2.2.6 Making Off Without Payment – Actus Reus

Statutory Provision

• s.3(1) Theft Act 1978:
  • “A person who, knowing that payment on the spot for any goods supplied or services 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.”
• Maximum sentence: 2 years’ imprisonment (triable either way).

Actus Reus Elements

The actus reus of making off without payment consists of:

1. Goods supplied or services done
2. Payment on the spot required or expected
3. Failure to pay as required/expected
4. Making off (departure from place of payment)

1. Goods Supplied or Services Done

• Must involve goods or services lawfully supplied or completed.
• Goods/services must be legally enforceable contracts.
• Purely illegal contracts (e.g., drugs, gambling debts pre-2005 Gambling Act) not covered.
• Case: R v Sofroniou [2004] EWCA Crim 2135
  • D obtained banking services (credit facilities). Court held banking services not “services” under s.3 — too abstract.
  • Offence applies to concrete, immediate goods/services (e.g., food in restaurant, petrol).

2. Payment on the Spot Required or Expected

• Must be an arrangement where payment is due immediately upon supply/service.
• If payment agreed to be later (credit agreement), offence not made out.
• Case: R v Vincent [2001] 1 Cr App R 10
  • D left hotels without paying. He had agreement with managers to defer payment due to financial difficulties.
  • Held: No liability because payment was not expected “on the spot” — arrangement to defer meant actus reus not satisfied.
• Case: Troughton v MPC [1987] Crim LR 138
  • D took taxi but asked to be driven further than agreed destination; journey incomplete, so no liability as service not “done.”

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3. Failure to Pay as Required or Expected

• Payment must not be made where required.
• Even part-payment insufficient if full payment required.
• Covers “dine and dash,” leaving hotel without paying, driving away after refuelling.
• Case: R v McDavitt [1981] Crim LR 843
  • D attempted to leave restaurant without paying, but was stopped before leaving. Held: no “making off” since he had not departed from the place of payment.

4. Making Off (Departure from Place of Payment)

• Offence only complete once D leaves the spot where payment is expected.
• “Spot” depends on facts:
  • Petrol station: kiosk.
  • Restaurant: till or exit.
  • Taxi: where journey ends.
• Case: R v Brooks & Brooks [1982] Crim LR 653
  • Ds left restaurant without paying for meal. One ran off, one walked away, one claimed ignorance. Held: “making off” includes calmly walking away as well as running.

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 Clarifications

• Goods/services must be lawfully supplied. If contract void/illegal, offence not committed.
• Payment must be expected immediately. If postponed or deferred, no offence (Vincent).
• Making off requires physical departure. Simply refusing to pay while remaining is not enough — could be civil debt, not crime (McDavitt).

Evaluation

• Strengths:
  • Closes loophole where theft could not apply (no appropriation of property).
  • Protects service industries (restaurants, taxis, petrol stations).
  • Flexible definition of “making off” covers subtle departures (Brooks & Brooks).
• Weaknesses:
  • Narrow scope: if payment deferred (e.g., hotel agreements in Vincent), offence not made out.
  • Excludes services not legally enforceable (e.g., informal arrangements, illegal contracts).
  • Critics argue reliance on “on the spot” requirement outdated in age of digital/credit payments.

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 (2002): suggested modernising offence to include situations where:
  • Payment is electronically expected (contactless, online).
  • Broader range of services covered (beyond restaurants/hotels).
• Possible merger with fraud offences (Fraud Act 2006) to simplify law.

Exam Application Strategy

1. Quote s.3 Theft Act 1978.
2. Break down actus reus:
   • Goods/services done (Sofroniou, Troughton).
   • Payment on spot expected (Vincent).
   • Failure to pay.
   • Making off (McDavitt, Brooks & Brooks).
3. Apply facts of problem question: Was payment due on spot? Did D leave? Were goods/services complete?
4. Conclude whether actus reus satisfied.

Conclusion

• Actus reus of Making Off Without Payment (s.3 Theft Act 1978):
  • Goods supplied or services done.
  • Payment on spot required or expected.
  • Failure to pay.
  • Making off (leaving without paying).
• Case law (Sofroniou, Vincent, Troughton, McDavitt, Brooks & Brooks) clarifies scope.
• Provides strong protection for service providers, though criticised for narrow scope in modern commercial settings.