Obtaining Services Dishonestly

Version 1Page 109/15/2018

Obtaining services dishonestly

Key definitions

Obtains: Receives a service which would otherwise incur a cost.
Services: Made available by the V on the basis that payment has been, is being or will be made for or in respect of them.
By deception: No act of deception is needed, and there is no need to prove that the service provider has been deceived as long as it is done dishonestly to avoid payment for the D or another.
Avoids payment in full or part: This means that the defendant must intend to avoid payment for the service provided in full or in part.

The offence of obtaining services dishonestly is a direct replacement for the offence under the Theft Act 1978, s1 of obtaining services by deception. Examples include: someone who climbs over the wall of a football ground to watch the match without paying, or someone who seeks free NHS treatment to which they are not entitled. Elements of the offence under the Fraud Act 2006, s2 are that the defendant: obtains for himself or another services dishonestly knowing the services are made available on the basis that payment has been, is being or will be made for or in respect of them or that they might be and avoids or intends to avoid payment in full or in part.

Key Facts

1. Involves intending to avoid full/part payment for a service that would have incurred a cost.
2. Triable either way offence
3. Max sentence is 5yrs

The definition of obtaining services by deception

Section 11 of the Act itself helps clarify the definition:

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).

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.

It should be noted that, in many cases, the defendant will also have committed an offence under s2 of fraud by making a false representation, the false representation being that payment will be made or, where only part payment has been made, will be made in full.

1 Obtains for himself or another

Unlike the offence under s2, this offence is a result crime, as there must be proof that the services have actually been obtained. No act of deception is needed, and there is no need to prove that the service provider has been deceived. This is why climbing the wall to see the football match can form the offence. He is accessing a service (the football match, entertainment) that is normally provided only on payment of a fee (the ticket price).

It should also be noted that the offence can be committed where the person performing the act does not do so for his own benefit. This could, therefore, possibly include lifting someone over a fence to get into a music festival.

2 Services

The offence applies to services that are ‘made available on the basis that payment has been, is being or will be made for or in respect of them’. This means that where a service is being provided without charge, there cannot be an offence under this section. The word ‘services’ is not defined within the Act, but the Crown Prosecution Service give a number of examples of services that would fall within this section:

? Obtains chargeable data or software over the internet without paying.

? Orders a meal in a restaurant knowing he has no means to pay.

? Attaches a decoder to his TV to enable him to access chargeable satellite services without paying.

? Uses the services of a members’ club without paying and without being a member.

These examples raise some interesting points. Chargeable data would include music or video downloads; ordering the meal without the means to pay would also suggest an offence under s2; accessing the chargeable satellite services would presumably mean there was a separate offence each time a service was accessed; if a person got access to the club, but did not use the services (for example a gym), would there still be an offence if the sole purpose of access was to get warm on a cold day?

There is one case that helps with respect to banking services – Sofroniou(2004). This is a case of identity theft. The defendant 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. The Court of Appeal decided that for there to be a service within the meaning there had to be ‘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’. This understanding would not automatically exist between a bank and its account holders. It would not apply to free banking. On the actual facts the court found that there was a sufficient understanding as to payment, as interest would be payable on the loans and credit card balances that went beyond any interest free period. This seems a rather artificial distinction in terms of the reality of what has gone on. In any event, since the whole purpose of identity fraud is to leave interest accruing on loans and credit cards, etc, it seems likely that identity fraudsters could be prosecuted under s11.It should, therefore, be noted that if the banking services obtained are free, s11 cannot be the appropriate offence. However, the same restriction does not apply to s2.

3 Dishonestly

This is exactly the same use of the Ghosh test as there was for s2. It is worth repeating that the examples of things that are not dishonest in s2 of the Theft Act 1968 do not apply here.

4 Knowing the services are made available on the basis that payment …

In most cases, this will not be a problem as it is self-evident that the service is one for which payment is normally made either in advance of the service, at the time of the service or afterwards. The defendant must get the service either by not paying for it or not paying in full if there is to be a conviction under s11.

5 Avoids or intends to avoid payment in full or in part

The key aspect here is that whilst avoiding payment is the gist of the offence, it is sufficient that the defendant intends to avoid payment. This means that the defendant must intend to avoid payment for the service provided in full or in part and have that intention at the time that the service is obtained. Presumably, with banking services, this is a continuing act and so a later intention, whilst the service continues, will be sufficient. It would appear that the intent must be never to pay the sum involved. This means that an honest belief that credit is being given will mean the offence is not being committed. This would be consistent with the existing law with respect to making off without payment and the case of Allen (1985) .

In that case, Allen, booked a room at a hotel and finally left on 11 February 1983 without 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. He said he had acted honestly and had genuinely expected to pay the bill from the proceeds of various business ventures. The House of Lords agreed, and stated:

‘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.’

Activity

In the following situation, consider whether Ahmed has committed blackmail or not:

Ahmed is interviewed on getting Roger to pay him £300 a month for ‘protection’ money for allowing Roger to run an illegal cannabis factory.

Rita sends an e-mail to Zak telling him that she will tell his wife about his affair with her unless he gives her a gold Rolex watch and one more night of passion. Unknown to Rita Zak doesn’t receive the e-mail as he is away on business and Rita gets impatient and tells his wife.

Answer the following questions:

Can be demand by post or electronically – in both cases the offence is complete as soon as demand made, i.e. at posting or sending.

In the situation whereby a demand has been made by post, the demand will be deemed to have been made the moment that it is posted. This means that the demand will have been made before the individual upon whom the demand is placed was even aware of it occurring. Accordingly there is no requirement that the victim be aware of the demand for it to arise.