R v Allen [1984] UKHL 6

House of Lords
Between
RAppellantAllenRespondent
Before
Lord Hailsham of St
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Criminal Division) of the 23rd day of July 1984 complained of in the said Appeal be, and the same is hereby, Affirmed, that the Certified Question be, and the same is hereby, answered in the Affirmative, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Costs of both the Appellant and the Respondent in respect of the said Appeal be paid out of Central Funds pursuant to section 10 of the Costs in Criminal Cases Act 1973, the amount thereof to be certified by the Clerk of the Parliaments.

Cler: Parlaimentor

HOUSE OF LORDS

REGINA (APPELLANT)

V.

ALLEN (RESPONDENT)

(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION))

Lord Chancellor Lord Scarman Lord Diplock Lord Bridge ofHarwich Lord Brightman

LORD HAILSHAM OF ST. MARYLEBONE L.C.

My Lords,On 24 November 1983 the present respondent was arraigned at Southwark Crown Court on an indictment containing three counts under the Theft Act 1978.In the events which happened the jury was discharged from giving a verdict on counts 1 and 3 which related respectively to section 2(1)( b ) and section 1 of the Act. Following a specific question by the jury and the judge's answer to it which form the subject matter of this appeal the respondent was convicted on count 2 which charged an offence under section 3.The respondent appealed from this conviction and on 23 July 1984, after a hearing extending over three days, the Court of Appeal (Criminal Division) (Watkins L.J., Boreham and Stuart-Smith JJ.) allowed the appeal and quashed the conviction.In refusing leave to appeal to your Lordships' House, the Court of Appeal certified the following point of law of general public importance:
"Upon a construction of the words "with intent to avoid payment' in section 3(1) of the Theft Act 1978, namely, whether an intention to make permanent default on payment is required."
Leave to appeal was subsequently granted by the Appeal Committee of your Lordships' House on 25 October 1984.Count 2 of the indictment, which resulted in the conviction appealed from, read as follows:
"Statement of Offence. Making off without payment, contrary to section 3 of the Theft Act 1978. Particulars of offence. Christopher Allen, on a day between 8 and 11 February 1983, knowing that payment on the spot for goods supplied and services done was required or expected from him, dishonestly made off without having paid as required or

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expected and with intent to avoid payment of the £1,286.94 due."

The facts, which are not disputed, and which I draw from the case for the appellant, were as follows. The respondent, Christopher Allen, booked a room at an hotel for 10 nights from 15 January 1983. He stayed on thereafter and finally left on 11 February 1983 without paying his bill in the sum of £1,286.94. He telephoned two days later to explain that he was in financial difficulties because of some business transactions and arranged to return to the hotel on 18 February 1983 to remove his belongings and leave his Australian passport as security for the debt. He was arrested on his return and said that he genuinely hoped to be able to pay the bill and denied he was acting dishonestly. On 3 March 1983, he was still unable to pay the bill and provided an explanation to the police of his financial difficulties.The respondent's defence was that he had acted honestly and had genuinely expected to pay the bill from the proceeds of various business ventures.After a fairly lengthy summing up by the trial judge to which, in the light of what happened, I need make no special reference, the jury retired at 1.00 p.m. and came back at 2.18 p.m. with a note containing the following specific question for guidance by the judge:
"Regarding count 2 of the indictment, the words 'and with intent to avoid payment of the £1,286.94,' do you refer to permanent intention or one applying only to the dates mentioned in the charge?"
To this question

the judge gave the following explicit answer:

"The answer is: one applying only to 8 and 11 February 1983. You see it says in count 2, 'knowing that payment on the spot for goods supplied and services done was required or expected from him . . .' 'On the spot' means the day you leave. There was no payment on the spot when he should have paid. It contrasts sharply with count 1 where the intent there is permanent: that is not so in count 2 where he was required to pay on the spot; and there has been a failure to do that. Will you please, once more, retire to consider your verdict."
The original summing up had contained the same direction, but in view of what happened there is no need to refer to it separately, for the effect on the jury of this specific reply was immediate and decisive.Within five minutes they returned the verdict of guilty.Despite some (though not unanimous) text book opinions in an opposite sense (see Smith, The Law of Theft, 5th ed. (1984), para. 250, p. 130, Griew, The Theft Acts 1968 and 1978, 4th ed. (1982), para. 11-14, p. 155, and, less strongly, Glanville Williams, Textbook of Criminal Law, 2nd ed. (1983), p. 878), I consider this answer to be clearly erroneous.

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Section 3(1) of the Act of 1978, under which count 2 was laid, reads as follows:
"Subject to subsection (3) below," (which with subsection (4) is irrelevant for this purpose) "a person who, knowing that payment on the spot for any goods supplied or services 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."
The offence thus created is triable only on indictment and attracts a maximum penalty of two years.The appellant's contention was that the effect of this section is to catch not only those who intend permanently to avoid payment of the amount due, but also those whose intention is to avoid payment on the spot, which, after all, is the time at which, ex hypothesi, payment has been "expected or required," and the time, therefore, when the "amount" became "due."The judgment of the Court of Appeal, with which I agree, was delivered by Boreham J. He said [1985] 1 W.L.R. 50, 57:
"To secure a conviction under section 3 the following must be proved: (1) that the defendant in fact made off without making payment on the spot; (2) the following mental elements - (a) knowledge that payment on the spot was required or expected of him; and (b) dishonesty; and (c) intent to avoid payment [sc. 'of the amount due']."
I agree with this analysis. To this the learned

judge adds the following comment:

