" is a University Student) and four other young men entered the Wing
" Wah Restaurant and four of them including the appellant, ordered
" a meal.

" (b) At the time he entered the restaurant the appellant had only
" ten pence on him, which was insufficient for a meal; one of the other
" men had agreed to lend him some money to pay.

" (c) The appellant was served with a meal, which he ate without
" making any complaint to the restaurant staff. A discussion took
" place between the other young men who had had a meal, which the
" appellant joined, and they decided not to pay for the meal and to
" run out of the restaurant.

" (d) Some ten minutes later, and after being in the restaurant
" for nearly an hour and maintaining the demeanour of ordinary cus-
" tomers, the appellant and his four companions ran out of the restau-
" rant whilst the waiter had gone to the kitchen. No payment was
" offered or made, and no money was left, for the meals served. Each
" of the four had consumed only a main course.

" (e) After leaving the restaurant the appellant and the others ran
" away, and hid from sight of an approaching Police vehicle."

The Magistrates were of opinion:

" (a) The appellant entered the restaurant intending that his meal
" should be paid for. by one of his companions.

" (b) That he had no complaint on the quality of the meal, and
" consumed it all.

" (c) That when his companions indicated a desire to evade payment,
" the appellant concurred in this and joined in the discussion of how
" this was to be done.

" (d) That having changed his mind as regards payment, by remain-
" ing in the restaurant for a further ten minutes as an ordinary
" customer who was likely to order a sweet or coffee, the appellant
" practised a deception.

" (e) That the appellant had made himself liable for a debt in
" respect of a meal, and by his deception dishonestly evaded payment."

and accordingly found the case proved, convicted the Respondent and
ordered him to pay a fine of £1.

The question stated for the opinion of the High Court is whether upon
a true construction of section 16 of the Theft Act, 1968, the Respondent
was rightly convicted.

The question is certainly a puzzling one since the facts as found do not
suggest that the meal obtained by the Respondent was dishonestly obtained
as a pecuniary advantage. What is found is that the Respondent changed
his mind as regards payment and practised a deception by remaining in the
restaurant for a further ten minutes as an ordinary customer who was likely
to order a sweet or coffee.

There is no doubt that the Respondent evaded payment of the debt by
walking out of the restaurant with his companions, but the prosecution
has always accepted that there was no deception in the first instance because
the intention was to pay for the meal when ordered.

It is argued, however, that a representation having been made at the time
the credit was honestly obtained, the Respondent later dishonestly decided
to evade payment by failing to correct the original representation.

To answer the submitted question, it is necessary to follow the definition
of deceit which I have cited from section 15(4). The deceit is in essence
the same as that long recognised when a person is charged with obtaining

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