DPP v Ray [1973] UKHL 3

House of Lords

Between

DPPAppellant

RayRespondent

The facts of this case have been fully set out by my noble and learned friend. Lord Morris of Borth-y-Gest, and I shall not repeat them. If a person induces a supplier to accept an order for goods or services by a representation of fact, that representation must be held to be a continuing representation lasting until the goods or services are supplied. Normally it would not last any longer. A restaurant supplies both goods and services: it supplies food and drink and the facilities for consuming them. Customers normally remain for a short time after consuming their meal, and I think that it can properly be held that any representation express or implied made with a view of obtaining a meal lasts until the departure of the customers in the normal course.

In my view, where a new customer orders a meal in a restaurant, he must be held to make an implied representation that he can and will pay for it before he leaves. In the present case the accused must be held to have made such a representation. But when he made it it was not dishonest: he thought he would be able to borrow money from one of his companions.

After the meal had been consumed the accused changed his mind. He decided to evade payment. So he and his companions remained seated where they were for a short time until the waiter left the room and then ran out of the restaurant.

Did he thereby commit an offence against section 16 of the Theft Act, 1968? It is admitted, and rightly admitted, that if the waiter had not been in the room when he changed his mind and he had immediately run out he would not have committed an offence. Why does his sitting still for a short time in the presence of the waiter make all the difference?

The section requires evasion of his obligation to pay. That is clearly established by his running out without paying. Secondly, it requires dis- honesty: that is admitted. There would have been both evasion and dishonesty if he had changed his mind and run out while the waiter was

absent.

1 he crucial question in this case is whether there was evasion " by any deception ". Clearly there could be no deception until the accused changed his mind. I agree with the following quotation from the judgment of Buckley J. in In re London and Globe Finance Co.

[1903] 1 Ch 728

' To deceive is, I apprehend, to induce a man to believe that a " thing is true which is false, and which the person practising the " deceit knows or believes to be false."

So the accused, 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 magistrates accepted the prosecution contention that:

"... as soon as the intent to evade payment was formed and the " Appellant still posed as an ordinary customer the deception had " been made."

The magistrates 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 appellant 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 accused 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:

" 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 arti- " ficiality which should have no place in the Act."

I would therefore dismiss this appeal.

Lord MacDermott

My Lords,

The respondent with four other young men entered a restaurant on the evening of 30th September, 1971, and he and three of his companions then ordered a meal. When this order was given the respondent intended to pay for his meal. The meal was duly served and there were no com- plaints. But after the respondent and the others had eaten it they had a discussion and decided to run out of the restaurant without paying. Some ten minutes later they did so while the waiter was absent in the kitchen. By then they had been almost an hour in the restaurant and, until they ran out, had maintained the demeanour of ordinary customers.

On 1st February, 1972, the respondent was brought before the Magis- trates' Court sitting at Gainsborough on an information arising out of this incident and alleging an offence under section 16(1) of the Theft Act. 1968. The terms of the charge were inapt, but no point was taken about this and before your Lordships counsel for the parties agreed that, in its substance, the offence charged was that the respondent on the occasion in question had dishonestly obtained for himself by deception a pecuniary advantage, namely, the evasion of a debt of 47 pence, the price of the meal he had consumed.

The Magistrates' Court found that the respondent had practised a decep- tion, and that, having made himself liable for a debt in respect of a meal, had by his deception dishonestly evaded payment. The Court accordingly found the case proved, convicted the respondent and fined him £1. It subsequently stated a case for the High Court which set out the facts and findings I have mentioned and asked whether, upon a true construction of section 16 of the Theft Act, 1968, the respondent was rightly convicted.

On 19th December, 1972, a Divisional Court (Lord Widgery C.J., Willis and Talbot JJ.) answered this question in the negative. From that decision the Director of Public Prosecutions now appeals by leave to your Lordships' House.

The material parts of subsections (1) and (2) of section 16 read—

" (1) A person who by any deception dishonestly obtains for himself " or another any pecuniary advantage shall on conviction on indictment " be liable to imprisonment for a term not exceeding five years.

" (2) The cases in which a pecuniary advantage within the meaning " of this section is to be regarded as obtained for a person are cases " where—

" (a) any debt or charge for which he makes himself liable or is or " may become liable (including one not legally enforceable) is " reduced or in whole or in part evaded or deferred ;. ..".