"If (c) means, or is taken to include, no more than an intention to delay or defer payment of the amount due it is difficult to see what it adds to the other elements. Anyone who knows that payment on the spot is expected or required of him and who then dishonestly makes off without paying as required or expected must have at least the intention to delay or defer payment. It follows, therefore, that the conjoined phrase 'and with intent to avoid payment of the amount due' adds a further ingredient - an intention to do more than • delay or defer - an intention to evade payment altogether."
My own view, for what it is worth, is that the section thus analysed is capable only of this meaning. But counsel for the appellant very properly conceded that, even if it were equivocal and capable of either meaning, in a penal section of this kind any ambiguity must be resolved in favour of the subject and against the Crown. Accordingly the appeal falls to be dismissed either if on its true construction it means unambiguously that the intention must be permanently to avoid payment, or if the clause is ambiguous and capable of either meaning. Even on the assumption that, in the context, the word "avoid" without the addition of the word "permanently" is capable of either meaning, which Boreham J . was inclined to concede, I find myself convinced by his final paragraph, which reads:

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"Finally, we can see no reason why, if the intention of Parliament was to provide, in effect, that an intention to delay or defer payment might suffice, Parliament should not have said so in explicit terms. This might have been achieved by the insertion of the word 'such' before payment in the phrase in question. It would have been achieved by a grammatical reconstruction of the material part of section 3(1) thus, 'dishonestly makes off without having paid and with intent to avoid payment of the amount due as required or expected.' To accede to the Crown's submission" would be to read the section as if it were constructed in that way. That we cannot do. Had it been intended to relate the intention to avoid 'payment' to 'payment as required or expected' it would have been easy to say so. The section does not say so. At the very least it contains an equivocation which should be resolved in favour of the appellant."
There is really no escape from this argument. There may well be something to be said for the creation of a criminal offence designed to protect, for instance, cab drivers and restaurant keepers against persons who dishonestly abscond without paying on the spot and without any need for the prosecution to exclude an intention to pay later, so long as the original act of "making off" could be described as dishonest. Unlike that in the present section, such an offence might very well as with the railway ticket offence, be triable summarily, and counsel for the appellant was able to call in aid the remarks of Gumming Bruce L.J. in Corbyn v. Saunders [1978] 1 W.L.R. 400, 403 which go a long way to support such a view. But, as the Court of Appeal remarked, that decision was under a different statute and a differently worded section which did not contain both the reference to "dishonestly" and the specific intention "to avoid payment" as two separate elements in the mens rea of the offence. In order to give the section now under consideration the effect required the section would have to be remodelled in the way suggested by Boreham J. in the passage quoted above, or the word "and" in the ultimate phrase would have to be read as if it meant "that is to say" so that the required intent would be equated with "dishonestly" in the early part of the subsection.Apart from a minor matter not relevant to the judgment there is nothing really to be added to the judgment delivered by Boreham J.The minor matter to which I have just referred was the disinclination of the Court of Appeal to consider the 13th Report of the Criminal Law Revision Committee, Section 13 of the Theft Act 1968 (1977) (Cmnd. 6733), which led to the passing of the Act of 1978. In accordance with present practice, this, for the purpose of defining the mischief of the Act but not to construe it, their Lordships in fact have done. The "mischief" is covered by paragraphs 18-21 of the report and it is significant that the report was accompanied by a draft Bill, section 3 of which is in terms identical with section 3 of the Act, save that the proposed penalty was three years instead of two. Though we did not use it as an aid to construction, for the purpose of defining the mischief to be dealt with by the section, I consider it to be relevant. The discussion had originated from the decision in Ray v. Sempers

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[1974] AC 370 and the committee defined the mischief in the following terms (paragraph 18):"there was general support for our suggestion that where the customer knows that he is expected to pay on the spot for goods supplied to him or services done for him it should be an offence for him to go away without having paid and intending never to pay." [Emphasis mine.]From this it is plain beyond doubt that the mischief aimed at by the authors of the report was precisely that which the Court of Appeal, construing the section without reference to the report, attributed to the section by the mere force of grammatical construction.In the result I agree with the judgment of the Court of Appeal and apart from my reference to the Criminal Law Revision Committee report can add nothing usefully to it. The appeal should be dismissed with the consequent order for taxation. The respondent is legally aided without contribution. For the public, as well as for the hotel, this has been a somewhat expensive exercise.

LORD SCARMAN

My Lords,I have had the advantage of reading in draft the speech delivered by my noble and learned friend, the Lord Chancellor. I agree with him. For the reasons he has given I also would dismiss the appeal.

LORD DIPLOCK

My Lords,I have had the advantage of reading in draft the speech of my noble and learned friend, the Lord Chancellor. I agree with it and for the reasons which he gives I would dismiss the appeal.

LORD BRIDGE OF HARWICH

My Lords,For the reasons given in the speech of my noble and learned friend, the Lord Chancellor, with which I agree, I would answer the certified question in the affirmative and dismiss the appeal.

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LORD BRIGHTMAN

My Lords,I, too, would dismiss the appeal.