Obtaining property by deception

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Obtaining property by deception was formerly a statutory offence in England and Wales and Northern Ireland.

Contents

England and Wales

This offence was created by section 15 of the Theft Act 1968. Sections 15(1) and (2) of that Act read:

  • (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) For the purposes of this section 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.

This offence replaced the offence of obtaining by false pretences, contrary to section 32(1) of the Larceny Act 1916. [1]

Section 15 was repealed on 15 January 2007 by Schedule 3 to the Fraud Act 2006

Liability for offences by corporations

Section 18 of the Theft Act 1968 applied in relation to section 15.

Going equipped for cheat

In section 25 of the Theft Act 1968, the word "cheat" meant an offence under section 15. [2]

By any deception

The deception must be the operative cause of the obtaining of property, and this is a question of fact for the jury to decide, requiring proof that the victim would not have acted in the same way had they known the truth. In R v Laverty [3] 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 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 Metropolitan Police Commissioner v Charles, [4] 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 Director of Public Prosecutions v Ray, [5] 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 [6] 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 section 15 offence, but the defendant can be charged with theft, contrary to section 1, of any property obtained. The Law Commission recommend the creation of a new offence to cover this possibility.

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. [7] However, section 2 of the Theft Act 1968 does not apply to section 15 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 [8] 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.

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 their 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 [9] 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.

Property

Section 34(1) of the Theft Act 1968 confirms that the definition given in section 4(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 sections 4(2) to 4(4) do not apply to section 15. It is therefore possible to obtain land by a deception.

Belonging to another

For these purposes, section 34(1) applies section 5(1) to the section 15 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.

Intention to permanently deprive

The extended meaning given to "intention permanently to deprive" the other of the property given in section 6 of the Theft Act 1968 applies to section 15.

Problem resolved

The offence of obtaining a money transfer by deception, contrary to section 15A of the Theft Act 1968, was specifically enacted to remove the problem caused by R v Preddy and Slade, R v Dhillon. [10] This case held that there no section 15 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.

Northern Ireland

This offence was created by section 15 of the Theft Act (Northern Ireland) 1969. That section was repealed on 15 January 2007 [11] by sections 14 and 15(1) and (4) of, and paragraph 1(c)(i) of Schedule 1 to, and Schedule 3 to, the Fraud Act 2006, subject to the transitional provisions and savings in paragraph 3 of Schedule 2 to that Act.

Visiting forces

This offence was an offence against property for the purposes of section 3 of the Visiting Forces Act 1952. [12]

Related Research Articles

Theft Act of taking anothers property without permission or consent

In common usage, theft is the taking of another person's property or services without that person's permission or consent with the intent to deprive the rightful owner of it. The word is also used as an informal shorthand term for some crimes against property, such as burglary, embezzlement, larceny, looting, robbery, shoplifting, library theft or fraud. In some jurisdictions, theft is considered to be synonymous with larceny; in others, theft has replaced larceny. Someone who carries out an act of or makes a career out of theft is known as a thief.

Robbery Taking or attempting to take something of value by force or threat of force or by putting the victim in fear

Robbery is the crime of taking or attempting to take anything of value by force, threat of force, or by putting the victim in fear. According to common law, robbery is defined as taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear; that is, it is a larceny or theft accomplished by an assault. Precise definitions of the offence may vary between jurisdictions. Robbery is differentiated from other forms of theft by its inherently violent nature ; whereas many lesser forms of theft are punished as misdemeanors, robbery is always a felony in jurisdictions that distinguish between the two. Under English law, most forms of theft are triable either way, whereas robbery is triable only on indictment. The word "rob" came via French from Late Latin words of Germanic origin, from Common Germanic raub "theft".

Theft Act 1968 United Kingdom legislation

The Theft Act 1968 is an Act of the Parliament of the United Kingdom. It creates a number of offences against property in England and Wales. On 15 January 2007 the Fraud Act 2006 came into force, redefining most of the offences of deception.

Grievous bodily harm is a term used in English criminal law to describe the severest forms of assault. It refers to two offences that are respectively created by sections 18 and 20 of the Offences against the Person Act 1861. The distinction between these two sections is the requirement of specific intent for section 18; the offence under section 18 is variously referred to as "wounding with intent" or "causing grievous bodily harm with intent", whereas the offence under section 20 is variously referred to as "unlawful wounding", "malicious wounding" or "inflicting grievous bodily harm".

Dishonesty is to act without honesty. It is used to describe a lack of probity, cheating, lying, or being deliberately deceptive or a lack in integrity, knavishness, perfidiosity, corruption or treacherousness. Dishonesty is the fundamental component of a majority of offences relating to the acquisition, conversion and disposal of property defined in criminal law such as fraud.

A mistake of fact may sometimes mean that, while a person has committed the physical element of an offence, because they were labouring under a mistake of fact, they never formed the required mens rea, and so will escape liability for offences that require mens rea. This is unlike a mistake of law, which is not usually a defense; law enforcement may or may not take for granted that individuals know what the law is.

Theft Act 1978 United Kingdom legislation

The Theft Act 1978 is an Act of the Parliament of the United Kingdom. It supplemented the earlier deception offences contained in sections 15 and 16 of the Theft Act 1968 by reforming some aspects of those offences and adding new provisions. See also the Fraud Act 2006.

Assault occasioning actual bodily harm is a statutory offence of aggravated assault in England and Wales, Northern Ireland, the Australian Capital Territory, New South Wales, Hong Kong and the Solomon Islands. It has been abolished in the Republic of Ireland and in South Australia, but replaced with a similar offence.

