2.2.8 Fraud – s.11 Fraud Act 2006

Obtaining Services Dishonestly

Statutory Provision

• s.11(1) Fraud Act 2006:
  • “A person is guilty of an offence under this section if he obtains services for himself or another—
    (a) by a dishonest act, and
    (b) in breach of subsection (2).”
• s.11(2):
  • A person obtains services in breach if—
    (a) they are made available on the basis that payment has been, is being, or will be made,
    (b) he obtains them without any payment having been made, or without payment in full being made, and
    (c) when he obtains them, he knows that payment is required or expected for them, and intends that payment will not be made, or not made in full.
• Maximum penalty: 5 years’ imprisonment on indictment, or 12 months on summary conviction.

Actus Reus of s.11

1. Obtaining Services

• “Services” = things done for benefit of another, not goods.
• Examples: utilities (gas, electricity), public transport, subscription services, mobile networks, pay-per-view television, internet.

Case examples:

• R v Sofroniou [2004] EWCA Crim 2135 – banking/financial services not “services” under the old law, but now expressly covered by s.11.
• R v Nizzar (2013) – shopkeeper tried to dishonestly cancel winning lottery ticket to obtain services of National Lottery. Convicted under fraud.

2. Services Obtained by a Dishonest Act

• D must take positive action (not mere omission).
• Example acts:
  • Climbing over a barrier to avoid paying train fare.
  • Entering false details on subscription forms.
  • Using hacked codes to watch paid TV channels.

3. Payment Required or Expected

• Services must be offered on basis of payment (immediate or deferred).
• If service free (e.g. free WiFi), offence not made out.

4. Payment Not Made or Not Made in Full

• D must obtain services without paying, or without paying in full.
• Includes “part payment” if remainder deliberately withheld.

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course

Mens Rea of s.11

1. Dishonesty

• Assessed by Ivey v Genting Casinos [2017] UKSC 67:
  • Step 1: What did D believe about facts?
  • Step 2: Would ordinary decent people consider conduct dishonest?

Case:

• R v Feely [1973] QB 530 – dishonesty determined by jury applying community standards.

2. Knowledge that Payment is Required

• D must know that payment is required or expected.
• If genuinely believes service free, no MR.

Case:

• R v Allen [1985] AC 1029 – though decided under s.3 Theft Act 1978, principle still applies: intent to delay payment not enough; intent not to pay must be proved.

3. Intention Not to Pay (in full or at all)

• Offence requires specific intent that payment will not be made (or not in full).
• Temporary intention to pay later is insufficient.
• Case: R v Allen (1985) again — leaving hotel intending to settle later = not guilty. Must be intent to permanently avoid payment.

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course

Important Features

• Unlike fraud (s.2–4), no requirement of gain/loss element; liability arises from dishonestly obtaining services without payment.
• Offence complete once services obtained without payment and with intent not to pay, even if provider suffers no actual loss.
• Covers many “fare evasion” and “subscription fraud” situations.

Evaluation

• Strengths:
  • Closes gap left by repeal of “obtaining services by deception.”
  • Covers modern scenarios: electronic services, online subscriptions, hacking.
  • Flexible: applies to both high-value fraud (banking, IT systems) and low-value dishonesty (fare dodging).
• Weaknesses:
  • Overlap with theft and s.3 “making off without payment.”
  • Requires proving specific intent not to pay — difficult if D claims they intended to pay later (Allen).
  • Does not cover services obtained by pure omission (must be “act”).

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course

Reform Proposals

• Law Commission (2020 Review of Fraud):
  • Suggested clarification of “services” to cover digital products and cloud-based systems.
  • Considered raising maximum penalty beyond 5 years due to seriousness of modern cyber frauds.
  • Possible merger with fraud offences to simplify overlaps.

Exam Application Strategy

1. Quote s.11 Fraud Act 2006.
2. Apply AR: obtaining services (examples), dishonest act (not omission), non-payment.
3. Apply MR: dishonesty (Ivey), knowledge that payment due, intent not to pay (Allen).
4. Conclude whether liability proven.

Conclusion

• Actus Reus: Obtaining services (utilities, subscriptions, transport, internet) by dishonest act, without payment.
• Mens Rea: Dishonesty, knowledge that payment required, intention not to pay (permanent).
• Case law (Allen, Sofroniou, Nizzar) demonstrates scope.
• Offence strengthens dishonesty law by targeting misuse of services in everyday and digital contexts.