United Kingdom House of Lords Decisions

Parliamentary Archives,
HL/PO/JU/18/245

Regina

v.

Allen (Respondent)
(On Appeal from the Court of Appeal (Criminal Division))

JUDGMENT

Die Jovis 13° Junii 1985

Upon Report from the Appellate Committee to whom was
referred the Cause Regina against Allen, That the Committee
had heard Counsel on Monday the 13th day of May last upon the
Petition and Appeal of the Commissioner of Metropolitan
Police, New Scotland Yard, Broadway, London, SW1H OBG (on
behalf of Her Majesty) praying that the matter of the Order
set forth in the Schedule thereto, namely an Order of Her
Majesty's Court of Appeal (Criminal Division) of the 23rd day
of July 1984, might be reviewed before Her Majesty the Queen
in Her Court of Parliament and that the said Order might be
reversed, varied or altered or that the Petitioner might have
such other relief in the premises as to Her Majesty the Queen
in Her Court of Parliament might seem meet; and Counsel
having been heard on behalf of Christopher Allen, Respondent
to the said Appeal, and due consideration had this day of
what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of Her Majesty's Court of
Appeal (Criminal Division) of the 23rd day of July 1984
complained of in the said Appeal be, and the same is hereby,
Affirmed, that the Certified Question be, and the same is
hereby, answered in the Affirmative, and that the said
Petition and Appeal be, and the same is hereby, dismissed
this House: And it is further Ordered, That the Costs of
both the Appellant and the Respondent in respect of the said
Appeal be paid out of Central Funds pursuant to section 10 of
the Costs in Criminal Cases Act 1973, the amount thereof to
be certified by the Clerk of the Parliaments.

Cler: Parlaimentor





HOUSE OF LORDS

REGINA
(APPELLANT)

V.

ALLEN
(RESPONDENT)

(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION))

Lord Chancellor
Lord Scarman
Lord Diplock
Lord Bridge ofHarwich
Lord Brightman




LORD HAILSHAM OF ST. MARYLEBONE L.C.

My Lords,

On 24 November 1983 the present respondent was arraigned
at Southwark Crown Court on an indictment containing three
counts under the Theft Act 1978.

In the events which happened the jury was discharged from
giving a verdict on counts 1 and 3 which related respectively to
section 2(1)(b) and section 1 of the Act. Following a specific
question by the jury and the judge's answer to it which form the
subject matter of this appeal the respondent was convicted on
count 2 which charged an offence under section 3.

The respondent appealed from this conviction and on 23 July
1984, after a hearing extending over three days, the Court of
Appeal (Criminal Division) (Watkins L.J., Boreham and Stuart-Smith
JJ.) allowed the appeal and quashed the conviction.

In refusing leave to appeal to your Lordships' House, the
Court of Appeal certified the following point of law of general
public importance:

"Upon a construction of the words "with intent to avoid
payment' in section 3(1) of the Theft Act 1978, namely,
whether an intention to make permanent default on payment
is required."

Leave to appeal was subsequently granted by the Appeal
Committee of your Lordships' House on 25 October 1984.

Count 2 of the indictment, which resulted in the conviction
appealed from, read as follows:

"Statement of Offence. Making off without payment,
contrary to section 3 of the Theft Act 1978. Particulars of
offence. Christopher Allen, on a day between 8 and 11
February 1983, knowing that payment on the spot for goods
supplied and services done was required or expected from
him, dishonestly made off without having paid as required or



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expected and with intent to avoid payment of the £1,286.94
due."

The facts, which are not disputed, and which I draw from
the case for the appellant, were as follows. The respondent,
Christopher Allen, booked a room at an hotel for 10 nights from
15 January 1983. He stayed on thereafter and finally left on 11
February 1983 without paying his bill in the sum of £1,286.94. He
telephoned two days later to explain that he was in financial
difficulties because of some business transactions and arranged to
return to the hotel on 18 February 1983 to remove his belongings
and leave his Australian passport as security for the debt. He was
arrested on his return and said that he genuinely hoped to be able
to pay the bill and denied he was acting dishonestly. On 3 March
1983, he was still unable to pay the bill and provided an
explanation to the police of his financial difficulties.