Section 29(2) of the Act of 1968 provides for the summary trial of offences under section 16 with the consent of the accused and subsection (3) of section 16 incorporates the meaning of " deception" contained in sub- section (4) of section 15 which says that" 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."

To prove the charge against the respondent the prosecution had to show that he(i) by a deception

(ii) had dishonestly

(iii) obtained for himself

(iv) a pecuniary advantage. The last of these ingredients no longer raises, on the facts of this appeal, the problems of interpretation which were recently considered by this House in Director of Public Prosecutions v. Turner. By that decision a debt is " evaded " even if the evasion falls short of being final or permanent and is only for the time being; and a pecuniary advantage has not to be proved in fact as it is enough if the case is brought within section 16(2) (a) or (b) or (c).

On the facts here, this means that the respondent's debt for the meal he had eaten was evaded for the purposes of subsection 2(a) ; and that in consequence he obtained a pecuniary advantage within the meaning of sub- section (1). No issue therefore arises on the ingredients I have numbered (iii) and (iv). Nor is there any controversy about ingredient (ii). If the respondent obtained a pecuniary advantage as described he undoubtedly did so dishonestly. The case is thus narrowed to ingredient (i) and that leaves two questions for consideration. First, do the facts justify a finding that the respondent practised a deception? And secondly, if he did, was his evasion of the debt obtained by that deception?

The first of these questions involves nothing in the way of words spoken or written. If there was deception on the part of the respondent it was by his conduct in the course of an extremely common form of transaction which, because of its nature, leaves much to be implied for conduct. An- other circumstance affecting the ambit of this question lies in the fact that, looking only to the period after the meal had been eaten and the respondent and his companions had decided to evade payment, there is nothing that 1 can find in the discernible conduct of the respondent which would suffice in itself to show that he was then practising a deception. No doubt he and the others stayed in their seats until the waiter went into the kitchen and while doing so gave all the appearance of ordinary customers. But in my opinion nothing in this or in anything else which occurred after the change of intention went far enough to afford proof of deception. The picture, as I see it, presented by this last stage of the entire transaction, is simply that of a group which had decided to evade payment and were awaiting the opportunity to do so.

There is, however, no sound reason that I can see for restricting the in- quiry to this final phase. One cannot, so to speak, draw a line through the transaction at the point where the intention changed and search for evi- dence of deception only in what happened before that or only in what happened after that. In my opinion the transaction must for this purpose be regarded in its entirety, beginning with the respondent entering the restaurant and ordering his meal and ending with his running out without paying. The different stages of the transaction are all linked and it would be quite unrealistic to treat them in isolation.

Starting then at the beginning one finds in the conduct of the respondent in entering and ordering his meal evidence that he impliedly represented 4

that he had the means and the intention of paying for it before he left. That the respondent did make such a representation was not in dispute and in the absence of evidence to the contrary it would be difficult to reach a different conclusion. If this representation had then been false and matters had proceeded thereafter as they did (but without any change of intention) a conviction for the offence charged would, in my view, have had ample material to support it. But as the representation when originally made in this case was not false there was therefore no deception at that point. Then the meal is served and eaten and the intention to evade the debt replaces the intention to pay. Did this change of mind produce a deception?

My Lords,

in my opinion it did. I do not base this conclusion merely on the change of mind that had occurred for that in itself was not manifest at the time and did not amount to " conduct" on the part of the respondent. But it did falsify the representation which had already been made because that initial representation must, in my view, be regarded not as something then spent and past but as a continuing representation which remained alive and operative and had already resulted in the respon- dent and his defaulting companions being taken on trust and treated as ordinary, honest customers. It covered the whole transaction up to and including payment and must therefore, in my opinion, be considered as continuing and still active at the time of the change of mind. When that happened, with the respondent taking (as might be expected) no step to bring the change to notice, he practised to my way of thinking a deception just as real and just as dishonest as would have been the case if his intention all along had been to go out without paying.

Holding for these reasons that the respondent practised a deception, I turn to what I have referred to as the second question. Was the respon- dent's evasion of the debt obtained by that deception?

