Version 1 Page 2 3/2/2012
Making Off without Payment
Key definitions
Making off without payment: An offence where the D knows payment should be made but dishonestly decides not to pay at the time custom requires.Payment on the spot: When it is custom and practice to pay for goods/services and the D fails to do this.
Making off: to depart suddenly. Disappearing: leaving in a way that makes it difficult to be traced.
This offence occurs in situations such as where the defendant fills up his car with petrol and drives off without paying or has a meal in a restaurant and walks out without paying. It is a crime that commonly takes place at petrol stations and has been the focus of police targets. Despite this, offences still take place such as the one reported below.
Key Facts
1. An offence where the D knows payment should be made but dishonestly decides not to pay at the time custom requires.
2. Triable either way offence
3. Max sentence is 2yrs
The definition of Making Off Without Payment (MOP)
The offence is defined in the Theft Act 1978, s3 as:
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 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 Subsection (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.
This has the following elements:
␣ Goods supplied or services done. (AR)
␣ Makes off from the spot. (AR)
␣ Fails to pay on the spot as required or expected. (AR)
␣ Dishonesty. (MR)
␣ Knows that payment on the spot is required or expected. (MR)
␣ Intention to avoid payment permanently.(MR)
The first three of these are the actus reus and the last three form the mens rea of the offence.
Let us look at each element of the offence in turn:
Goods supplied or services done
The key point here is that the goods must be supplied. This requires the goods to be delivered to the defendant or the defendant being allowed to take the goods – as at a petrol filling station or from a self-service shop. If that is not the case, the offence is theft. Where the goods are taken from the self-service shop both theft and making off without payment are committed.
Where services are involved, the services must be done. This includes examples such as repairing a bicycle, supplying a meal or renting a car.
In the case of Allen (1985), it was the provision of a hotel room. This, therefore, includes the use of a facility such as a car park.
The offence is not, however, committed 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’.
This is s3(3) of the Act. This refers to illegal transactions such a supplying alcohol to the under-18s and also to transactions that are not legally enforceable. This refers to contract law where contracts with minors (under 18) for goods that are not ‘necessaries’ are unenforceable. If that was the case, there would be no offence of making off without payment, but there would be an offence of theft.
Makes off from the spot
The idea of making off is just one of departing. There is no need to be seen to be running away or surreptitiously leaving when no one is looking, even though that behaviour often occurs. The important thing is that the departure is dishonest. This can be seen from the case of Brooks and Brooks (1983), where it was said the words ‘dishonestly makes off’ are words easily understandable by any jury. In that case, the defendants had a meal in the upstairs room of a restaurant. The first defendant left the restaurant in a hurry. The second defendant also tried to leave but was caught by the manager. There was clearly making off in that case.
In McDavitt (1981), the defendant and three friends had a meal at a restaurant. The friends left, but the defendant stayed at the table. The bill was presented by a waiter and an argument started and the defendant refused to pay. He went to the door, to try and leave, but the exit was blocked and he was kept in the restaurant until the police arrived. It was decided that ‘making off’ refers to ‘a departure from the spot where payment is required or expected’. Where that spot is, is a matter for the jury to decide, depending on the circumstances. Here the defendant did not actually leave the spot, but merely attempted to do so. This is why shoplifters are usually arrested outside the shop as the offence of making off without payment (and theft) will definitely be complete then, rather than being an attempt to commit the crime.
It is therefore clear that ‘the spot’ covers a wide range of places, but usually means the area controlled by the person to whom payment should be made.
Fails to pay on the spot as required or expected
Normally this is at the end of a meal in a restaurant or before leaving a shop with goods. The key point is that the departure is made without paying as required or expected. This, therefore, depends on the normal relationship between the defendant and the victim.
However, if the defendant makes a false representation to get the victim to agree to payment later, this is no longer making off without payment but fraud by false representation under s2 of the Fraud Act 2006.
