Director of Public Prosecutions v Ray (A.P.)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Reid,Lord Macdermott,Lord Morris of Borth-y-Gest,Lord Hodson,Lord Pearson |
| Judgment Date | 25 July 1973 |
| Judgment citation (vLex) | [1973] UKHL J0725-1 |
| Docket Number | Parliamentary Archives, HL/PO/JU/4/3/1243 |
| Court | House of Lords |
| Date | 25 July 1973 |
[1973] UKHL J0725-1
Lord Reid
Lord MacDcrmott
Lord Morris of Borth-y-Gest
Lord Hodson
Lord Pearson
Parliamentary Archives, HL/PO/JU/4/3/1243
House of Lords
The facts of this case have been fully set out by my noble and learned friend. Lord Morris of Borth-y-Gest, and I shall not repeat them. If a person induces a supplier to accept an order for goods or services by a representation of fact, that representation must be held to be a continuing representation lasting until the goods or services are supplied. Normally it would not last any longer. A restaurant supplies both goods and services: it supplies food and drink and the facilities for consuming them. Customers normally remain for a short time after consuming their meal, and I think that it can properly be held that any representation express or implied made with a view of obtaining a meal lasts until the departure of the customers in the normal course.
In my view, where a new customer orders a meal in a restaurant, he must be held to make an implied representation that he can and will pay for it before he leaves. In the present case the accused must be held to have made such a representation. But when he made it it was not dishonest: he thought he would be able to borrow money from one of his companions.
After the meal had been consumed the accused changed his mind. He decided to evade payment. So he and his companions remained seated where they were for a short time until the waiter left the room and then ran out of the restaurant.
Did he thereby commit an offence against section 16 of the Theft Act, 1968? It is admitted, and rightly admitted, that if the waiter had not been in the room when he changed his mind and he had immediately run out he would not have committed an offence. Why does his sitting still for a short time in the presence of the waiter make all the difference?
The section requires evasion of his obligation to pay. That is clearly established by his running out without paying. Secondly, it requires dishonesty: that is admitted. There would have been both evasion and dishonesty if he had changed his mind and run out while the waiter was absent.
he crucial question in this case is whether there was evasion "by any deception". Clearly there could be no deception until the accused changed his mind. I agree with the following quotation from the judgment of Buckley J. in In re London and Globe Finance Co. [1903] 1 Ch. 728:
"To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false."
So the accused, after he changed his mind, must have done something intended to induce the waiter to believe that he still intended to pay before he left. Deception, to my mind, implies something positive. It is quite true that a man intending to deceive can build up a situation in which his silence is as eloquent as an express statement. But what did the accused do here to create such a situation? He merely sat still.
It is, I think, apparent from the Case Stated that the magistrates accepted the prosecution contention that:
"… as soon as the intent to evade payment was formed and the Appellant still posed as an ordinary customer the deception had been made."
The magistrates stated that they were of opinion that:
"… having changed his mind as regards payment, by remaining in the restaurant for a further ten minutes as an ordinary customer who was likely to order a sweet or coffee, the appellant practised a deception."
I cannot read that as a finding that after he changed his mind he intended to deceive the waiter into believing that he still intended to pay. And there is no finding that the waiter was in fact induced to believe that by anything the accused did after he changed his mind. I would infer from the case that all that he intended to do was to take advantage of the first opportunity to escape and evade his obligation to pay.
Deception is an essential ingredient of the offence. Dishonest evasion of an obligation to pay is not enough. I cannot see that there was, in fact, any more than that in this case.
I agree with the Divisional Court that:
"His plan was totally lacking in the subtlety of deception and to argue that his remaining in the room until the coast was clear amounted to a representation to the waiter is to introduce an arti-ficiality which should have no place in the Act."
I would therefore dismiss this appeal.
The respondent with four other young men entered a restaurant on the evening of 30th September, 1971, and he and three of his companions then ordered a meal. When this order was given the respondent intended to pay for his meal. The meal was duly served and there were no complaints. But after the respondent and the others had eaten it they had a discussion and decided to run out of the restaurant without paying. Some ten minutes later they did so while the waiter was absent in the kitchen. By then they had been almost an hour in the restaurant and, until they ran out, had maintained the demeanour of ordinary customers.
On 1st February, 1972, the respondent was brought before the Magistrates' Court sitting at Gainsborough on an information arising out of this incident and alleging an offence under section 16(1) of the Theft Act. 1968. The terms of the charge were inapt, but no point was taken about this and before your Lordships counsel for the parties agreed that, in its substance, the offence charged was that the respondent on the occasion in question had dishonestly obtained for himself by deception a pecuniary advantage, namely, the evasion of a debt of 47 pence, the price of the meal he had consumed.
The Magistrates' Court found that the respondent had practised a deception, and that, having made himself liable for a debt in respect of a meal, had by his deception dishonestly evaded payment. The Court accordingly found the case proved, convicted the respondent and fined him £1. It subsequently stated a case for the High Court which set out the facts and findings I have mentioned and asked whether, upon a true construction of section 16 of the Theft Act, 1968, the respondent was rightly convicted.
On 19th December, 1972, a Divisional Court (Lord Widgery C.J., Willis and Talbot JJ.) answered this question in the negative. From that decision the Director of Public Prosecutions now appeals by leave to your Lordships' House.
The material parts of subsections (1) and (2) of section 16 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) 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;…".
Section 29(2) of the Act of 1968 provides for the summary trial of offences under section 16 with the consent of the accused and subsection (3) of section 16 incorporates the meaning of "deception" contained in sub-section (4) of section 15 which says that "deception" means—
"… any deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including a deception as to the present intentions of the person using the deception or any other person."
To prove the charge against the respondent the prosecution had to show that he (i) by a deception (ii) had dishonestly (iii) obtained for himself (iv) a pecuniary advantage. The last of these ingredients no longer raises, on the facts of this appeal, the problems of interpretation which were recently considered by this House in Director of Public Prosecutions v. Turner. By that decision a debt is "evaded" even if the evasion falls short of being final or permanent and is only for the time being; and a pecuniary advantage has not to be proved in fact as it is enough if the case is brought within section 16(2) (a) or (b) or (c).
On the facts here, this means that the respondent's debt for the meal he had eaten was evaded for the purposes of subsection 2(a); and that in consequence he obtained a pecuniary advantage within the meaning of sub-section (1). No issue therefore arises on the ingredients I have numbered (iii) and (iv). Nor is there any controversy about ingredient (ii). If the respondent obtained a pecuniary advantage as described he undoubtedly did so dishonestly. The case is thus narrowed to ingredient (i) and that leaves two questions for consideration. First, do the facts justify a finding that the respondent practised a deception? And secondly, if he did, was his evasion of the debt obtained by that deception?
The first of these questions involves nothing in the way of words spoken or written. If there was deception on the part of the respondent it was by his conduct in the course of an extremely common form of transaction which, because of its nature, leaves much to be implied for conduct. Another circumstance affecting the ambit of this question lies in the fact that, looking only to the period after the meal had been eaten and the respondent and his companions had decided to evade payment, there is nothing that 1 can find in the discernible conduct of the respondent which would suffice in itself to show that he was then practising a deception. No doubt he and the others stayed in their seats until the waiter went into the kitchen and while doing so gave all the appearance of ordinary customers. But in my opinion nothing in this or in anything else which occurred after the change of intention went far enough to afford proof of deception. The picture, as I see it, presented by this last stage of the entire...
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