The respondent's defence was that he had acted honestly
and had genuinely expected to pay the bill from the proceeds of
various business ventures.

After a fairly lengthy summing up by the trial judge to
which, in the light of what happened, I need make no special
reference, the jury retired at 1.00 p.m. and came back at 2.18
p.m. with a note containing the following specific question for
guidance by the judge:

"Regarding count 2 of the indictment, the words 'and with
intent to avoid payment of the £1,286.94,' do you refer to
permanent intention or one applying only to the dates
mentioned in the charge?"

To this question the judge gave the following explicit
answer:

"The answer is: one applying only to 8 and 11 February
1983. You see it says in count 2, 'knowing that payment on
the spot for goods supplied and services done was required
or expected from him . . .' 'On the spot' means the day
you leave. There was no payment on the spot when he
should have paid. It contrasts sharply with count 1 where
the intent there is permanent: that is not so in count 2
where he was required to pay on the spot; and there has
been a failure to do that. Will you please, once more,
retire to consider your verdict."

The original summing up had contained the same direction,
but in view of what happened there is no need to refer to it
separately, for the effect on the jury of this specific reply was
immediate and decisive.

Within five minutes they returned the verdict of guilty.

Despite some (though not unanimous) text book opinions in
an opposite sense (see Smith, The Law of Theft, 5th ed. (1984),
para. 250, p. 130, Griew, The Theft Acts 1968 and 1978, 4th ed.
(1982), para. 11-14, p. 155, and, less strongly, Glanville Williams,
Textbook of Criminal Law, 2nd ed. (1983), p. 878), I consider this
answer to be clearly erroneous.

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Section 3(1) of the Act of 1978, under which count 2 was
laid, reads as follows:

"Subject to subsection (3) below," (which with subsection (4)
is irrelevant for this purpose) "a person who, knowing that
payment on the spot for any goods supplied or services 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."

The offence thus created is triable only on indictment and
attracts a maximum penalty of two years.

The appellant's contention was that the effect of this
section is to catch not only those who intend permanently to avoid
payment of the amount due, but also those whose intention is to
avoid payment on the spot, which, after all, is the time at which,
ex hypothesi, payment has been "expected or required," and the
time, therefore, when the "amount" became "due."

The judgment of the Court of Appeal, with which I agree,
was delivered by Boreham J. He said [1985] 1 W.L.R. 50, 57:

"To secure a conviction under section 3 the following must
be proved: (1) that the defendant in fact made off without
making payment on the spot; (2) the following mental
elements - (a) knowledge that payment on the spot was
required or expected of him; and (b) dishonesty; and (c)
intent to avoid payment [sc. 'of the amount due']."

I agree with this analysis. To this the learned judge adds
the following comment:

"If (c) means, or is taken to include, no more than an
intention to delay or defer payment of the amount due it is
difficult to see what it adds to the other elements. Anyone
who knows that payment on the spot is expected or required
of him and who then dishonestly makes off without paying
as required or expected must have at least the intention to
delay or defer payment. It follows, therefore, that the
conjoined phrase 'and with intent to avoid payment of the
amount due' adds a further ingredient - an intention to do
more than • delay or defer - an intention to evade payment
altogether."

My own view, for what it is worth, is that the section thus
analysed is capable only of this meaning. But counsel for the
appellant very properly conceded that, even if it were equivocal
and capable of either meaning, in a penal section of this kind any
ambiguity must be resolved in favour of the subject and against
the Crown. Accordingly the appeal falls to be dismissed either if
on its true construction it means unambiguously that the intention
must be permanently to avoid payment, or if the clause is
ambiguous and capable of either meaning. Even on the assumption
that, in the context, the word "avoid" without the addition of the
word "permanently" is capable of either meaning, which Boreham
J. was inclined to concede, I find myself convinced by his final
paragraph, which reads:

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"Finally, we can see no reason why, if the intention of
Parliament was to provide, in effect, that an intention to
delay or defer payment might suffice, Parliament should not
have said so in explicit terms. This might have been
achieved by the insertion of the word 'such' before payment
in the phrase in question. It would have been achieved by a
grammatical reconstruction of the material part of section
3(1) thus, 'dishonestly makes off without having paid and
with intent to avoid payment of the amount due as required
or expected.' To accede to the Crown's submission" would
be to read the section as if it were constructed in that
way. That we cannot do. Had it been intended to relate
the intention to avoid 'payment' to 'payment as required or
expected' it would have been easy to say so. The section
does not say so. At the very least it contains an
equivocation which should be resolved in favour of the
appellant."

