Obtaining Service Dishonestly

S.11 Fraud Act 2006 S.11 (1) – obtains services for himself or another by a dishonest act; and in breach of subsection (2) S.11 (2) – a person obtains services in breach of this subsection if: They are made available on the basis that a payment has been, is being or will be made for them; AND He obtains them without payment having been made for them or without payment having been made in full; AND When he obtains them, he knows: That they are being made available on the basis described in a); OR That they might be He intends payment will not be made or will not be made in full

Actus Reus - Obtains for himself or another This is a result crime – services must actually be obtained No act of deception is needed – service provider does not need to be deceived – e.g. climbing a wall to see a football match – accessing a service that is normally provided only on payment of a fee For another – does not need to be for D’s benefit – e.g. lifting someone over a fence to get into a music festival

Actus Reus - Services “services” not defined in the Act but Crown Prosecution Service gives examples: Obtains chargeable data or software over the internet without paying (includes music or video downloads) Orders a meal in a restaurant knowing he has no means to pay Attaches a decoder to his TV to enable him to access chargeable satellite services without paying Uses the services of a members’ club without paying and without being a member

Actus Reus – That are “made available on the basis that payment has been made, is being or will be made for or in respect of them” Must be a charge for the service Where a service is being provided without charge, there is no offence Sofroniou – banking services falls within the definition of services but not free banking services – i.e. not “interest free” loans or credit cards

Mens Rea – By a Dishonest Act Ghosh test Services must be obtained by a dishonest act – D must commit a dishonest act at the time he obtains the services, not at a later point Must be a causal link between the act of dishonesty and the obtaining of services If no dishonest act at the point of obtaining the services, then no offence

Mens Rea - Knowing that the services are made available on the basis that payment has been, is being or will be made for or in respect of them Usually self-evident – awareness that a service necessitates payment

Actus Reus and Mens Rea - Avoids or intends to avoid payment in full or in part D gets the service either by not paying for it or not paying in full D must intend to avoid payment for the service provided in full or in part at the time the service is obtained Intent must be to never pay the sum involved Allen – intent not to pay must be intent not to pay permanently. D stayed in a hotel and left without paying his bill. He telephoned 2 days later to explain he was in financial difficulty and arranged to return to hotel a few days later to remove his belongings and leave his passport as security for the debt. He was arrested on his return and said he genuinely hoped to be able to pay the bill and had not acted dishonestly. Held – not guilty as his intent not to pay was not permanent

Crossover with S.2 Fraud by False Representation Many scenarios can be both Fraud by False Representation AND Obtaining Services Dishonestly BUT there are times when they do not S.11 Obtaining services dishonestly is a result crime and a service must actually be obtained S.2 Fraud by False Representation is a conduct crime and D only needs to intend to make a gain or cause a loss – no gain or loss needs to actually happen S.11 Obtaining Service Dishonestly only relates to services that require payment S.2 Fraud by False Representation can apply if D makes a false representation to benefit from a free service

Questions to Consider for Obtaining Services Dishonestly Did D obtain for himself or another? Remember this is a result crime so services must actually be obtained Was it services? Were the services “made available on the basis that payment has been made, is being or will be made for or in respect of them” Were the services obtained by a dishonest act? Did D know that the services were made available on the basis that payment has been, is being or will be made for or in respect of them Did D avoid or intend to avoid payment in full or in part