Regina v Rai (1999) the Times, November 10, Court of Appeal
The Statutes
Section 15 of the 1968 Act provides:
"(4) ... ‘deception’ means any deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including a deception as to the present intentions of the person using the deception or any other person."
Section 1 of the 1978 Act provides:
"(1) A person who by any deception dishonestly obtains services from another shall be guilty of an offence."
JUDGE DAVID CLARKE, QC, delivering the judgment of the court, said that in June 1996 Rai applied to Birmingham City Council social services for a grant in order to provide adaptions and bathroom access in his home for his elderly and infirm mother.
In March 1997, the council agreed to provide assistance to the value of approximately £9,500 by providing adaptations to Rai’s house and completion of work to a ground floor extension there.
Without knowing that Rai’s mother had died in July 1997, the council began the works in August and completed them in October 1997. The council later discovered that the mother had already died before the works began.
Before the opening of the Crown’s case, counsel for Rai, accepting that his client had remained silent as to his mother’s death prior to completion of the works, invited the judge to make a ruling as to whether that mere silence and inactivity could constitute conduct giving rise to a deception within section 15(4) of the 1968 Act and section 1(1) of the 1978 Act. As a consequence of the judge’s ruling that it could, Rai pleaded guilty.
His Lordship said that the judge was correct to adopt the reasoning of the House of Lords in DPP v Ray [1974] AC 370 and find as he did on the basis that Rai’s conduct viewed as a whole had amounted to a continuing representation that his mother was alive and that it was his intention that she benefit from the works.
Once she had died he could no longer have had that intention and he had a newly formed one which falsified the representation.
By sitting doing nothing and allowing the work to be done in his house where he lived continuously at all material times while the council was still of the mind that the mother would occupy the extension, Rai was committing a straightforward deception.
The Decision
Conduct amounting to positive acquiescence could constitute conduct amounting to deception for the purposes of section 15(4) of the Theft Act 1968 and the offence of obtaining services by deception contrary to section 1(1) of the Theft Act 1978.
The Court of Appeal, so held when dismissing an appeal by Rai against his conviction at Crown Court for dishonestly obtaining building services from Birmingham City Council by deception, contrary to section 1(1) of the Theft Act 1978.
Comment
We can remind ourselves of the facts in Ray.
The accused went into a restaurant and ordered a meal. When his order was taken the accused intended to pay for the meal. The meal was duly served and the accused made no complaints. After he had eaten it he changed his mind about paying for it and decided to leave without doing so. Having made that decision he remained at his table for some ten minutes until the waiter went out of the room, whereupon he left the restaurant. He was convicted of dishonestly obtaining for himself a pecuniary advantage, i.e. the evasion of his debt to the restaurant, by deception, contrary to s 16(1) of the Theft Act 1968. His conviction was quashed by the Divisional Court on the ground that no deception had been practised within s 16(1) since it had not been shown that the accused had actually made, by words or conduct, a false representation within s 15(4) of the Act. The Crown appealed.
Held –(Lord Reid and Lord Hodson dissenting)—The appeal would be allowed and the conviction restored. In determining whether there had been a deception by the accused the court had to have regard to his conduct throughout the time that he was in the restaurant; on ordering the meal he had impliedly made to the waiter the ordinary representation of an ordinary customer that he had the means and the intention of paying for it before he left; the waiter acted on that representation; it was a continuing representation and it would not cease to operate whilst the accused was in the restaurant unless some new arrangement was made. It followed that, since there was nothing discernible in the conduct of the accused after he had decided not to pay for the meal to show that his initial representation had become false, he had practised a ‘deception’ on the waiter by ostensibly continuing to represent to him that he intended to pay for the meal before leaving. By that deception he had dishonestly obtained a pecuniary advantage for himself by evading his obligation to pay for the meal
Although outvoted by the three Law Lords who allowed the Appeal; in part of his judgment Lord Reid, who dissented, said, "So the respondent, after he changed his mind, must have done something intended to induce the waiter to believe that he still intended to pay before he left. Deception, to my mind, implies something positive. It is quite true that a man intending to deceive can build up a situation in which his silence is as eloquent as an express statement. But what did the accused do here to create such a situation? He merely sat still.
It is, I think, apparent from the case stated that the justices accepted the prosecution contention that:
‘… as soon as the intent to evade payment was formed and the [respondent] still posed as an ordinary customer the deception had been made.’
The justices stated that they were of opinion that:
‘… having changed his mind as regards payment, by remaining in the restaurant for a further ten minutes as an ordinary customer who was likely to order a sweet or coffee, the [respondent] practised a deception.’
I cannot read that as a finding that after he changed his mind he intended to deceive the waiter into believing that he still intended to pay. And there is no finding that the waiter was in fact induced to believe that by anything the respondent did after he changed his mind. I would infer from the case that all that he intended to do was to take advantage of the first opportunity to escape and evade his obligation to pay.
Deception is an essential ingredient of the offence. Dishonest evasion of an obligation to pay is not enough. I cannot see that there was, in fact, any more than that in this case. I agree with the Divisional Court that [1973] 1 All ER 860 at 865,[1973] 1 WLR 317 at 323 per Talbot J:
‘His plan was totally lacking in the subtlety of deception and to argue that his remaining in the room until the coast was clear amounted to a representation to the waiter is to introduce an artificiality which should have no place in the Act.’"
That, as said, was a dissenting view, but it is good to consider what the contrary argument was.
Another germane case referred to in this judgment, was R v Firth (1991) 91 Cr App Rep 217, 154 JP 576, which is a case in which the relevant deception was by omission rather than by positive conduct. The facts of that case are briefly:
"The defendant was a consultant gynaecologist. In consequence of his not telling a hospital that certain patients were private patients, either he or those patients were not charged for certain tests done or for in-patient treatment. He was charged with four counts alleging evasion of a liability by deception, contrary to section 2(1)©. His conduct was found to have been deliberate and dishonest, but it was argued on appeal that there had to be some act of commission for the offence to be established. This was rejected, the court saying that if it was incumbent on him to give the information to the hospital, and he deliberately and dishonestly refrained from doing so with the result that no charge was levied, the wording of the section was satisfied."
Rob Jerrard