It is now important to establish the mens rea of the defendant; at what point did he decide to steal the trousers? Was there an awareness of entering as a trespasser? If the defendant had already decided to steal the trousers prior to entering the store then clearly he is liable for burglary, as he would therefore have had the intention to steal on entry.
However even if he did not have the intention to steal upon entering the store, there may still have been an act of burglary as the cubicle may well be classified as a ‘part’ of the building (In R v Walkington (1979) the area behind the till counter was held to be a ‘part of a building’).
The defendant’s liability lies therefore in the question of at which point he had the intention to deprive the store of the trousers. Had the defendant planned to steal before entering the store then he will be liable for prosecution under S 9 of the Theft Act. Had the defendant entered the store with no such intention then the question becomes slightly more complex. If as mentioned the defendant entered the cubicle with the intention to steal, then it seems quite conceivable that he will be seen as a trespasser and once more liable for burglary. However should he have only subsequently decided to steal then he can not be defined as a trespasser, and is not guilty of burglary. Whatever the outcome of a jury’s decision on whether the defendant is guilty of burglary, he will at the very least certainly be guilty of theft.
Making off without payment/ Deception:
Taxi:
S 3 TA 1978 says ‘a person who, knowing that payment ‘on the spot’ for any good supplied or service done is required or expected from him, dishonestly makes off without having paid as required or expected and with intent to avoid payment of the amount due shall be guilty of an offence’. As Brooks and Brooks (1982) shows, ‘making off’ can be either stealthy or not and with the creditors consent or not.
In this case the taxi driver was likely to expect the defendant to return to the taxi after a short wait then receive full payment at the final destination. Clearly the defendant was gone far longer than expected (the driver would be unlikely to wait more than a few minutes) and the defendant, once he went to the Gas Board Offices, had clearly left the ‘spot’ where payment would have been reasonably expected by the taxi driver now that the defendants friend had not yet arrived.
S (1) Theft Act 1978 states that a false statement is required and that the defendant must have acted dishonestly. Upon entering a taxi it is naturally assumed that you will pay for the service you have received at the end of your journey. In this situation however this never occurred as the defendant asked the driver to wait whilst he collected his friend, after which he said he would return and complete the journey- presumably where the final payment would take place. However as we have seen the defendant never returned and the key questions are when the false statement that the defendant would return was made- and whether at the time of saying it the defendant knew his statement to be false. The Theft Act states that the false statement must come before the ‘obtaining’ of the service this clearly further complicates the situation: if the defendant had planned from the very moment the first entered the taxi to ‘make off’ at the station, then clearly this would be obtaining goods by deception, likewise had the defendant honestly intended to return to the taxi, but once his friend was not at the station other things had distracted him and he simply forgot to return then it is likely that no deception occurred.
There are of course two other less clear cut situations: had the defendant decided just before leaving the taxi at the station that he had no plans of returning then presumably he could still be found guilty of deception despite the fact that this was not the first time he entered the taxi. This is due to the fact the defendant had originally asked to go to the station and once at the station had re-negotiated the journey. Finally there is the possibility that the defendant left the taxi originally with an honest intention to return, however once his friend was late he saw the opportunity to leave without paying and took it. As this would have occurred after he left the taxi no actual false representation occurred and the defendant would not be liable.
Payment of Gas Bill:
In this situation making off without payment as defined by S 3 (1) Theft Act 1978, is likely to have difficulty in succeeding for the prosecution. This is mainly due to the fact that the defendant has not received any goods or services at the place where he has paid. Furthermore the “deception” used by the defendant was done after the gas had been obtained; R v Collis-Smith (1971) implies that there would be no grounds for a prosecution for burglary here, so it seems that S (1) TA 1978 (obtaining services by deception) would not apply.
Both s.15 of the Theft Act 1968 and s.1 of the Theft Act 1978 require the Defendant to be reckless in the Cunningham sense i.e. D must consciously take an unjustified risk. He could be said to be consciously taking a risk as he has had a prior warning from the credit card company and is unsure of his available credit and yet he continues to take the risk of using his credit card. However, such offences require the deception to precede and cause the obtaining of goods or services, as the gas has already been supplied, this cannot be satisfied. (R .v Collins-Smith [1971])
Under s.2(1)(a) or (c) the Defendant could be found liable of obtaining the evasion of liability by deception. In R v. Jackson [1983] it was held that the use of a stolen credit card could constitute this offence since the creditor would look to the credit card company for payment, rather than the user of the card. Similarly here, the gas company would look to the credit card company for payment, regardless of the state of D’s credit limit.
