Case No: 2000/1728/W3
Neutral Citation Number: [2001] EWCA Crim 295
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL

Friday 16th February 2001

B e f o r e :

LORD JUSTICE PILL
MRJUSTICE PENRY-DAVEY
and
HIS HONOUR JUDGE METTYEAR

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	R		
	
-  v  -		
	
Christopher James Edward VINCENT		

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(Transcript of the Handed Down Judgment of
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Mr Giles Curtis-Raleigh appeared for the Crown

Mr John Swain appeared for the Appellant

Judgment
LORD JUSTICE PILL:

1.	On 25 January 2000 in the Crown Court at Reading before Her Honour Judge Mowat and a jury Christopher James Edward Vincent was convicted of two offences of making off without payment, contrary to section 3(1) of the Theft Act 1978 (“the 1978 Act”). He was made subject to community service orders totalling 100 hours and was ordered to pay sums by way of compensation. He appeals against conviction by leave of the full court.

2.	In the Autumn of 1998, the appellant stayed for a week at the Langton House Guest House in Windsor and shortly afterwards for a month at the Bricklayers’ Arms, Windsor, referred to for convenience as the hotels. He left both hotels without paying his bill in full, the bill being almost £300 at Langton House and almost £1,000 at the Bricklayers’ Arms. In the course of his stay he had made a part payment at the Bricklayers’ Arms.

	Section 3 of the 1978 Act provides:

“(1)	Subject to subsection (3) below, a person who, knowing that payment on the spot for any goods supplied or service done is required or expected from him, dishonestly makes off without having paid as required or expected and with intent to avoid payment of the amount due shall be guilty of an offence.

(2)	For the purposes of this section ‘payment on the spot’ includes payment at the time of collecting goods on which work has been done or in respect of which service has been provided.

(3)	Subjection (1) above shall not apply where the supply of the goods or the doing of the service is contrary to law, or where the service done is such that payment is not legally enforceable.

(4)	Any person may arrest without warrant anyone who is, or whom he, with reasonable cause, suspects to be, committing or attempting to commit an offence under this section.”

4.	Detailed evidence was given in the course of a three day trial but it is not necessary to set it out in great detail having regard to the legal point which arises. It is accepted on behalf of the appellant that, in the case of hotel bills, the expectation normally is that they will be paid before the customer leaves the premises. It is accepted that there were discussions between the appellant and the proprietors of the hotels as to when payment would be made. The appellant claimed to be waiting for money due to him from a newspaper and from a television company for work done by him. There was an issue of fact as to whether, in the case of each hotel, an agreement was made which negated the usual expectation that the bill would be met on departure. The prosecution case was that no such agreement was made. The defendant also denied dishonesty and claimed that he had no intention of permanently avoiding payment. By convicting the appellant, the jury plainly decided that issue against him and it is not that finding which is challenged in this appeal.

5.	In her summing-up, the judge summarised the appellant’s case in this way:

“As far as he was concerned he left both these places having made financial arrangements to pay, although he accepted that all the hotels normally expect and require payment when you check out. … To sum it up, what he said was: ‘In both the Langton House and the Bricklayers’ Arms the fact that in both places I’d communicated my difficulties and as far as I was concerned I’d made a commercial financial arrangement to pay when I could. I was never asked for it when I left, given the run up to my departure the normal circumstances did not apply and I always intended to pay when I could.”

6.	In R v Allen [1985] AC 1029 the point at issue was a different one namely whether the attempt to avoid payment referred to in the section must be an intent permanently to avoid payment or to avoid payment altogether or, on the other hand, merely an attempt to delay or defer payment. It was held in the House of Lords that the former intent had to be proved. In the course of his speech, with which the other members of the House agreed, Lord Hailsham of St Marylebone LC expressed agreement with the analysis of the section set out in the judgment of the Court of Appeal in that case:

“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’].”

That formulation is not challenged in this appeal. Moreover, it is common ground that the requirement set out under (a) is a discrete requirement and is not governed by the later words. No dispute arises upon the expression “on the spot”. The issue is whether, when the appellant left the premises, payment was at that time “required or expected from him”. For the respondent, it is submitted that payment was expected. The acquiescence of the proprietors in the appellant’s departure, by not exercising the power of arrest expressly provided in the section or otherwise preventing his departure, did not defeat the expectation. The appellant contends that the expectation was defeated by the “financial arrangements” he made with each of the proprietors. The agreements are claimed to have been made well before the moment of departure.

