Deception offences
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In English law, the main deception offences are defined in the Theft Act 1968 (TA68), the Theft Act 1978 and the Theft (Amendment) Act 1996. This page deals only with ss15 and 16 TA68. The same definition of deception applies in all the relevant offences.
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[edit] Deception and theft
There is an inevitable overlap between the general offence of s1 theft and these offences because they cover both general and specific situations in which the defendant will appropriate property by using some form of deception. Deception offences are separately defined to avoid any problems that might arise when the "victim" consents to the taking. Because the effect of the deception may be to persuade the owner to pass title to the goods, albeit on a voidable title, those goods may not "belong to another" at the time of the appropriation. In fact, strong authority has emerged that this is not a real problem because an appropriation is the "assumption" of the rights of ownership, whether that assumption is effective in law: see R v Gomez (1993) AC 442 [1]. This case has been criticised because it apparently eliminates the need for the s15 offence. Yet the deception offences are preserved and are the preferred charges in situations involving deceptive behaviour both because theft carries a lower minimum sentence, and as a matter of general principle, because a charge should describe what the defendant actually did in the simplest and most direct form.
[edit] Obtaining property by a deception
s15 TA68 states:
- (1) A person who by any deception dishonestly obtains property belonging to another, with intent to permanently depriving the other of it shall on conviction on indictment be liable to imprisonment for a term not exceeding ten years.
- (2) ...a person is to be treated as obtaining property if he obtains ownership, possession or control of it and 'obtain' includes obtaining for another or enabling another to obtain or to retain.
- (3) the s6 definition of intention to permanently deprive applies to the s15 offence.
[edit] By any deception
The deception must be the operative cause of the obtaining of property, and this is a question question of fact for the jury to decide, requiring proof that the victim would not have acted in the same way had he or she known the truth. In R v Laverty [1970] 3 All ER 432 although the defendant put new number plates and a new chassis number on a car, the victim bought the car because he thought Laverty was the owner. There was no proof that that the false identification plates were the cause of the obtaining. This would suggest that if the victim admits not caring whether the defendant's representation was true or false, an acquittal must follow. But, in MPC v Charles (1977) AC 177, a causal link was implied even though the victim admitted not considering the question of whether the bank would or would not honour the cheque. Similarly, in R v Talbott (1995) CLR 396 the defendant gave false details and obtained housing benefit. She was actually entitled to the benefit, but causation was established by the fact that the benefit officer would not have paid her if she had known the defendant was lying. This "constructive" deception is necessitated because many shop assistants and officials may be personally indifferent as to whether the defendant is honest or not. To clarify this aspect of the law, the Law Commission recommend the introduction of a specific offence to cover the use of cheque guarantee and payment cards to remove the need for any implied representation to affect the mind of the particular person accepting the use of the card. This would identify the bank as the true victim.
The deception must precede the obtaining of property. In DPP v Ray (1974) AC 370, the defendant had already obtained the meal before he made the representation. This is an issue of causation so that it can be shown that the deception operated on the mind of the person alleged to be deceived. In R v Coady (1996) CLR 518, the defendant went to two self-service petrol stations. In the first, he served himself and then told the attendant to charge his employer which he was not entitled to do. In the second, he may have made this representation to the attendant before petrol was released to the pump. The convictions were quashed because there was no evidence that the first representation came before the obtaining of the petrol and the judge had failed to direct on the requirement that the deception operate on the mind of the attendant in respect of the second representation. Further, the deception must not be too remote from the obtaining, and/or there must be no break in the chain of causation. In R v Button (1900) 2 QB 597 the defendant falsely represented that he was not a good runner and so obtained a better handicap than he deserved for the race which he won. He was arrested as he attempted to collect the prize but the deception merely gave him the opportunity to run from an advantageous position, whereas the cause of the attempt to collect the prize was that he had won the race.
The deception must operate on a human mind for the causation element to be proved. The fact that a machine may respond to the insertion of a coin, card or token, or that a computer may give a programmed response to data entry does not amount to a s15 offence, but the defendant can be charged with s1 theft of any property obtained. The Law Commission recommend the creation of a new offence to cover this possibility.
[edit] Dishonestly
The wording of the statute is highly significant because it is by a deception dishonestly and not by a dishonest deception which requires the dishonesty to be proved separately from the deception. Otherwise the dishonesty would be implied by the fact that the deception was made knowingly: see R v Greenstein (1975) 1 WLR 1353. However, the s2 TA68 provisions do not apply to s15 although the test derived from R v Ghosh [1982] QB 1053 may apply if the defendant claims to believe that he acted in a way matching the ordinary person's idea of honesty, i.e. a defendant will be dishonest where he realised that he was doing something that reasonable and honest people would regard as dishonest. But R v Price (1990) 90 Cr. App R 409 held that this test was both unnecessary and potentially misleading in the majority of cases. The Law Commission has debated whether the requirement to prove dishonesty makes obtaining a conviction more difficult, and whether the law should be reformed to make the offences conduct based. The conclusion was that juries are not confused by the need to consider dishonesty as a separate element from deception and that this aspect of the law does not need reform.
