HOUSE OF LORDS

R v ALLEN [1985] 1 AC 1029

13 June 1985

Full text

LORD HAILSHAM OF ST MARYLEBONE LC:

… the Court of Appeal certified the following point of law of general

public importance:

‘Upon a construction of the words ‘with intent to avoid payment’ in

section 3(1) of the Theft Act 1978, namely, whether an intention to make
permanent default on payment is required.’
…
The facts, which are not disputed, and which I draw from the case for the
appellant, were as follows. The respondent, Christopher Allen, booked a
room at an hotel for 10 nights from 15 January 1983. He stayed on
thereafter and finally left on 11 February 1983 without paying his bill in
the sum of £1,286.94. He telephoned two days later to explain that he was
in financial difficulties because of some business transactions and
arranged to return to the hotel on 18 February 1983 to remove his
belongings and leave his Australian passport as security for the debt. He
was arrested on his return and said that he genuinely hoped to be able to
pay the bill and denied he was acting dishonestly. On 3 March 1983, he
was still unable to pay the bill and provided an explanation to the police
of his financial difficulties. The respondent’s defence was that he had
acted honestly and had genuinely expected to pay the bill from the
proceeds of various business ventures.

The judgment of the Court of Appeal, with which I agree, was delivered
by Boreham J. He said [1985] 1 WLR 50, 57:

‘To secure a conviction under section 3 the following must be proved: (1)
that the defendant in fact made off without making payment on the spot;
(2) the following mental elements - (a) knowledge that payment on the
spot was required or expected of him; and (b) dishonesty; and (c) intent to
avoid payment of the amount due …’

I agree with this analysis. To this the judge adds the following comments:

‘If (c) means, or is taken to include, no more than an intention to delay or

defer payment of the amount due it is difficult to see what it adds to the
other elements. Anyone who knows that payment on the spot is expected
or required of him and who then dishonestly makes off without paying as
required or expected must have at least the intention to delay or defer
payment. It follows, therefore, that the conjoined phrase ‘and with intent
to avoid payment of the amount due’ adds a further ingredient - an
intention to do more than delay or defer - an intention to evade payment
altogether.’

My own view, for what it is worth, is that the section thus analysed is
capable only of this meaning. But counsel for the appellant very properly
conceded that, even if it were…capable of either meaning, in a penal
section of this kind any ambiguity must be resolved in favour of the
subject and against the Crown …

I find myself convinced by his final paragraph, which reads:

‘Finally, we can see no reason why, if the intention of Parliament was to

provide, in effect, that an intention to delay or defer payment might
suffice, Parliament should not have said so in explicit terms…Had it been
intended to relate the intention to avoid ‘payment’ to ‘payment as
required or expected’ [Editor’s italics] it would have been easy to say so.
The section does not say so …’

There is really no escape from this argument. There may well be

something to be said for the creation of a criminal offence designed to
protect, for instance, cab drivers and restaurant keepers against persons
who dishonestly abscond without paying on the spot and without any
need for the prosecution to exclude an intention to pay later, so long as
the original act of ‘making off’ could be described as dishonest … In
order to give the section now under consideration the effect required the
section would have to be remodelled in the way suggested by Boreham J.
in the passage quoted above …
…
The appeal should be dismissed … The respondent is legally aided
without contribution. For the public, as well as for the hotel, this has been
a somewhat expensive exercise.

Full text

LORD HAILSHAM OF ST. MARYLEBONE LC:

My Lords, on 17 November 1983 the present respondent was arraigned at

Southwark Crown Court on an indictment containing three counts under
the Theft Act 1978.

In the events which happened the jury was discharged from giving a
verdict on counts 1 and 3 which related respectively to section 2(1)(b)
and section 1 of the Act. Following a specific question by the jury and the
judge’s answer to it which form the subject matter of this appeal the
respondent was convicted on count 2 which charged an offence under
section 3.

The respondent appealed from this conviction and on 16 May 1984, after
a hearing extending over three days, the Court of Appeal (Criminal
Division) (Watkins L.J., Boreham and Stuart-Smith JJ.) allowed the
appeal and quashed the conviction. In refusing leave to appeal to your
Lordships’ House, the Court of Appeal certified the following point of
law of general public importance:

‘Upon a construction of the words ‘with intent to avoid payment’ in

section 3(1) of the Theft Act 1978, namely, whether an intention to make
permanent default on payment is required.’

Leave to appeal was subsequently granted by the Appeal Committee of

your Lordships’ House on 25 October 1984.