This can be seen from the case of Vincent (2001), where the defendant, in the autumn of 1998, stayed for a week at the Langton House Guest House in Windsor and shortly afterwards for a month at the Bricklayers’ Arms, Windsor. 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. The expectation normally is that hotels will be paid before the customer leaves the premises. In this case, there were discussions between the defendant and the hotels as to when payment would be made. In circumstances where an agreement is made a considerable time before payment would normally be expected, that agreement is capable of defeating the expectation of payment on the spot and so no offence of making off without payment is committed.
Dishonesty
This is the first part of the mens rea and relates to the making off. The test is the Ghosh test, as previously discussed. Thus, a defendant who honestly believed he had been given credit for the goods supplied or service done would not be guilty.
Knows that payment on the spot is required or expected
We have seen in the previous element that dishonesty relates to the making off. The idea that credit is not available is merely something that the defendant must know and, as in s2 of the Fraud Act 2006, is usually self-evident. Dishonesty is not part of the method of payment element. If payment is no longer expected (however that may have been achieved) the suspect is not dishonestly making off when he leaves as we have seen in the case of Vincent (2001).
It should be noted that in Vincent (2001), the bill was a reasonably substantial bill for hotels. It would be much more difficult to show an agreement had been reached to defer payment of a taxi fare, petrol at a filling station or for a meal in a restaurant. It could happen as, perfectly innocently, people get caught out by not having enough money with them, or realising they have lost their wallet. They then have to make an agreement to pay the next day.
Intention to avoid payment permanently
Here the intent must be never to pay the sum involved. This means that an honest belief that credit is being given will mean the offence is not being committed. This has already been seen in the case of Allen (1985).
Activity
Consider the following situations and consider in terms of the offence of Making off without payment.
Farah had a row with her boyfriend and ran out of the flat she shared with him, intending to go to her mother’s house. She knew she had very little money in her purse. She flagged down a passing taxi and asked to be driven to the local cinema complex. When the taxi stopped at traffic lights opposite the railway station, she leapt out of the taxi without paying and ran into the station. She used her credit card that had already reached its credit limit to buy a ticket to the town where her mother lived.
Aziz 1993: 2 men asked a taxi drive to take them to a night club then refused to pay the £15 requested , instead offering £4. The taxi driver decided to drive them to a police station at which time the men decided to damage the taxi. When the driver went to get the police in the station the two men ran off.
CA held that in journey by taxi payment on spot could either be outside or in the taxi and in this case men were in. It is enough that payment of the fare had arisen, a particular location isn’t necessary.
Troughton V Met Police: D took a taxi home. Being drunk he had not told the driver his full address. The driver stopped to obtain directions and D accused the driver of making an unnecessary diversion. The taxi driver drove to the nearest police station.
The journey was not completed and the taxi driver had breached the contract.
The offence of "making off" requires the payment to be legally enforceable.
Therefore, the taxi driver was unable to demand the fare after he had diverted from the proper route to D's destination.
Not guilty
Banned customer drove off without paying
ANNOYED staff had switched off the fuel supply to a diesel pump he was using, Oliver Pidgley drove off without paying for £3.11 worth of fuel, magistrates heard.
Pidgley, 25, of Krattigen, Eastville Road, Toynton St Peter, admitted making off from Partney Filling Station without making payment. He also admitted using his mother’s vehicle without insurance.
Skegness magistrates fined him £50 for making off and ordered him to pay £3.11 compensation.
He was fined £200 for the no insurance offence and ordered to pay £60 costs and a £15 surcharge. Six penalty points were endorsed on his licence.
Prosecutor Jim Clare told the court Pidgley had previously been barred from using the filling station because of a previous incident and so the fuel supply was switched off.
Later, in a police interview he said he had planned to put £10 worth of fuel in his mother’s car but when the pump was switched off he was annoyed and drove off without attempting to pay.
Liz Warwick, representing Pidgley, said her client had been on his way to football training. He was low on fuel and did not believe he had enough diesel to get to another garage.
Pidgley had an insurance policy for his own vehicle and had believed he was covered to drive his mother’s car, said Miss Warwick. It had been a genuine mistake, she said.