I think the material before the justices was enough to show that it was. The obvious effect of the deception was that the respondent and his asso- ciates were treated as they had been previously, that is to say as ordinary, honest customers whose conduct did not excite suspicion or call for precau- tions. In consequence the waiter was off his guard and vanished into the kitchen. That gave the respondent the opportunity of running out without hindrance and he took it. I would therefore answer this second question in the affirmative.

I would, accordingly, allow the appeal and restore the conviction.

Lord Morris of Borth-y-Gest

My Lords,

The facts that have given rise to this appeal lie within a very small compass. The respondent went into the Wing Wah Restaurant in Gains- borough. He ordered and consumed some food. In respect of it he incurred a debt to the restaurant to the amount of 47p. He then decided that he would not pay. Biding his time until the waiter had gone out of the Restaurant to the kitchen he then ran out of the Restaurant. Were the Magistrates, who imposed a fine of £1 warranted in convicting him, as they did, of—

" evading the said debt by running out of the said Restaurant without " payment, contrary to Section 16(1) of the Theft Act 1968 "?

The Magistrates were asked to state a case and they did so. The facts

as found are very succinctly set out. The case when in draft was doubtless

made available to Defence and Prosecution. The only question stated was—

" whether upon a true construction of Section 16 of the Theft Act 1968

" the Appellant was rightly convicted."

It was common ground that the wording of the information as drafted was open to certain comments. Apart from the fact that the dishonest intention of the respondent was alleged to have been at the time when he ordered food which allegation was not proved and was disproved, the dishonest obtaining of a pecuniary advantage was laid as consisting of the obtaining of the meal. We were told that both at the hearing before the Magistrates and at the hearing in the Divisional Court, where the conviction was quashed, it was decided on behalf of the respondent that no point should be taken in regard to the form of the information: equally no point has been taken in this House: the case has proceeded on the basis that the effective allegation made against the respondent in the Information was that by deception he dishonestly evaded the debt which he had incurred. So the question under consideration has been whether on the facts as found, the respondent had by deception dishonestly obtained a pecuniary advantage for himself in that the debt for which he became liable was evaded.

Section 16(1) of the Theft Act 1968, under which subsection the Respondent was convicted, is in the following terms: —

" A person who by any deception dishonestly obtains for himself or " another any pecuniary advantage shall on conviction on indictment " be liable to imprisonment for a term not exceeding five years."

Subsection (2) of the section proceeds to set out—

"The cases in which a pecuniary advantage within the meaning of " this section is to be regarded as obtained for a person are cases " where—

" (a) any debt or charge for which he makes himself liable or is or " may become liable (including one not legally enforceable) is reduced " or in whole or in part evaded or deferred ;"

From the wording of the section it is clear that if the respondent became liable (in respect of his meal) for a debt and if he evaded that debt then he obtained a pecuniary advantage and he would be guilty under section 16 subsection (1) if he had dishonestly obtained that pecuniary advantage by any deception.

By section 16 subsection (3) " deception " has the same meaning as in section 15 and by subsection (4) of section 15 "' 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."

So it has to be considered whether the respondent practised some decep- tion whereby he obtained the financial advantage which he will be regarded as having obtained if he evaded his debt in the restaurant.

For a deception to take place there must be some person or persons who will have been deceived. " Deception " is a word which is well under- stood. As Buckley J. said in In re London and Globe Finance Corporation Limited [19031 1 Ch.728, 732—

' To deceive is. I apprehend, to induce a man to believe that a thing "is true which is false, and which the person practising the deceit " knows or believes to be false."

In the present case the person deceived was the waiter. Did the respondent deceive the waiter as to what were his intentions? Did the respondent so conduct himself as to induce the waiter to believe that he (the respondent) intended to pay his bill before he left the restaurant whereas at the relevant time he did not so intend?

In order to relate the law to the facts it will be desirable to have them clearly in mind. The respondent was in the company of four other men. We are, however, only concerned with the respondent. The facts recorded by the Magistrates were as follows: —

" (a) On the evening of the 30th September 1971 the appellant (who " is a University Student) and four other young men entered the Wing 6

"Wah Restaurant and four of them including the appellant, ordered " a meal.

" (b) At the time he entered the restaurant the appellant had only " ten pence on him, which was insufficient for a meal; one of the " other men had agreed to lend him some money to pay.

" (c) The appellant was served with a meal, which he ate without " making any complaint to the restaurant staff. A discussion took " place between the other young men who had had a meal, which the " appellant joined, and they decided not to pay for the meal and to " run out of the restaurant.

