In Firth however which occurred in 1990 after the passing of the 1978 Act the courts came to the conclusion that where there was a duty to disclose information then a failure to do that was conduct and came with within the meaning of deception. The decision in this case is more justifiable than DPP vs. Ray.
The deception must be the operative cause of the obtaining of property, and this is a question of fact for the jury to decide, requiring proof that the victim would not have acted in the same way had he or she known the truth. In R v Laverty although the defendant put new number plates and a new chassis number on a car, the victim bought the car because he thought Laverty was the owner. There was no proof that that the false identification plates were the cause of the obtaining. This would suggest that if the victim admits not caring whether the defendant's representation was true or false, an acquittal must follow. But, in Charles, an underlying link was implied even though the victim admitted not considering the question of whether the bank would or would not honour the cheque. Similarly, in R v Talbott the defendant gave false details and obtained housing benefit. She was actually entitled to the benefit, but causation was established by the fact that the benefit officer would not have paid her if she had known the defendant was lying. This "constructive" deception is necessitated because many shop assistants and officials may be personally uncaring as to whether the defendant is honest or not. To clarify this aspect of the law, the Law Commission recommend the introduction of a specific offence to cover the use of cheque guarantee and payment cards to remove the need for any implied representation to affect the mind of the particular person accepting the use of the card. This would identify the bank as the true victim.
Despite the clear evidence that the deception in the two cases had not been the cause of the obtaining, the House of Lords upheld the convictions of the defendants, the law here seems to be acting in an unsatisfactory manor and although they treated like cases alike they treated them in the wrong way.
There have been problems too regarding ca defendant who pays for something using his or her own cheque or credit card as it is difficult to see what the deception is in such circumstances, The courts have created liability by holding that the user is representing that he has the authority of the bank or card company to uses the card. This can be criticised as it is criminalising conduct which would normally be a civil debt and could be dealt with through debt processing in the civil courts. However there has been a confliction regarding this and leading to the law on deception being seen as unsatisfactory in the cases of Fitzeal Nabina and Lambie.
In the case of Fitzeal Nabina the defendant obtained credit cards in his own name by false pretences obtained credit cards in own name but under false pretences, used the card in various shops however the defendant was found not guilty of obtaining property by deception contrary to s15 of the Theft Act 1968. This was because the Court Of Appeal held he had the authority of the card companies to use the cars. It was true he obtained the cards by a deception, but he was not charged with obtaining the cards, only the obtaining of the goods by using the cards. The card companies were entitles to revoke his right to use the cards but until they did so he had authority to continue using the cards and so was not deceiving people. Since he had not deceived, the conviction was quashed however in Lambie it was not even though after being told that the card needed to be returned he continued to use it and was convicted. This therefore outlines a clear unsatisfactory point on the law on deception.
Since the defendant has to make a deception deliberately or recklessly there would appear to be dishonesty on the part of the defendant in every deception case. Yet in all offences of deception the Acts also require the prosecution to prove that the defendant has acted dishonestly. Does this requirement add anything to the offences? It appears the law would be satisfactory if the requirement for dishonesty was not included.
Obtaining services by deception has been a critical point and has been seen by many as highly unsatisfactory. There must be a deception which, according to s5(1), has the same meaning as in section 15(4) of the Theft Act 1968, i.e. 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. This deception must be the cause of the obtaining. The defendant must obtain a service as defined in s1 (2), i.e. the victim must confer a benefit on the defendant. The 'services' must be unjustified. It must be conferred by the doing, causing, or permitting of some act; a failure to act which confers a benefit is not sufficient. Thus, a person who employs a lawyer or accountant without ever intending to pay may commit an offence under s1. But a person who lies to a neighbour to secure the loan of a power drill does not commit an offence because the benefit is not obtained on the understanding that it has been or will be paid for. In R v Halai, the defendant made false statements in an application for a mortgage and thereby obtained a survey, the opening of an account and a mortgage advance. Note that the Theft Amendment Act 1996 introduced s.1 (3) specifically to provide that a loan amounts to a service. This dispenses with that part of the decision in Halai (which had been overruled by R v Graham prior to the Act) As to the opening of an account, contrast R v Shortland in which the Court of Appeal held that, on the evidence presented, opening bank accounts under false names did not amount to the s1 offence, but suggested that it might have done if evidence that it had to be paid for had been presented. The Mens Rea for all offences is dishonesty. The law has been criticised due to its lack of decisiveness regarding the case of Halai and their decision that a mortgage was not services within the meaning of s1 1978.
Evasion of a liability by a deception has in itself been under scrutiny as to the laws role in keeping this area of the law satisfactory. It is however the area of law that caused the greatest problems. The case of R v Sibartie illustrates the problem of overlap between the subsections which in turn causes confusion, conflict and makes the law unsatisfactory.
In R v Sibartie, the defendant was convicted of attempting s2(1)(c) when he deceived a ticket collector on the underground into believing that he had paid for the whole of his journey. In fact, he had only purchased tickets which covered the first few and last few stations in his journey. The court of first instance said that that was a dishonest attempt to obtain an exemption from the liability to pay the excess. On appeal, it was argued that this was an attempt to induce the creditor to forgo payment of part under s2 (1) (b). The Court of Appeal held that although this illustrated the overlap between s.2 (1) (b) and s.2 (1) (c), it did not make liability under s.2 (1) (c) wrong. This case shows there is too much overlap between the offences which could cause confusion. The only clear difference is that s2 (1) (b) requires proof that the defendant intends to make permanent default. This requirement is not included in the other two subsections.
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