[edit] Obtains
In most cases, the defendant will obtain ownership, possession, and control of the property, but the obtaining of any one of these will be sufficient. So, under the Sale of Goods Act, title to goods may pass before possession or control is delivered, or possession may pass before title, or the defendant may obtain control alone, depending on the wording of the contract. Usually, the defendant will be acting in his or her own right to obtain the goods, but the offence is also committed where the defendant obtains property for another or enables another to obtain or retain. Thus, the offence might be committed where the "victim" is induced to transfer ownership of property to another or to agree not to enforce his right to recover goods from that other. In R v Seward (2005) EWCA Crim 1941 the defendant was acting as the "front man" in the use of stolen credit cards and other documents of identification to obtain goods. This was a role not unlike that of the "mule" in drug importation cases because the front man takes the risk of going into shops where CCTV cameras may clearly identify him. He obtained goods to the value of £10,000 for others who were unlikely ever to be identified. The Court of Appeal considered sentencing policy for deception offences involving "identity theft" — an increasingly common phenomenon. The defendant had a drug problem and it was argued that a drug treatment and testing order might be the more appropriate response, but the court concluded that a prison sentence was required. Henriques J. said at para 14:
- "Identity fraud is a particularly pernicious and prevalent form of dishonesty calling for, in our judgment, deterrent sentences."
[edit] Property
s34(1) TA 1968 confirms that the definition given in s4(1) applies, so property is.:
- money and all property, real or personal, including things in action and other intangible property.
But the limitations on what can be stolen in ss4(2)-4(4) do not apply to s15. It is therefore possible to obtain land by a deception.
[edit] Belonging to another
For these purposes, s34(1) applies s5(1) to the s15 offence, so:
- Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest.
[edit] Intent permanently to deprive
The extended meaning given to "intention permanently to deprive" the other of the property given in s6 TA68 applies to s15.
[edit] Problem resolved
The Theft (Amendment) Act, 1996 has added s15A to TA68 which provides that it is an offence to:
- dishonestly obtain a money transfer for oneself or another by deception.
This applies no matter what the means of transfer and credit/debit state of the two accounts, and was specifically enacted to remove the problem caused by R v Preddy (1996) 2 Cr. App. R. 524. This case held that there no s15 offence was committed when the defendant caused transfers between the victim's and his own bank account by deception. This arises because of the legal relationship between a bank and its customer. The account is a chose in action, i.e. a debt owed by the bank to the customer or vice versa. Thus, when the "transfer" took place, one debt owed by the bank to its client was reduced, and a second debt in the same amount was created, Thus, nothing formerly belonging to the victim was obtained by the defendant.
[edit] Obtaining a pecuniary advantage
s16 TA68 states that:
- (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.
- (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) Repealed by s5(5) Theft Act 1978;
- (b) he is allowed to borrow by way of overdraft, or to take out any policy of insurance or annuity contract, or obtains an improvement of the terms on which he is allowed to do so; or
- (c) he is given the opportunity to earn remuneration in an office or employment, or to win money by betting
- (3) For the purposes of this section "deception" has the same meaning as in section 15 of this Act.
The elements of the actus reus are similar to the offence of obtaining property by deception: there must be a deception – this has the same meaning as for s.15 (according to s.16(3) TA 1968) there must be causation – as above there must be the obtaining of a pecuniary advantage. The only definition of "pecuniary advantage" is offered in s16(2): (a) (repealed by TA 1978); (b) a person is allowed to borrow by way of overdraft, or to take out a policy of insurance or annuity contract, or obtains an improvement of the terms on which he is allowed to do so, or (c) a person is given the opportunity to earn remuneration or greater remuneration in an office or employment, or to win money by betting.™ Section 16(2)(b) covers the situation in MPC v Charles above where writing the cheque backed by a card obtains an unauthorised overdraft even though the deception operates on the mind of the person accepting the cheque and not on the mind of a bank officer. In most cases, the granting of credit may be machine-based with reference to a bank officer only being made when larger sums of money are involved. Where the pecuniary advantage is the obtaining of an overdraft facility at a bank, it is only necessary to show that the facility was granted, not that the defendant actually used the facility.
Section 16(2)(c) clearly covers those people who claim to have qualifications which are in fact false, and because of these qualifications they are employed. Further, according to R v Callender (1992) CLR 591 where a self-employed accountant made deceptions, the section was held to apply equally to employment as an independent contractor and employment as a servant. The defendant is charged under s16 if the deception is detected before payment is made. Thereafter, the defendant has obtained payment under s15. As to betting shops, if the defendant goes into the shop just before the horse race is due to start, places the bet and very slowly begins to count out the stake money as the commentary relays the progress of the horses, the opportunity to win has been obtained and the defendant can be convicted if he or she picks up the money and runs out when it becomes obvious that the nominated horse will not win.
[edit] Mens rea
There are two elements to the mens rea of this offence:
- there must be a deliberate or reckless deception (see above)
- the defendant must be dishonest (see above).
But there is no need to prove an intention to permanently deprive.
[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
- Law Commission Consultation Paper No.15. Fraud and Deception. (October, 1999) [2]
- Griew, Edward. Theft Acts 1968 & 1978, Sweet & Maxwell: London. 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.
- Smith, J. C. Obtaining Cheques by Deception or Theft (1997) CLR 396
- Smith, J. C. :Stealing Tickets (1998) CLR 723