" (d) Some ten minutes later, and after being in the restaurant for " nearly an hour and maintaining the demeanour of ordinary customers, " the appellant and his four companions ran out of the restaurant " whilst the waiter had gone to the kitchen. No payment was offered " or made, and no money was left, for the meals served. Each of " the four had consumed only a main course.

" (e) After leaving the restaurant the appellant and the others ran " away, and hid from sight of an approaching Police vehicle."

They further recorded their opinion as follows: —

" (a) The appellant entered the restaurant intending that his meal " should be paid for, by one of his companions.

" (b) That he had no complaint on the quality of the meal, and " consumed it all.

" (c) That when his companions indicated a desire to evade pay- " ment, the appellant concurred in this and joined in the discussion of " how this was to be done.

" (d) 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 appellant practised " a deception.

" (e) That the appellant had made himself liable for a debt in respect " of a meal, and by his deception dishonestly evaded payment."

It is clear that the respondent went into the restaurant in the capacity of an ordinary customer. Such a person by his conduct in ordering food impliedly says—If you will properly provide me with that which I order, I will pay you the amount for which I will become liable. In some restaurants a customer might have a special arrangement as to payment. A customer might on occasion make a special arrangement. Had there been any basis for suggesting that the respondent was not under obligation to discharge his debt before he left the restaurant that would have been recorded in the Case Stated. All the facts as found make it unlikely that it would have been possible even to contend that in this case the debt incurred was other than one which was to be discharged by a cash payment made before leaving.

If someone goes to a restaurant and, having no means whatsoever to pay and no credit arrangement, obtains a meal for which he knows he cannot pay and for which he has no intention of paying he will be guilty of an offence under section 15 of the Theft Act. Such a person would obtain the meal by deception. By his conduct in ordering the meal he would be representing to the restaurant that he had the intention of paying whereas he would not have had any such intention. In the present case when the respondent ordered his meal he impliedly made to the waiter the ordinary representation of the ordinary customer that it was his intention to pay. He induced the waiter to believe that that was his intention. Furthermore, on the facts as found it is clear that all concerned (the waiter, the respondent and his companions) proceeded on the basis that an ordinary customer would pay his bill before leaving. The waiter would not have accepted the order or served the meal had there not been the implied representation.

The situation may perhaps be unusual where a customer honestly orders a meal and therefore indicates his honest intention to pay but thereafter forms a dishonest intention of running away without paying if he can. Inherent in an original honest representation of an intention to pay there must surely be a representation that such intention will continue.

In the present case it is found as a fact that when the respondent ordered his meal he believed that he would be able to pay. One of his companions had agreed to lend him money. He therefore intended to pay. So far as the waiter was concerned the original implied representation made to him by the respondent must have been a continuing representation so long as he (the respondent) remained in the restaurant. There was nothing to alter the representation. Just as the waiter was led at the start to believe that he was dealing with a customer who by all that he did in the restaurant was indicating his intention to pay in the ordinary way, so the waiter was led to believe that that state of affairs continued. But the moment came when the respondent decided and therefore knew that he was not going to pay: but he also know that the waiter still thought that he was going to pay. By ordering his meal and by his conduct in assuming the role of an ordinary customer the respondent had previously shown that it was his intention to pay. By continuing in the same role and behaving just as before he was representing that his previous intention continued. That was a deception because his intention, unknown to the waiter, had become quite otherwise. The dishonest change of intention was not likely to produce the result that the waiter would be told of it. The essence of the deception was that the waiter should not know of it or be given any sort of clue that it (the change of intention) had come about. Had the waiter suspected that by a change of intention a secret exodus was being planned, it is obvious that he would have taken action to prevent its being achieved.

It was said in the Divisional Court that a deception under section 16 should not be found unless an accused has actively made a representation hy words or conduct which representation is found to be false. But if there was an original representation (as in my view there was when the meal was ordered) it was a representation that was intended to be and was a continuing representation. It continued to operate on the mind of the waiter. It became false and it became a deliberate deception. The prosecu- tion do not say that the deception consisted in not informing the waiter of the change of mind ; they say that the deception consisted in continuing to represent to the waiter that there was an intention to pay before leaving.

