Under s 3 of the Theft Act 1978 (TA 1978), the criminal offence of making off without payment is committed if ‘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’.
Sneaking out of a restaurant without paying the bill falls squarely within this definition.
What needs to be established?
For the offence to be established the following elements need to be present:
- making off;
- without payment;
- knowledge that payment is required on the spot;
- goods supplied or services done;
- intention to avoid payment;
If we take the example of leaving a restaurant without paying the bill, making off will occur when an individual goes beyond the spot where the payment is required or expected. This would include leaving the restaurant, but not simply leaving the table to go to the toilet.
Without payment takes its prima facie meaning of simply not providing any money for the goods or services.
Knowledge that payment is required on the spot
‘Payment on the spot’ includes payment at the time of collecting goods on which work has been done or in respect of which service has been provided. No liability can arise if the person thought the goods were free or offered on credit.
Goods supplied or services done
Goods or services must have actually been supplied for which payment would be expected. Under s 3(3) of TA 1978, no offence of making off without payment is committed where the supply of the goods or the doing of the service is against to law (eg, paying a bank robber’s getaway driver), or where the service rendered is one for which payment is not legally enforceable (eg, paying a prostitute).
Intention to avoid payment
A defendant accused of making off without payment must have known that payment was required and intended to leave without paying, and had no intention of coming back or ever paying for the goods or services.
When deciding whether someone has acted dishonestly, the court will apply the two-stage test set out in R v Ghosh (1982). If the answer to either of the following questions is ‘no’, the prosecution will not succeed:
- according to the ordinary standards of reasonable and honest people, was what was done dishonest? (objective test);
- if it was dishonest by those standards, did the defendant realise that reasonable and honest people would regard the conduct as dishonest? (subjective test).
If the case goes to Crown Court, the defendant can face a prison sentence of up to two years and/or an unlimited fine. Defendants tried in the magistrates’ court can be fined up £5000 and/or jailed for up to six months.