Obtaining pecuniary advantage by deception

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Obtaining pecuniary advantage by deception [1] 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 [2] which have copied the English criminal model.

Contents

England and Wales

Statute

The offence was created by section 16 [3] of the Theft Act 1968. At the time of its repeal it read:

(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) . . .
(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.

This offence replaced the offence of obtaining credit by fraud, contrary to section 13(1) of the Debtors Act 1869. [4]

The elements of the actus reus are similar to the offence of obtaining property by deception:

Obtaining of a pecuniary advantage, s. 16(2)

The expression "pecuniary advantage" was defined by section 16(2). The definition was "exclusive". [5]

Section 16(2)(a)

Section 16(2)(a) read:

(a) any debt or charge for which he makes himself liable or is or may become liable (including one not legally enforceable) is reduced or in whole or in part evaded or deferred; [...]

See Director of Public Prosecutions v Turner [1974] AC 537, [1973] 3 WLR 352, 117 SJ 664, [1973] 3 All ER 124, 57 Cr App R 932, [1974] Crim LR 186, HL, reversing sub nom R v Turner [1973] 1 WLR 653.

In R v Royle, [6] Lord Edmund-Davies described it as "a juridical nightmare". [7] It was repealed by section 5(5) of the Theft Act 1978.

Section 16(2)(b)

Section 16(2)(b) covers the situation in Metropolitan Police Commissioner v Charles [8] (which is described in the article Deception (criminal law)) 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.

"Policy of insurance or annuity contract"

This included a policy or contract that was void due to the mistake induced by the deception. [9]

See the following cases:

  • R v Kovacs, [1974] 1 WLR 370, [1974] 1 All ER 1236, 118 SJ 116, sub nom R v Kovacs (Stephanie Janika), 58 Cr App R 412, [1974] Crim LR 183, CA
  • R v Watkins [1976] 1 All ER 578, Crown Ct
  • R v Waites [1982] Crim LR 369, CA
  • R v Bevan, 84 Cr App R 143, [1987] Crim LR 129, CA
Section 16(2)(c)

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 [10] 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 section 16 if the deception is detected before payment is made. Thereafter, the defendant has obtained payment under section 15. 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 they pick up the money and run out when it becomes obvious the nominated horse will not win.

See the following cases:

  • R v Aston and Hadley, [1970] 1 WLR 1584, [1970] 3 All ER 1045, 55 Cr App R 48, CA
  • R v McNiff [1986] Crim LR 57, CA

Section 16 was repealed on 15 January 2007 by Schedule 3 to the Fraud Act 2006.

Mens rea

There are two elements to the mens rea of this offence:

But there is no need to prove an intention to permanently deprive.

Liability for offences by corporations

Section 18 of the Theft Act 1968 applied in relation to section 16.

Mode of trial

As to mode of trial from 1968 to 1977, see paragraph 11 of Schedule 1 to the Magistrates' Courts Act 1952 (as substituted by section 29(2) of the Theft Act 1968)

From 1977, obtaining pecuniary advantage by deception was triable either way. [11]

Northern Ireland

This offence was created by section 16 of the Theft Act (Northern Ireland) 1969.

Section 16(2)(a) was repealed by article 7(4) of the Theft (Northern Ireland) Order 1978 (S.I. 1978/1407 (N.I. 23)).

Section 16 was repealed on 15 January 2007 [12] by sections 14(1) and 15(1)(4) of, and paragraph 1(c)(iii) of Schedule 1 to, and Schedule 3 to, the Fraud Act 2006. The repeal was subject to transitional provisions and savings contained 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. [13]

Related Research Articles

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.

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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 mental element. 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.

Common assault is an offence in English law. It is committed by a person who causes another person to apprehend the immediate use of unlawful violence by the defendant. In England and Wales, the penalty and mode of trial for this offence is provided by section 39 of the Criminal Justice Act 1988.

"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.

There are a number of court cases by the name of R. v. Smith:

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

Defamatory libel was originally an offence under the common law of England. It has been established in England and Wales and Northern Ireland. It was or is a form of criminal libel, a term with which it is synonymous.

Interpretation Act 1978 United Kingdom legislation

The Interpretation Act 1978 is an Act of the Parliament of the United Kingdom. The Act makes provision for the interpretation of Acts of Parliament, Measures of the General Synod of the Church of England, Measures of the Church Assembly, subordinate legislation, "deeds and other instruments and documents," Acts of the Scottish Parliament and instruments made thereunder, and Measures and Acts of the National Assembly for Wales and instruments made thereunder. The Act makes provision in relation to: the construction of certain words and phrases, words of enactment, amendment or repeal of Acts in the Session they were passed, judicial notice, commencement, statutory powers and duties, the effect of repeals, and duplicated offences.

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

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.

Assault with intent to resist arrest is a statutory offence of aggravated assault in England and Wales and Northern Ireland and the Republic of Ireland.

Perjury Act 1911 United Kingdom legislation

The Perjury Act 1911 is an Act of the Parliament of the United Kingdom. It creates the offence of perjury and a number of similar offences.

The expression sexual intercourse has been used as a legal term of art in England and Wales. From its enactment to its repeal on the 1 May 2004, section 44 of the Sexual Offences Act 1956 read:

Where, on the trial of any offence under this Act, it is necessary to prove sexual intercourse, it shall not be necessary to prove the completion of the intercourse by the emission of seed, but the intercourse shall be deemed complete upon proof of penetration only

References

  1. ↑ This offence is referred to as "obtaining pecuniary advantage by deception" by the marginal notes to section 16 of the 1968 and 1969 Acts and by Archbold Criminal Pleading, Evidence and Practice, 1999, para. 21-216 at p. 1809 (in the statement of offence in a specimen indictment). It is referred to as "obtaining a pecuniary advantage by deception" by Archbold at para 21-214 and by Edward Griew, The Theft Acts 1968 and 1978, Fifth Edition, Sweet and Maxwell, 1986, Chapter 9.
  2. ↑ For example, Hong Kong, see s.18 Theft Ordinance (Cap. 210)
  3. ↑ Text of section 16 as enacted, Revised text of section 16
  4. ↑ Archbold Criminal Pleading, Evidence and Practice, 1999, para. 21-214 at p. 1808
  5. ↑ Archbold Criminal Pleading, Evidence and Practice, 1999, paras. 21-214 and 21-219 at pp. 1808 and 1809
  6. ↑ R v Royle [1971] 1 WLR 1764, 115 SJ 910, [1971] 3 All ER 1359, 56 Cr App R 131, CA
  7. ↑ R v Royle, 56 Cr App R 131 at 136, CA
  8. ↑ 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.
  9. ↑ R v Alexander [1981] Crim LR 183, CA
  10. ↑ R v Callender [1993] QB 303, [1992] 3 WLR 501, [1992] 3 All ER 51, 95 Cr App R 210, [1992] Crim LR 591, CA
  11. ↑ For the period from 1977 to 1980, see the Criminal Law Act 1977, section 16(2) and Schedule 3, paragraph 28. For the period from 1980 onwards, see the Magistrates' Courts Act 1980, section 17(1) and Schedule 1, paragraph 28. This offence was not mentioned in paragraph 20 of Schedule 2 to the Criminal Law Act 1977 (which listed offences made triable either way by that Act that were previously triable only on indictment). This amounts to a statement that this offence was a hybrid offence prior to the coming into force of section 16 of, and Schedule 3 to, that Act.
  12. ↑ The Fraud Act 2006 (Commencement) Order 2006 (S.I. 2006/3200 (C. 112), article 2
  13. ↑ 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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