In criminal law and in the law of tort, recklessness may be defined as the state of mind where a person deliberately and unjustifiably pursues a course of action while consciously disregarding any risks flowing from such action. Recklessness is less culpable than intentional wickedness, but is more blameworthy than careless behaviour.

"Deception" was a legal term of art used in the definition of statutory offences in England and Wales and Northern Ireland. It is a legal term of art in the Republic of Ireland.

In the English law of homicide, manslaughter is a less serious offence than murder, the differential being between levels of fault based on the mens rea or by reason of a partial defence. In England and Wales, a common practice is to prefer a charge of murder, with the judge or defence able to introduce manslaughter as an option. The jury then decides whether the defendant is guilty or not guilty of either murder or manslaughter. On conviction for manslaughter, sentencing is at the judge's discretion, whereas a sentence of life imprisonment is mandatory on conviction for murder. Manslaughter may be either voluntary or involuntary, depending on whether the accused has the required mens rea for murder.

Possession of stolen goods any crime involving elements of acquiring, possessing, or trafficking in stolen property knowingly

Possession of stolen goods is a crime in which an individual has bought, been given, or acquired stolen goods.

Conspiracy to defraud is an offence under the common law of England and Wales and Northern Ireland.

Obtaining pecuniary advantage by deception was formerly a statutory offence in England and Wales and Northern Ireland. It was replaced with the more general offence of fraud by the Fraud Act 2006. The offence still subsists in certain other common law jurisdictions which have copied the English criminal model.

R v Ghosh [1982] EWCA Crim 2 is an English criminal law case, dealing with dishonesty, deception and theft. It was relevant in prosecutions under, for example, the Theft Act 1968, the Fraud Act 2006, the Social Security Administration Act 1992 and the Immigration and Asylum Act. Much of its effect has been overruled by the Supreme Court in Ivey v Genting Casinos [2017] UKSC 67.

English criminal law

English criminal law concerns offences, their prevention and the consequences, in England and Wales. Criminal conduct is considered to be a wrong against the whole of a community, rather than just the private individuals affected. The state, in addition to certain international organisations, has responsibility for crime prevention, for bringing the culprits to justice, and for dealing with convicted offenders. The police, the criminal courts and prisons are all publicly funded services, though the main focus of criminal law concerns the role of the courts, how they apply criminal statutes and common law, and why some forms of behaviour are considered criminal. The fundamentals of a crime are a guilty act and a guilty mental state. The traditional view is that moral culpability requires that a defendant should have recognised or intended that they were acting wrongly, although in modern regulation a large number of offences relating to road traffic, environmental damage, financial services and corporations, create strict liability that can be proven simply by the guilty act.

Burglary is a statutory offence in England and Wales.

At law, cheating is a specific criminal offence relating to property.

Rape is a statutory offence in England and Wales. The offence is created by section 1 of the Sexual Offences Act 2003:

(1) A person (A) commits an offence if—

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
(3) Sections 75 and 76 apply to an offence under this section.

(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.

Obtaining a money transfer by deception was formerly a statutory offence in England and Wales and Northern Ireland.

References

  1. ↑ Griew, Edward. The Theft Acts 1968 and 1978. Fifth Edition. Sweet and Maxwell. 1986. Paragraph 6-02 and note 2 at page 117. Paragraph 6-08 and note 15 at page 120.
  2. ↑ The Theft Act 1968, section 25(5)
  3. ↑ R v Laverty [1970] 3 All ER 432, 54 Cr App R 435, [1971] RTR 124, CA
  4. ↑ Metropolitan Police Commissioner v Charles [1977] AC 177, [1976] 3 WLR 431, [1976] 3 All ER 112, 63 Cr App R 252, [1977] Crim LR 615, HL, sub nom Commissioner of Police for the Metropolis v Charles.
  5. ↑ Director of Public Prosecutions v Ray [1974] AC 370, [1973] 3 WLR 359, [1973] 3 All ER 131, 117 SJ 663, 58 Cr App R 130, sub nom Ray v Sempers [1974] Crim LR 181, HL, reversing sub nom Ray v Sempers [1973] 1 WLR 317
  6. ↑ R v Button [1900] 2 QB 597, 69 LJQB 901, 83 LT 288, 16 TLR 525, 64 JP 600, 48 WR 703, 44 SJ 659, 19 Cox 598
  7. ↑ R v Greenstein, R v Green [1975] 1 WLR 1353, 119 SJ 742, [1976] 1 All ER 1, sub nom R v Greenstein (Allan), R v Green (Monty), 61 Cr App R 296, [1975] Crim LR 714, CA
  8. ↑ R v Price (R W), 90 Cr App R 409, [1990] Crim LR 200, CA
  9. ↑ R v Seward [2005] EWCA Crim 1941 (11 July 2005)
  10. ↑ R v Preddy and Slade, R v Dhillon [1996] AC 815, [1996] 3 All ER 481, [1996] 3 WLR 255, (1996) 2 Cr App R 524, HL, (10 July 1996) reversing R v Preddy and Slade [1995] Crim LR 564, CA, and R v Dhillon, unreported, CA
  11. ↑ The Fraud Act 2006 (Commencement) Order 2006 (S.I. 2006/3200 (C.112)), article 2
  12. ↑ The Visiting Forces Act 1952, section 3(6) and Schedule, paragraph 3(g) (as inserted by the Theft Act (Northern Ireland) 1969, Schedule 3, Part III)
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