Count 2 of the indictment, which resulted in the conviction appealed

from, read as follows:
‘Statement of Offence. Making off without payment, contrary to section 3
of the Theft Act 1978. Particulars of offence. Christopher Allen, on a day
between 8 and 11 February 1983, knowing that payment on the spot for
goods supplied and services done was required or expected from him,
dishonestly made off without having paid as required or expected and
with intent to avoid payment of the £1,286.94 due.’

The facts, which are not disputed, and which I draw from the case for the
appellant, were as follows. The respondent, Christopher Allen, booked a
room at an hotel for 10 nights from 15 January 1983. He stayed on
thereafter and finally left on 11 February 1983 without paying his bill in
the sum of £1,286.94. He telephoned two days later to explain that he was
in financial difficulties because of some business transactions and
arranged to return to the hotel on 18 February 1983 to remove his
belongings and leave his Australian passport as security for the debt. He
was arrested on his return and said that he genuinely hoped to be able to
pay the bill and denied he was acting dishonestly. On 3 March 1983, he
was still unable to pay the bill and provided an explanation to the police
of his financial difficulties. The respondent’s defence was that he had
acted honestly and had genuinely expected to pay the bill from the
proceeds of various business ventures.

After a fairly lengthy summing up by the trial judge to which, in the light
of what happened, I need make no special reference, the jury retired at
1.00 p.m. and came back at 2.18 p.m. with a note containing the
following specific question for guidance by the judge:

‘Regarding count 2 of the indictment, the words ‘and with intent to avoid
payment of the £1,286.94,’ do you refer to permanent intention or one
applying only to the dates mentioned in the charge?’

To this question the judge gave the following explicit answer:

‘The answer is: one applying only to 8 and 11 February 1983. You see it
says in count 2, ‘knowing that payment on the spot for goods supplied
and services done was required or expected from him ...’ ‘On the spot’
means the day you leave. There was no payment on the spot when he
should have paid. It contrasts sharply with count 1 where the intent there
is permanent: that is not so in count 2 where he was required to pay on
the spot; and there has been a failure to do that. Will you please, once
more, retire to consider your verdict.’

The original summing up had contained the same direction, but in view of
what happened there is no need to refer to it separately, for the effect on
the jury of this specific reply was immediate and decisive. Within five
minutes they returned the verdict of guilty.

Despite some (though not unanimous) text book opinions in an opposite

sense (see Smith, The Law of Theft, 5th ed. (1984), para. 250, p. 130;
Griew, The Theft Acts 1968 and 1978, 4th ed. (1982), para. 11-14, p.
155, and, less strongly, Glanville Williams, Textbook of Criminal Law,
2nd ed. (1983), p. 878), I consider this answer to be clearly erroneous.

Section 3(1) of the Act of 1978, under which count 2 was laid, reads as
follows:

‘Subject to subsection (3) below,’ (which with subsection (4) is irrelevant

for this purpose) ‘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.’

The offence thus created is triable on indictment and attracts a maximum

penalty of two years.

The appellant’s contention was that the effect of this section is to catch
not only those who intend permanently to avoid payment of the amount
due, but also those whose intention is to avoid payment on the spot,
which, after all, is the time at which, ex hypothesi, payment has been
‘expected or required, ‘ and the time, therefore, when the ‘amount’
became ‘due.’

The judgment of the Court of Appeal, with which I agree, was delivered
by Boreham J. He said [1985] 1 W.L.R. 50, 57:
‘To secure a conviction under section 3 the following must be proved: (1)
that the defendant in fact made off without making payment on the spot;
(2) the following mental elements - (a) knowledge that payment on the
spot was required or expected of him; and (b) dishonesty; and (c) intent to
avoid payment [sc. ‘of the amount due’].’

I agree with this analysis. To it the judge adds the following comment:

‘If (c) means, or is taken to include, no more than an intention to delay or

defer payment of the amount due it is difficult to see what it adds to the
other elements. Anyone who knows that payment on the spot is expected
or required of him and who then dishonestly makes off without paying as
required or expected must have at least the intention to delay or defer
payment. It follows, therefore, that the conjoined phrase ‘and with intent
to avoid payment of the amount due’ adds a further ingredient - an
intention to do more than delay or defer - an intention to evade payment
altogether.’