On behalf of the respondent it was contended that no deception had been practised. It was accepted that when the meal was ordered there was a representation by the respondent that he would pay but it was contended that once the meal was served there was no longer any representation but that there was merely an obligation to pay a debt: it was further argued that thereafter there was no deception because there was no obligation in the debtor to inform his creditor that payment was not to be made. I cannot accept these contentions. They ignore the circumstance that the representation that was made was a continuing one: it's essence was that an intention to pay would continue until payment was made: by it's very nature it could not cease to operate as a representation unless some new arrangement was made.

A further contention on behalf of the respondent was that the debt was not in whole or in part evaded. It was said that on the facts as found there was an evasion of the payment of a debt but no evasion of the debt and that a debt (which denotes an obligation to pay) is not evaded unless it is released or unless there is a discharge of it which is void or voidable. I cannot accept this contention. Though a " debt ", as referred to in the section does denote an obligation to pay, the obligation of the respondent was to pay for his meal before he left the restaurant. When he left without paying he had, in my view, evaded his obligation to pay before leaving. He dodged his obligation. Accordingly he obtained a " pecuniary advantage ".

The final question which arises is whether, if there was deception and if there was pecuniary advantage, it was by the deception that the respondent

obtained the pecuniary advantage. In my view, this must be a question of fact and the Magistrates have found that it was by his deception that the respondent dishonestly evaded payment. It would seem to be clear that if the waiter had thought that if he left the restaurant to go to the kitchen the respondent would at once run out, he (the waiter) would not have left the restaurant and would have taken suitable action. The waiter proceeded on the basis that the implied representation made to him (i.e. of an honest intention to pay) was effective. The waiter was caused to refrain from taking certain courses of action which but for the representation he would have taken. In my view, the respondent during the whole time that he was in the restaurant made and by his continuing conduct continued to make a representation of his intention to pay before leaving. When in place of his original intention he substituted the dishonest intention of running away as soon as the waiter's back was turned, he was continuing to lead the waiter to believe that he intended to pay. He practised a deception on the waiter and by so doing he obtained for himself the pecuniary advantage of evading his obligation to pay before leaving. That he did so dishonestly was found by the Magistrates who, in my opinion, rightly convicted him.

I would allow the appeal.

Lord Hodson

My Lords,

The question submitted arises from a Certificate given by the Divisional Court in accordance with section 1(2) of the Administration of Justice Act, 1960, that a point of law of general public importance is involved in the decision in the said case.

The question is stated as follows:

"Whether a deception within Section 15(4) of the Theft Act 1968 " is proved when a person, who initially obtains credit honestly by " representing his willingness to pay, later dishonestly decides to evade " payment but fails to correct the original representation."

Section 15(4) contains these words:

" . . . ' deception' means any deception (whether deliberate or reck- " less) by words or conduct as to fact or as to law, including a decep- " lion as to the present intentions of the person using the deception or " any other person."

The Appellant prosecutor preferred an information against the Respon- dent which was heard by the Gainsborough justices on February 1st, 1972. He was charged with a deception in that on the 30th September, 1971, by his conduct in ordering and being served a meal in the Wing Wan Restaurant at Gainsborough, and impliedly holding out at that time an in- tention and an ability to pay on demand upon receipt of the bill, dishonestly obtained for himself a pecuniary advantage, namely, a meal to the value of 47p. and evaded the debt by running out of the said restaurant without payment contrary to section 16(1) of the Theft Act, 1968. The Respondent was convicted. This conviction was quashed by the Divisional Court on the ground that the evidence did not support any finding that there had been a deception whereby there was an evasion of the debt. The Respon- dent's appeal was accordingly allowed.

Section 16(1) of the Theft Act, 1968, provides:

" A person who by any deception dishonestly obtains for himself "or another any pecuniary advantage shall on conviction on indict- " ment be liable to imprisonment for a term not exceeding five years."

The matter came before the Divisional Court on a Case Stated by the Gainsborough Magistrates which shows the facts found by them and ex- plains the form in which the question for your Lordships has been framed.

The following facts were found:

" (a) On the evening of the 30th September 1971 the appellant (who " is a University Student) and four other young men entered the Wing " Wah Restaurant and four of them including the appellant, ordered " a meal.

" (b) At the time he entered the restaurant the appellant had only " ten pence on him, which was insufficient for a meal; one of the other " men had agreed to lend him some money to pay.