There is really no escape from this argument. There may
well be something to be said for the creation of a criminal
offence designed to protect, for instance, cab drivers and
restaurant keepers against persons who dishonestly abscond without
paying on the spot and without any need for the prosecution to
exclude an intention to pay later, so long as the original act of
"making off" could be described as dishonest. Unlike that in the
present section, such an offence might very well as with the
railway ticket offence, be triable summarily, and counsel for the
appellant was able to call in aid the remarks of Gumming Bruce
L.J. in Corbyn v. Saunders [1978] 1 W.L.R. 400, 403 which go a
long way to support such a view. But, as the Court of Appeal
remarked, that decision was under a different statute and a
differently worded section which did not contain both the
reference to "dishonestly" and the specific intention "to avoid
payment" as two separate elements in the mens rea of the
offence. In order to give the section now under consideration the
effect required the section would have to be remodelled in the
way suggested by Boreham J. in the passage quoted above, or the
word "and" in the ultimate phrase would have to be read as if it
meant "that is to say" so that the required intent would be
equated with "dishonestly" in the early part of the subsection.

Apart from a minor matter not relevant to the judgment
there is nothing really to be added to the judgment delivered by
Boreham J.

The minor matter to which I have just referred was the
disinclination of the Court of Appeal to consider the 13th Report
of the Criminal Law Revision Committee, Section 13 of the Theft
Act 1968 (1977) (Cmnd. 6733), which led to the passing of the Act
of 1978. In accordance with present practice, this, for the
purpose of defining the mischief of the Act but not to construe it,
their Lordships in fact have done. The "mischief" is covered by
paragraphs 18-21 of the report and it is significant that the report
was accompanied by a draft Bill, section 3 of which is in terms
identical with section 3 of the Act, save that the proposed penalty
was three years instead of two. Though we did not use it as an
aid to construction, for the purpose of defining the mischief to be
dealt with by the section, I consider it to be relevant. The
discussion had originated from the decision in Ray v. Sempers



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[1974] AC 370 and the committee defined the mischief in the
following terms (paragraph 18):

"there was general support for our suggestion that where the
customer knows that he is expected to pay on the spot for
goods supplied to him or services done for him it should be
an offence for him to go away without having paid and
intending never to pay." [Emphasis mine.]

From this it is plain beyond doubt that the mischief aimed
at by the authors of the report was precisely that which the Court
of Appeal, construing the section without reference to the report,
attributed to the section by the mere force of grammatical
construction.

In the result I agree with the judgment of the Court of
Appeal and apart from my reference to the Criminal Law Revision
Committee report can add nothing usefully to it. The appeal
should be dismissed with the consequent order for taxation. The
respondent is legally aided without contribution. For the public, as
well as for the hotel, this has been a somewhat expensive
exercise.

LORD SCARMAN

My Lords,

I have had the advantage of reading in draft the speech
delivered by my noble and learned friend, the Lord Chancellor. I
agree with him. For the reasons he has given I also would dismiss
the appeal.

LORD DIPLOCK

My Lords,

I have had the advantage of reading in draft the speech of
my noble and learned friend, the Lord Chancellor. I agree with it
and for the reasons which he gives I would dismiss the appeal.

LORD BRIDGE OF HARWICH

My Lords,

For the reasons given in the speech of my noble and learned
friend, the Lord Chancellor, with which I agree, I would answer
the certified question in the affirmative and dismiss the appeal.

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LORD BRIGHTMAN

My Lords,

I, too, would dismiss the appeal.