My own view, for what it is worth, is that the section thus analysed is
capable only of this meaning. But counsel for the appellant very properly
conceded that, even if it were equivocal and capable of either meaning, in
a penal section of this kind any ambiguity must be resolved in favour of
the subject and against the Crown. Accordingly the appeal falls to be
dismissed either if on its true construction it means unambiguously that
the intention must be permanently to avoid payment, or if the clause is
ambiguous and capable of either meaning. Even on the assumption that,
in the context, the word ‘avoid ‘ without the addition of the word
‘permanently’ is capable of either meaning, which Boreham J. was
inclined to concede, I find myself convinced by his final paragraph,
which reads:

‘Finally, we can see no reason why, if the intention of Parliament was to

provide, in effect, that an intention to delay or defer payment might
suffice, Parliament should not have said so in explicit terms. This might
have been achieved by the insertion of the word ‘such’ before payment in
the phrase in question. It would have been achieved by a grammatical
reconstruction of the material part of section 3(1) thus, ‘dishonestly
makes off without having paid and with intent to avoid payment of the
amount due as required or expected.’ To accede to the Crown’s
submission would be to read the section as if it were constructed in that
way. That we cannot do. Had it been intended to relate the intention to
avoid ‘payment’ to ‘payment as required or expected’ it would have been
easy to say so. The section does not say so. At the very least it contains
an equivocation which should be resolved in favour of the appellant.’

There is really no escape from this argument. There may well be

something to be said for the creation of a criminal offence designed to
protect, for instance, cab drivers and restaurant keepers against persons
who dishonestly abscond without paying on the spot and without any
need for the prosecution to exclude an intention to pay later, so long as
the original act of ‘making off ‘ could be described as dishonest. Unlike
that in the present section, such an offence might very well, as with the
railway ticket offence, be triable summarily only, and counsel for the
appellant was able to call in aid the remarks of Cumming-Bruce L.J. in
Corbyn v. Saunders [1978] 1 W.L.R. 400, 403 which go a long way to
support such a view. But, as the Court of Appeal remarked, that decision
was under a different statute and a differently worded section which did
not contain both the reference to ‘dishonestly’ and the specific intention
‘to avoid payment’ as two separate elements in the mens rea of the
offence. In order to give the section now under consideration the effect
required the section would have to be remodelled in the way suggested by
Boreham J. in the passage quoted above, or the word ‘and’ in the ultimate
phrase would have to be read as if it meant ‘that is to say’ so that the
required intent would be equated with ‘dishonestly’ in the early part of
the subsection.

Apart from a minor matter not relevant to the judgment there is nothing
really to be added to the judgment delivered by Boreham J.

The minor matter to which I have just referred was the disinclination of
the Court of Appeal to consider the 13th Report of the Criminal Law
Revision Committee, Section 16 of the Theft Act 1968 (1977) (Cmnd.
6733), which led to the passing of the Act of 1978. In accordance with
present practice, this, for the purpose of defining the mischief of the Act
but not to construe it, their Lordships in fact have done. The ‘mischief’ is
covered by paragraphs 18 to 21 of the report and it is significant that the
report was accompanied by a draft Bill, section 3 of which is in terms
identical with section 3 of the Act, save that the proposed penalty was
three years instead of two. Though we did not use it as an aid to
construction, for the purpose of defining the mischief to be dealt with by
the section, I consider it to be relevant. The discussion had originated
from the decision in Ray v. Sempers [1974] A.C. 370 and the committee
defined the mischief in the following terms (paragraph 18):

‘there was general support for our suggestion that where the customer
knows that he is expected to pay on the spot for goods supplied to him or
services done for him it should be an offence for him dishonestly to go
away without having paid and intending never to pay.’

From this it is plain beyond doubt that the mischief aimed at by the
authors of the report was precisely that which the Court of Appeal,
construing the section without reference to the report, attributed to the
section by the mere force of grammatical construction.

In the result I agree with the judgment of the Court of Appeal and apart
from my reference to the Criminal Law Revision Committee report can
add nothing usefully to it. The appeal should be dismissed with the
consequent order for taxation. The respondent is legally aided without
contribution. For the public, as well as for the hotel, this has been a
somewhat expensive exercise.

LORD SCARMAN:

My Lords, I have had the advantage of reading in draft the speech

delivered by my noble and learned friend, the Lord Chancellor. I agree
with him. For the reasons he has given I also would dismiss the appeal.

LORD DIPLOCK:

My Lords, I have had the advantage of reading in draft the speech of my

noble and learned friend, the Lord Chancellor. I agree with it and for the
reasons which he gives I would dismiss the appeal.

LORD BRIDGE OF HARWICH:

My Lords, for the reasons given in the speech of my noble and learned
friend, the Lord Chancellor, with which I agree, I would answer the
certified question in the affirmative and dismiss the appeal.

LORD BRIGHTMAN:

My Lords, I, too, would dismiss the appeal.