" (d) Some ten minutes later, and after being in the restaurant " for nearly an hour and maintaining the demeanour of ordinary cus- " tomers, the appellant and his four companions ran out of the restau- " rant whilst the waiter had gone to the kitchen. No payment was " offered or made, and no money was left, for the meals served. Each " of the four had consumed only a main course.

" (e) After leaving the restaurant the appellant and the others ran " away, and hid from sight of an approaching Police vehicle."

The Magistrates were of opinion:

" (a) The appellant entered the restaurant intending that his meal " should be paid for. by one of his companions.

" (b) That he had no complaint on the quality of the meal, and " consumed it all.

" (c) That when his companions indicated a desire to evade payment, " the appellant concurred in this and joined in the discussion of how " this was to be done.

" (d) That having changed his mind as regards payment, by remain- " ing in the restaurant for a further ten minutes as an ordinary " customer who was likely to order a sweet or coffee, the appellant " practised a deception.

" (e) That the appellant had made himself liable for a debt in " respect of a meal, and by his deception dishonestly evaded payment."

and accordingly found the case proved, convicted the Respondent and ordered him to pay a fine of £1.

The question stated for the opinion of the High Court is whether upon a true construction of section 16 of the Theft Act, 1968, the Respondent was rightly convicted.

The question is certainly a puzzling one since the facts as found do not suggest that the meal obtained by the Respondent was dishonestly obtained as a pecuniary advantage. What is found is that the Respondent changed his mind as regards payment and practised a deception by remaining in the restaurant for a further ten minutes as an ordinary customer who was likely to order a sweet or coffee.

There is no doubt that the Respondent evaded payment of the debt by walking out of the restaurant with his companions, but the prosecution has always accepted that there was no deception in the first instance because the intention was to pay for the meal when ordered.

It is argued, however, that a representation having been made at the time the credit was honestly obtained, the Respondent later dishonestly decided to evade payment by failing to correct the original representation.

To answer the submitted question, it is necessary to follow the definition of deceit which I have cited from section 15(4). The deceit is in essence the same as that long recognised when a person is charged with obtaining

property by fraud. There must be some deceit spoken, written or acted to constitute a false pretence. See Regina v. Jones

[1898] 1 QB 119

C.C.R.

There having been no deception in the first instance since the Respondent and his companions intended to pay for the meal, the question is, was a deception practised so as to evade the debt or obligation when having consumed the meal they left without paying for it.

One who enters into a contract is taken to have the intention of carrying it out, but if he changes his mind and decides not to pay he may be guilty of a breach of his contractual obligation but not necessarily of evading the debt by deception. The deception must be proved whereby a pecuniary advantage was obtained.

The vital question is whether by sitting in the restaurant for ten minutes after having consumed the meal the Respondent was guilty of deception when he departed without paying.

If he had no intention of paying at the outset cadit quaestio. If, on the other hand, his representation made at the outset was honest, I find it diffi- cult to accept that the effect of the original representation continues so as to make subsequent failure to pay his creditor, automatically, so to speak, an evasion of debt obtained by deception.

Whether any evidence was given by a waiter is not disclosed. The case states that the waiter had gone to the kitchen and that during his absence the Respondent and his four companions ran out of the restaurant after having been there for nearly an hour and maintaining the demeanour of ordinary customers. Would the reasonable man say that a deception had been practised on him? Evade the debt the Respondent did, but no more than any other debtor who, having originally intended to pay for a pecuniary advantage, subsequently changes his mind and evades his contractual obliga- tion by not paying.

In order to suceed the prosecution must rely on the original representa- tion honestly made by the Respondent when he entered the restaurant as a continuing representation which operated and lulled the restaurant proprietor into a sense of security so that the Respondent was enabled to leave as he did.

I do not recollect that the prosecution put the case in this way but I think it is most formidable if so presented, for if the representation continued it was falsified by the change of mind of the Respondent.

It is trite law and commonsense that an honest man entering into a contract is deemed to represent that he has the present intention of carrying it out but if, as in his case, having accepted the pecuniary advantage involved in the transaction he does not necessarily evade his debt by deception if he fails to pay his debt.

Nothing he did after his change of mind can be characterised as conduct which would indicate that he was then practising a deception.

