Obtaining services Obtaining services dishonestlydishonestly

Practise question: SamplePractise question: SampleWayne was walking down the street when Wayne was walking down the street when someone suddenly said to him, “You have someone suddenly said to him, “You have just dropped this”, thrust a piece of paper just dropped this”, thrust a piece of paper into his hand and walked off. Wayne put the into his hand and walked off. Wayne put the piece of paper into his pocket without piece of paper into his pocket without looking at it and did not discover until two looking at it and did not discover until two hours later that it was actually a ticket for a hours later that it was actually a ticket for a seat at that evening’s football match seat at that evening’s football match between City and United. Feeling a little between City and United. Feeling a little guilty about using a ticket that he had not guilty about using a ticket that he had not paid for, Wayne went to the football stadium paid for, Wayne went to the football stadium and used it to gain entry.and used it to gain entry.

S11 Fraud Act 2006S11 Fraud Act 2006

Examples of obtaining services dishonestly Examples of obtaining services dishonestly are climbing over the wall of a football are climbing over the wall of a football ground to watch the match for free or ground to watch the match for free or someone who seeks NHS treatment when someone who seeks NHS treatment when they are not entitledthey are not entitled

ElementsElements

Obtains for himself or another (AR)Obtains for himself or another (AR) ServicesServices (AR)(AR) Dishonestly (MR)Dishonestly (MR) knowing that the services are made knowing that the services are made

available on the basis that payment available on the basis that payment has been, is being or will be made for has been, is being or will be made for or in respect of them or that they or in respect of them or that they might be (MR)might be (MR)

Avoids or intendsAvoids or intends to avoid payment in to avoid payment in full or in part (MR) full or in part (MR)

Obtains for himself or anotherObtains for himself or another

This offence is a This offence is a result result crimecrime

Services must actually have been Services must actually have been obtainedobtained

No act of deception is needed- no one No act of deception is needed- no one needs to have been deceived needs to have been deceived

Doesn’t have to be for the defendant’s Doesn’t have to be for the defendant’s own benefitown benefit

ServicesServices

If a service is provided without If a service is provided without charge then no offence can be charge then no offence can be committed under this actcommitted under this act

Word “services” is not defined under Word “services” is not defined under the act the act

The CPS give examples as to what The CPS give examples as to what could be a service could be a service

CPS examplesCPS examples

Obtains chargeable data or software Obtains chargeable data or software over the internetover the internet

Orders a meal in a restaurantOrders a meal in a restaurant Attaches a decoder to a TV to receive Attaches a decoder to a TV to receive

chargeable serviceschargeable services Uses the services in a members’ clubUses the services in a members’ club

Services case lawServices case law

SofroniouSofroniou D pretended to be 3 D pretended to be 3 different people to attempt to deceive different people to attempt to deceive banks into providing him with services.banks into providing him with services.

Court of Appeal decided that there had Court of Appeal decided that there had to be an understanding that to be an understanding that payment payment would be made would be made by the person by the person receiving the service. D was guilty.receiving the service. D was guilty.

Shows that free services are not Shows that free services are not included in the definition. included in the definition.

DishonestyDishonesty

Ghosh testGhosh test

Examples of things which are not Examples of things which are not dishonest in the Theft Act dishonest in the Theft Act do not do not apply apply to the fraud offencesto the fraud offences

Knowing that services are made Knowing that services are made available on the basis that payment has available on the basis that payment has been, is being or will be made for or in been, is being or will be made for or in respect of them or that they might be respect of them or that they might be

D must not pay for the service or not D must not pay for the service or not pay in fullpay in full

Avoids or intends to avoid payment Avoids or intends to avoid payment in full or in partin full or in part

An intention to avoid payment is An intention to avoid payment is sufficientsufficient

The intent must be to never pay the full The intent must be to never pay the full amount- amount- AllenAllen (1985) D stayed at a (1985) D stayed at a hotel and then left without paying. He hotel and then left without paying. He telephoned 2 days later to explain that telephoned 2 days later to explain that he intended to pay but had financial he intended to pay but had financial difficulties. The House of Lords held that difficulties. The House of Lords held that an intention to delay payment was not an intention to delay payment was not sufficient.sufficient.

Sentence Sentence

Offence is triable either wayOffence is triable either way

Maximum sentence of 5 years Maximum sentence of 5 years

Practice scenarioPractice scenario

Ed bought an mp3 player for his Ed bought an mp3 player for his girlfriend’s birthday and wanted to girlfriend’s birthday and wanted to download some music on to it. He download some music on to it. He logged onto cheaptunes.com an logged onto cheaptunes.com an downloaded a number of songs using downloaded a number of songs using his Dad’s credit card without his his Dad’s credit card without his Dad’s knowledge.Dad’s knowledge.

Obtains for himself or another- for his Obtains for himself or another- for his girlfriendgirlfriend

Services- music downloadsServices- music downloads Dishonestly- Ghosh testDishonestly- Ghosh test Knowing that services are made Knowing that services are made

available…- He know he has to pay for available…- He know he has to pay for themthem

Avoids or intends to avoid payment…-Avoids or intends to avoid payment…-uses his dad’s card so doesn’t pay uses his dad’s card so doesn’t pay himselfhimself

Practice scenarioPractice scenario Janet and John decided to go to an art Janet and John decided to go to an art

gallery in the city where they were having a gallery in the city where they were having a break. When they got there, they break. When they got there, they discovered that this was a private art discovered that this was a private art gallery, and, unlike public art galleries, gallery, and, unlike public art galleries, there was an entry fee. As they were short there was an entry fee. As they were short of money, Janet claimed to be a student of money, Janet claimed to be a student and showed an old, out of date student card and showed an old, out of date student card whilst holding her fingers over the date and whilst holding her fingers over the date and said that John was unemployed although, in said that John was unemployed although, in reality, he was in full time employment. On reality, he was in full time employment. On the basis of this, the art gallery gave them the basis of this, the art gallery gave them concessionary tickets which were half the concessionary tickets which were half the normal price.normal price.

Elements of the offenceElements of the offence Obtains for himself or another- Janet Obtains for himself or another- Janet

for herself and another (John)for herself and another (John) Services- entry to the art galleryServices- entry to the art gallery Dishonestly- Ghosh test, she knew it Dishonestly- Ghosh test, she knew it

was dishonest and that it was was dishonest and that it was dishonest by the standards of dishonest by the standards of ordinary, reasonable peopleordinary, reasonable people

Knowing that services are made- Janet Knowing that services are made- Janet knew payment was requiredknew payment was required

Avoids or intends to avoid- The lies are Avoids or intends to avoid- The lies are intended to avoid full paymentintended to avoid full payment