Vincent, R v

Facts

The appellant stayed at two hotels and left without paying his bills. His case was that he had made arrangements with the proprietors under which he would pay when he was able to do so, so that he was not expected to pay on leaving. He was charged with making off without payment contrary to s 3 of the Theft Act 1978.

History

He was convicted and appealed against conviction, challenging the judge's directions on whether payment on the spot was required or expected.

Issue

Whether payment on the spot is required or expected, within s 3(1) of the Theft Act 1978, where the creditor has agreed to defer payment, and whether it matters that the agreement was obtained by deception.

Held

Appeal allowed; conviction quashed, because the jury had not been properly directed on the effect of an agreement to defer payment.

Ratio

• Whether payment on the spot is required or expected is judged at the time the defendant makes off. If the creditor has agreed to defer payment, payment on the spot is not then expected, and that remains so even where the agreement was induced by the defendant's deception; the offence under s 3 is not committed.

Key reasoning

• Section 3 is aimed at the defendant who leaves without paying when he is expected to pay there and then; its terms are concerned with the actual state of expectation, not with whether that expectation ought to have existed.
• An agreement to defer payment, however obtained, removes the expectation of payment on the spot. Reading in a qualification that a dishonestly obtained agreement should be disregarded would rewrite the section.
• Where an agreement to defer has been obtained by deception, the appropriate charge lies under the deception offences, such as obtaining the evasion of a liability by deception under s 2 of the Theft Act 1978, rather than under s 3.

Where it fits in the module

In the property offences topic, Vincent shows how the elements of a specific offence can produce gaps that the general dishonesty offences must fill. It is read alongside R v Allen [1985] AC 1029, which requires an intention to avoid payment permanently, to show the narrowness of s 3, and it illustrates why the overlapping and gap-ridden structure of the deception offences led to the Fraud Act 2006.

Criticisms

• The result allows a defendant to escape s 3 by the very dishonesty that makes his conduct blameworthy, which seems perverse if the offence exists to protect those who supply goods and services on the expectation of immediate payment.
• On the other hand, the decision respects the wording of the statute and avoids turning s 3 into a general deception offence, leaving deception to the offences designed for it.
• The case highlights the practical cost of a fragmented scheme of offences, where the prosecution's choice of charge, rather than the defendant's culpability, determines liability.