To rely on breach of a continuous representation I suggest that in adminis- tering a criminal statute this is going too far and seems to involve that the ordinary man who enters into a contract intending to carry it out can be found guilty of a criminal offence if he changes his mind after incurring the obligation to pay unless he has taken a step to bring the change of mind to the notice of his creditor.

The Appellant sought to support the argument, that there was a duty on the Respondent to correct his original representation, by authority.

With v. O'Flanagan

[1936] Ch. 575

is good authority for the proposition that if a person who makes a representation, which is not immediately acted upon, finds that the facts are changing he must, before the representation is acted upon, disclose the change to the person to whom he has made the representation.

That case concerned the sale of a medical practice. The seller, a doctor. represented that his practice was profitable. This was true when the repre- sentation was made but by the time the contract was signed the practice had dwindled to practically nothing. This was not disclosed to the purchaser who, on discovery, sought rescission. It was held that the statement made, though true at the time, had become untrue during the negotiations and that there was an obligation to disclose the fact to the purchaser.

The earlier case of Traill v. Baring (1864) De G.J. & S. 318 was cited. It contains the following passage from the judgment of Turner L.J: —

" I take it to be quite clear, that if a person makes a representation " by which he induces another to take a particular course, and the " circumstances are afterwards altered to the knowledge of the party " making the representation, but not to the knowledge of the party " to whom the representation is made, and are so altered that the " alteration of the circumstances may affect the course of conduct " which may be pursued by the party to whom the representation is " made it is the imperative duty of the party who has made the repre- " sentation to communicate to the party to whom the representation " has been made the alteration of those circumstances and that this " Court will not hold the party to whom the representation has been " made bound unless such a communication has been made."

This authority does not assist the Appellant as to continuity of represen- tation generally. The position there taken was based upon a duty to com- municate a change of circumstances which had occurred after a representa- tion, true when made, had been falsified by the time the contract was entered into. Here no contract was entered into following a deception of any kind.

The Respondent was in breach of his obligation to pay his debt but I agree with the conclusion of the Divisional Court that there was no evi- dence that he evaded it by deception.

I would dismiss this appeal.

Lord Pearson

My Lords,

The relevant provisions of the Act, and the findings and opinions of the magistrates as recorded in the Case Stated, are set out in the opinion of my noble and learned friend, Lord Morris of Borth-y-Gest.

The essential feature of this case, in accordance with the magistrates' findings and opinions as I understand them, is that there was a continuing representation to be implied from the conduct of the respondent and his companions. By " continuing representation " I mean in this case not a continuing effect of an initial representation, but a representation which is being made by conduct at every moment throughout the course of conduct. The course of conduct consisted of:(i) entering the restaurant, sitting down at a table and probably looking at the menu;

(ii) giving to the waiter an order for a main course to be served ;

(iii) eating the main course ;

(iv) remaining at the table for about ten minutes. The remaining at the table for that time was consistent in appearance with continuing their con- versation and deciding whether or not to order another course. In my opinion all those actions can properly be regarded as one course of conduct continuing up to but not including the running out of the restaurant without paying. That is where the course of conduct was broken off. Up to the moment of running out they were behaving ostensibly as ordinary customers of the restaurant, and ordinary customers of such a restaurant intend to pay for their meals in the appropriate manner before leaving the restaurant. The appropriate manner would normally be, according

to the arrangements in the particular restaurant, either by paying the waiter at the table or by paying a cashier at a desk near the exit.

By definition " deception " includes—

" any deception ... by conduct ... as to the present intentions of " the person using the deception ".

In my view, the magistrates could and did reasonably imply from the course of conduct a representation by the respondent that he had a present intention of paying for his meal before leaving the restaurant. It was a continuing representation in the sense that I have indicated, being made at every moment throughout the course of conduct. In so far as it was being made before the decision to run out without paying, it was according to the magistrates' finding a true representation of the respondent's then present intention. In so far as it was being made after that decision, it was a false representation of the respondent's then present intention, and of course false to his knowledge. That false representation deceived the waiter, inducing him to go to the kitchen, whereby the respondent, with his com- panions, was enabled to make his escape from the restaurant and so dishonestly evade his obligation to pay for his meal. Thus by deception he obtained for himself the pecuniary advantage of evading the debt.

In my opinion, the respondent was rightly convicted by the magistrates. I would allow the appeal and restore the conviction and sentence.