Fraud – Obtaining Services Dishonestly Fraud Act 2006, s11

Lesson objectives I will be able to state the definition of obtaining services dishonestly I will be able to explain the actus reus and mens rea of obtaining services dishonestly I will be able to explain cases that illustrate the law on obtaining services dishonestly

This offence is a direct replacement for the offence under the Theft Act 1978, s1 of obtaining services by deception Examples include: someone who climbs over the wall of a football ground to watch a match without paying, someone who seeks free NHS treatment to which they are not entitled Elements of the offence under the Fraud Act 2006, s2 are that the defendant: obtains for himself or another services dishonestly knowing the services are made available on the basis that payment has been, is being or will be made for or in respect of them or that they might be and avoids or intends to avoid payment in full or in part

Section 11 of the Act itself helps clarify the definition: 1.A person is guilty of an offence under this section if he obtains services for himself or another – a)By a dishonest act, and b)In breach of subsection (2) 2. A person obtains services in breach of this subsection if – a)They are made available on the basis that payment has been, is being or will be made for or in respect of them, b)He obtains them without any payment having been made for or in respect of them or without payment having been made in full, and c) when he obtains them, he knows – i) that they are being made available on the basis described in paragraph (a), or ii) that they might be, But intends that payment will not be made, or will not be made in full

It should be noted that, in many cases, the defendant will also have committed an offence under s2 of fraud by making a false representation, the false representation being that payment will be made or, where only part payment has been made, will be made in full

1. Obtains for himself or another This is a result crime, as there must be proof that the services have actually been obtained No act of deception is needed, and there is no need to prove that the service provider has been deceived (that is why climbing the wall to see the football match can form the offence. You are accessing a service (the match) that is normally provided only on payment of a fee (ticket price)

It should also be noted that the offence can be committed where the person performing the act does not do so for his own benefit This could therefore, possibly include lifting someone over a fence to get into a music festival

2. Services The offence applies to services that are made available on the basis that payment has been, is being or will be made for or in respect of them This means that where a service is being provided without charge, there cannot be an offence under this section The word services is not defined within the Act, but the CPS give a number of examples of services that would fall within this section:

Obtains chargeable data or software over the internet without paying 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 These examples raise some interesting points. Chargeable data would include music or video downloads; ordering the meal without the means to pay would suggest an offence under s2; accessing the chargeable satellite services would presumably mean there was a separate offence each time a service was accessed; if a person got access to the club, but did not use the services, would there still be an offence if the sole purpose of access was to get warm on a cold day?

There is one case that helps with respect to banking services – Sofroniou (2004) – banking services fall within the definition of services but free banking services cannot form the basis of an offence under s11, only s2 It should, therefore, be noted that if the banking services obtained are free, s11 cannot be the appropriate offence. However, the same restriction does not apply to s2

3. Dishonestly This is exactly the same use of the Ghosh test as there was for s2. it is worth repeating that the examples of things that are not dishonest in s2 of the Theft Act 1968 do not apply here

4. Knowing the services are made available on the basis that payment In most cases, this will not be a problem as it is self-evident that the service is one for which payment is normally made either in advance of the service, at the time of the service or afterwards The defendant must get the service either by not paying for it or not paying in full if there is to be a conviction under s11

5. Avoids or intends to avoid payment in full or in part The key aspect here it that whilst avoiding payment is the gist of the offence, it is sufficient that the defendant intends to avoid payment This means that the defendant must intend to avoid payment for the service provided in full or in part and have that intention at the time that the service is obtained

Presumably, with banking services, this is a continuing act and so a later intention, whilst the service continues, will be sufficient It would appear that the intent must be never to pay the sum involved – this means that an honest belief that credit is being given will mean the offence is not being committed This would be consistent with the existing law with respect to making off without payment and the case of Allen (1985)

Allen (1985) – an intent not to pay means an intent not to pay permanently, so a mistaken but honest belief as to credit being given will mean the offence has not been given

Exam Q