Deception (criminal)
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For the purposes of English law, deception is defined in s15(4) Theft Act 1968 and applies to the deception offences in the Theft Act 1968, and to the Theft Act 1978 and the Theft (Amendment) Act 1996.
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[edit] Deception defined
s15(4) provides 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.
[edit] Deliberate or reckless
A deception will be deliberate when the defendant knows that what he represents as true is untrue. This is predominantly a subjective test, matching the general approach to establishing intentional behaviour. The test of recklessness is also predominantly subjective to show that the defendant is aware that what is represented may or may not be true, excluding the extended meaning of recklessness in R v Caldwell [1982] AC 341.
[edit] Words or conduct
Deceptions are most commonly made by saying or not saying something significant, as in the advance fee fraud in which the defendant tells the victim that he is a rich person who needs discreetly to move money abroad and would like to use the victim's bank account in return for a percentage of the money transferred. But conduct can also imply certain facts which are untrue. Thus, wearing a particular uniform represents that the person is employed in that occupation, or writing a cheque supported by a cheque card represents that he writer has actual authority from the bank to use the card and that the bank will honour the cheque (see MPC v Charles (1977) AC 177). If the defendant's words or conduct innocently represent something which later becomes untrue, or the defendant becomes aware that the "victim" has made a mistake, he or she is under an obligation to correct the misunderstanding, and the failure to do so can amount to a deception. In DPP v Ray (1974) AC 370 where, after eating, the defendant decided not to pay for a meal in a restaurant and so continued to sit quietly, lulling the waiters into believing that payment would be made in due course, and thereby obtained the opportunity to leave without paying. Consequently, silence or an omission can be a continuing representation that nothing material has changed and so be a deception. This reasoning has also been applied to the offence of obtaining a service by deception under s1 Theft Act 1978). In R v Rai (2000) CLR 192 the defendant applied for a grant to adapt the house of his infirm mother. After the work had commenced, he failed to inform the local authority that his mother had died and thereby obtained the completion of the work. His conduct, taken as a whole, amounted to a continuing representation that she was alive.
[edit] Fact or law
Most deceptions will relate to actual or supposed facts, or to an existing state of affairs, but this must be distinguished from a false statement of opinion which, no matter how persuasive, is not a deception. The situations included are where the defendant represents that counterfeited goods are the genuine items, or misrepresents his or her identity (e.g. R v Barnard (1837) 7 CP. 784 where the defendant represented that he was a student to an Oxford bookshop to qualify for their scheme of discounting books to students), or asserts that an envelope contains money. Statements may appear equivocal but still be a deception. Thus, in R v King [1979] CLR 279 the defendant admitted that the mileage might not be correct when selling a car. He had actually altered the odometer so this statement was true, but he was properly convicted because a second statement was implied by which the defendant claimed not to know whether the odometer was correct and which was false.
Similarly, a man dressed as a police officer who instructs someone to act in a particular way because the law requires it, or a lawyer or accountant who relies on their professional status to mislead a client as to the law for their private benefit, will deceive even though the general policy of English law is ignorantia juris non excusat, i.e. the Latin for ignorance of the law does not excuse and so everyone is presumed to know what the law is.
[edit] Present intentions
In DPP v Ray the defendant who sits in a restaurant impliedly represents that he or she intends to pay for the meal. This is a representation as to present intention and it would be a deception whether the defendant has sufficient money to pay. It is distinguishable from the defendants who hide their money so that they can represent an inability to pay (a misrepresentation as to fact).
[edit] References
- Allen, Michael. Textbook on Criminal Law. Oxford University Press, Oxford. (2005) ISBN 0-19-927918-7.
- Criminal Law Revision Committee. 8th Report. Theft and Related Offences. Cmnd. 2977
- Griew, Edward. Theft Acts 1968 & 1978, Sweet & Maxwell. ISBN 0-421-19960-1
- Ormerod, David. Smith and Hogan Criminal Law, LexisNexis, London. (2005) ISBN 0-406-97730-5
- Smith, J. C. Law of Theft, LexisNexis: London. (1997) ISBN 0-406-89545-7.