7.	A further point, and it is the point on which this particular case turns, arises if the jury conclude that an agreement did or may have defeated the expectation. The respondent contends that, even if there was an agreement to defer payment, that agreement was of no effect for present purposes because it was dishonestly obtained by the appellant. The expectation in section 3(1) can be defeated only by an agreement honestly made.

8.	The section has been subjected to considerable academic comment. It was intended to provide a simple and straightforward way of dealing with people who having consumed a meal in a restaurant, or filled the tank of a car with petrol, or having reached the destination in a taxi, decamp without paying [Smith and Hogan, Criminal Law, 9th Edn, 1999,  p 585]. Difficulties had arisen in such cases when charged as theft or deception for example where the dishonest intent was formed after the services had been provided (see also Edwards v Ddin [1971] WLR 942). In articles and notes in the Criminal Law Review, Professor Sir John Smith, Professor John Spencer, Mr Francis Bennion and Mr George Syrota have debated the implications of this apparently straightforward subsection though the specific issue in this case has not been considered directly.  (Criminal Law Review 1979, 1980, 1982, 1983 and 1993). In its use of colloquial expressions, such as “on the spot” and “making off” this section is unusual.

9.	The judge gave these directions in her summing-up:

“Anyway, it is a matter for your to decide whether the Langton proprietors required or expected payment on checkout and whether the defendant know that. If there was or may have been a genuine agreement in good faith on both sides to postpone the requirement and expectation for payment then the prosecution have not proved that payment on the spot was required or expected. They haven’t proved that element of the case. But, members of the jury, there is a caveat to that. If you were of the view, and you were sure of this, that the Langton House proprietors’ agreement to postpone payment had been brought about by Mr Vincent dishonestly conning and manoeuvring them into having to agree that, then he could not be heard to say that there was a proper agreement to postpone the expectation and requirement for payment. If there was no genuine agreement in good faith on both sides to postpone the requirement and expectation for payment you must revert to the normal requirement or expectation in a guesthouse like that that payment on the spot will be made. Does that make sense? I hope.”

10.	In relation to the Bricklayers’ Arms, the judge referred to the alleged agreement and stated:

“So, on the Crown’s evidence, looking at it generally, there is no evidence of any agreement to let him pay later after leaving. But the defendant says that he told Antoinette (one of the barmaids) that he was checking out and gave her his keys and she didn’t ask him for payment then and there. If you think this is or may be true than the normal expectation and requirement of payment on checking out was varied, unless of course once again you were to come to the conclusion that in relation to the Bricklayers’ Arms staff the agreement to give him some leeway and postpone the requirement and request for payment had been brought about by conning and manoeuvring by the defendant who at the time he left never intended to pay at all.”

11.	We have come to the conclusion that those paragraphs involved a misdirection. Section 3(1) is indeed intended to create a simple and straightforward offence. In circumstances where an agreement is alleged to have been made a considerable time before payment would normally be expected, that agreement is capable of defeating the expectation. When the customer “makes off” payment is not expected from him. (The same point might be put on the basis that there was no “making off”, giving that expression its ordinary meaning which may suggest a surreptitious departure.) In circumstances such as these, the section does not in our view require or permit an analysis of whether the agreement actually made was obtained by deception. The wording and purpose of the section do not contemplate what could be a complex investigation of alleged fraud underlying the agreement. If the expectation is defeated by an agreement, it cannot be said to exist. The fact that the agreement was obtained dishonestly does not reinstate the expectation. While the customer would be liable to be charged with obtaining services by deception, if he continued to stay at the hotel with that dishonest intention, he would not infringe section 3. 

12.	In taxi or restaurant cases, it would be more difficult for a customer to establish an agreement which defeated the expectation. The expectation may still exist if a customer leaves a restaurant on the pretext that he is going to get his wallet. The restauranteur’s acquiescence in that departure, by not exercising a power of arrest, would not necessarily remove his expectation and the jury could be directed accordingly. The present circumstances were however different, if the appellant was believed, and the usual expectation of payment on the spot was removed by agreement.

13.	We quite understand the judge’s wish to close a loophole which would permit a fraudster to avoid a conviction under section 3 by deceiving the service provider into making an agreement with him. We accept that the direction to the jury made sense, to borrow the judge’s expression, in that its effect must have been clear to them.

14.	The judge’s approach, however, introduces a complexity into the section which its wording and purpose do not in our view permit. The section deals with a limited, though important, set of situations which do not include the fraudulent course of conduct contemplated by the judge in the parts of her summing-up we have cited. The remedy for that conduct must be sought elsewhere in the Theft Acts.

15.	By reason of the misdirection, the verdicts are unsafe and the appeal must be allowed and the convictions quashed.