Making Off Without Payment As Defined In S3 Theft Act 1978 (Copy)

1. Introduction to Making Off Without Payment

• This offense occurs when a person fails to pay for goods or services at the time payment is required.
• Common examples include:
  • Leaving a taxi without paying.
  • Walking out of a restaurant without settling the bill.
• The offense was created to close a legal gap in theft law.
  • Before the Theft Act 1978, some cases of non-payment were not covered under theft laws.
  • Theft requires intent to permanently deprive, which did not always apply when a person simply refused to pay.
• Making off without payment is a strictly financial offense, different from theft or fraud.

2. Definition of Making Off Without Payment (Section 3 of the Theft Act 1978)

A person is guilty of the offense if:

“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.”

• Key Elements:
  1. The defendant makes off (leaves the place of payment).
  2. Goods have been supplied, or a service has been completed.
  3. Payment is required on the spot.
  4. The defendant has not paid.
  5. Dishonesty.
  6. Intent to avoid payment permanently.

3. Actus Reus of Making Off Without Payment

The actus reus consists of:

1. The defendant must make off.
2. Goods or services must have been provided.
3. Payment must be required at the time.
4. The defendant must not have paid.

3.1 The Defendant Must Make Off

• The defendant must leave the place where payment is expected.
• Case Example: R v McDavitt (1981)
  • The defendant had an argument at a restaurant and refused to pay.
  • He went to the toilet and stayed there until the police arrived.
  • The court ruled he had not “made off” because he was still on the premises.

3.2 Goods or Services Must Have Been Supplied

• The goods or service must be completed before the offense occurs.
• If the goods were never delivered or the service was not fully performed, there is no offense.
• Case Example: Troughton v Metropolitan Police (1987)
  • A drunken passenger took a taxi but refused to give directions.
  • The taxi driver drove him to a police station instead of his home.
  • Since the journey was not completed, there was no requirement for payment.

3.3 Payment Must Be Required on the Spot

• The law only applies when payment is due immediately.
• Case Example: R v Vincent (2001)
  • The defendant stayed at two hotels and left without paying.
  • He claimed to have arranged to pay later.
  • Since payment was not immediately required, his conviction was quashed.

3.4 The Defendant Has Not Paid

• The defendant must have left without paying the full required amount.
• A partial payment does not count as making off, but it may still be dishonest.

4. Mens Rea of Making Off Without Payment

To be guilty, the defendant must have:

1. Dishonesty.
2. Knowledge that payment is required.
3. Intent to permanently avoid payment.

4.1 Dishonesty

• The test for dishonesty follows R v Barton and Booth (2020):
  1. What was the defendant’s actual state of mind?
  2. Would an ordinary person find it dishonest?
• The defendant must know they are acting dishonestly.

4.2 Knowledge That Payment is Required

• If the defendant genuinely believes payment is not required, they are not guilty.
• Example: A person believes their friend already paid the bill—this is not dishonest.

4.3 Intent to Permanently Avoid Payment

• The defendant must intend never to pay.
• If they intend to delay payment, but not avoid it altogether, they are not guilty.
• Case Example: R v Allen (1985)
  • The defendant left a hotel without paying a £12,000 bill.
  • He argued he intended to pay later when he received business funds.
  • His conviction was quashed because the intent to delay is different from the intent to avoid payment permanently.

5. Sentencing for Making Off Without Payment

• This is a triable-either-way offense, meaning it can be tried in:
  • Magistrates’ Court (for minor cases).
  • Crown Court (for serious cases).
• Maximum Penalty: 2 years’ imprisonment.

5.1 Factors Affecting Sentencing

• Aggravating Factors (Increase Sentence):
  • Large amounts of money involved.
  • Multiple victims.
  • Planning the offense in advance.
• Mitigating Factors (Reduce Sentence):
  • First-time offense.
  • No significant loss to the victim.
  • The defendant attempted to return and pay later.

6. Evaluation of Making Off Without Payment Law

6.1 Strengths

✔ Fills a legal gap – Covers cases where theft laws do not apply.
✔ Clear and specific offense – Only applies when goods/services are completed and payment is due.
✔ Protects businesses – Helps prevent customers from exploiting services without paying.

6.2 Weaknesses

❌ Overlaps with fraud – Some cases of making off could also be charged under the Fraud Act 2006.
❌ Difficult to prove dishonesty – Defendants can claim they intended to pay later (R v Allen).
❌ Intent to delay vs. intent to avoid payment is unclear – This can lead to defendants avoiding liability.

7. Conclusion

• Making off without payment is a specific offense designed to close gaps in theft law.
• The law ensures that dishonest individuals who receive goods or services without paying can be prosecuted.
• The distinction between intent to delay vs. intent to avoid payment remains a challenging issue.
• Possible reforms:
  • Stronger criteria for dishonesty.
  • Clearer guidelines on “payment required on the spot”.
  • Consider merging the offense with fraud laws for consistency.