Parliamentary Records Admiisible
The defendant had left his hotel without paying, and was charged with making off without payment. He said he intended to pay the bill later after making some business transactions. The judge had directed the jury that the intent to avoid payment need not be permanent.
Held: The House could look to the Law Commission report which had led to the Act in order to determine the mischief, but not to interpret the section as enacted. On the words of the section an intention to deprive had to be permanent in order to come within the section. The appeal succeeded.
The court allowed the defendant’s appeal after he was convicted of leaving his hotel without making payment, and certified a question for the House of Lords: ‘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.’
Held: The Court of Appeal judgment was approved.
Boreham J said: ‘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’].’ and
”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.’ and
‘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.’
Lord Hailsham LC, Lord Scarman, Lord Diplock, Lord Bridge of Harwich, Lord Brightman
[1985] 3 WLR 107, [1984] UKHL 6, [1985] AC 1029, [1984] 2 All ER 641, [1985] 1 WLR 50
Bailii
Theft Act 1978 3
England and Wales
Citing:
Cited – Director of Public Prosecutions v Ray HL 25-Jul-1973
The defendant ordered a meal at a restaurant believing his companion would lend him the money to pay. He later decided to seek to avoid payment and took a opportunity to escape.
Held: The appeal was allowed and the conviction restored. The . .
Lists of cited by and citing cases may be incomplete.
Crime
Leading Case
Updated: 01 November 2021; Ref: scu.198902
