Making off without payment, theft or fraud?

25 December 2019

Not reviewed after the date of publication


A person goes into a restaurant and orders a meal without having the means to pay, therefore intending not to pay. They don't make off.

What offence is committed?


Making off without payment is covered by section 3 of the Theft Act 1978:

'3(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.

3(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 a service has been provided.

3(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.'

The above offence involves dishonestly leaving the place (or spot) where payment is required. This has been held to be 'passing the point where payment is required', such as a cash desk (R v Brooks & Brooks 1982), but it can be interpreted more widely than that, depending on the circumstances. It can be likened to a 'dishonest departure'. Be aware of R v Vincent 2001, because the dishonest element of this offence refers specifically to the offender making off dishonestly, not to his conning the victim into thinking the money will be paid later.

In the circumstances you have outlined, if the above offence does not apply, offences under the Theft Act 1968 or the Fraud Act 2006 should be considered. In our view, theft is more appropriate where goods are involved, and fraud is more appropriate for services, for example, obtaining services dishonestly under section 11 of the Fraud Act 2006.

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