The cases of Charles [1977] and Lambie [1982], confirmed that presentation of a bank card could be inferred as a representation that the person in possession of the card has authority to use it. In both cases it was held that if by the defendant’s representation, the transaction was induced, there was deception, and the pecuniary advantage was dishonestly obtained, establishing mens rea. The advantage was pecuniary advantage was obtained by deception, establishing actus reus of the offence. In this case, Aslam had no authority to use the card as his account was closed. Therefore, he acted dishonestly to obtain a pecuniary advantage. However, in his defence he could argue there was a lack of causation in the transaction. In the case of Doukas [1977] it was established that had the other party been aware of the full circumstances, they would not allow the transaction. In the cases of Charles and Lambie the chief concern of the other party was receiving payment. This is likely to be the case in this situation as well; therefore Bob would probably not have prevented the transaction.
To prosecute for obtaining services by deception, the prosecution would need to establish that when Bob completed the work, Aslam had no intention of paying. The case of Webb [2001] ascertained that if it can be established that the defendant had no intention of paying, despite making a representation to do so, they would be guilty of obtaining services by deception. Aslam would have known that his bank account was closed, indicating he had no intention of paying. However, the case of Webb can be distinguished because Aslam has a genuine contact address so could not avoid being contacted, indicating he did not intend not to pay, whereas in Webb, he had given false contact details.
Bob may also be charged with obtaining a pecuniary advantage by deception. He may be charged with making off without payment or theft. Under the 1978 Act, the actus reus of evasion of liability is secure remission, make permanent default or obtain exemption, all with deception. The mens rea is deception as deliberate or reckless and dishonesty or intent. For making off without payment, the actus reus is making off without payment, and the mens rea is knowing that payment is required, dishonesty, and intent to avoid payment. Under s.1 of the 1968 Act, the actus reus for theft is appropriation of property belonging to another and the mens rea is dishonesty and intention to permanently deprive.
Bob’s ad is similar to Callender [1992], in which it was held that the defendant had made false representations about his ability and qualifications, and used these to obtain greater remuneration in employment. This satisfies both the actus reus and mens rea for obtaining a pecuniary advantage by deception. It would be difficult to defend against this charge, as the circumstances are almost identical to Callender. His claim he could do just as good a job as someone qualified was comparable to Clarke [1996]. In that case, the defendant made a similar claim to Bob, and he had some experience in that area of work so the claim had some honesty behind it. Bob however, had no previous experience as a decorator so his claim was mush less credible, therefore distinguishing the two cases.
For making off without payment, the case of Allen [1985] provided a test, which was that it must be proved that the defendant did not pay on the spot, knowledge on the part of the defendant that payment on the spot was required, dishonesty and intention to avoid payment by the defendant. It is known that Bob did not pay on the spot and he knew that that was required, as he shouted a company name to whose account the bill should be charged. He was dishonest with the company name as he gave the name of a neighbouring company, which can also prove he was intent on avoiding payment. Therefore the test is satisfied and Bob can be found guilty of making off without payment. Before the introduction of the 1978 Act, he could have been charged with theft of the petrol, but would have probably been acquitted using the case of Edwards [1976], in which it was decided that since the owner’s petrol had become indistinguishable from the defendant’s he could not be charged with theft of it as the actus reus could not be established.
To summarise, Aslam is probably guilty of obtaining services by deception or obtaining pecuniary services by deception. It is unlikely he would be convicted for both. Bob is probably guilty of obtaining pecuniary services by deception and making off without payment, but not guilty of theft.
