Making off without payment

Making off without payment is an offence under s.3 Theft Act 1978. The offence of making off without payment was introduced in response to a gap in the law under the Theft Act of 1968 whereby if a person forms a dishonest intent not to pay for goods or services after receiving them they could not be convicted under the deception offences (see Edwards v Ddin (1976) 63 Cr App R 218 Case summary. The offence of making off covers such activities as leaving a restaurant or hotel without paying, not paying a taxi fare and filling up with petrol and driving off. Making off without payment is a triable either way offence. Under s.4 Theft Act 1978, the maximum sentence for making off if tried on indictment is 2 years and 6 months if tried summarily.

S.3 Theft Act 1978 provides: 

…A person who, knowing that payment on the spot for any goods 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 shall be guilty of an offence.

Actus reus of making off without payment

The actus reus of making off without payment consists of:

• Makes off

• Without payment

• Payment required or expected on the spot

• Goods or services done

Makes off

Makes off simply means depart or leave:

R v Brooks and Brooks (1983) 76 Cr App R 66   Case summary

If the defendant does not actually leave the spot where payment was due then no offence is committed. If the person is caught before leaving the spot, the correct charge would be attempt to make off:

R v McDavitt [1981] Crim LR 843   Case summary 

Without payment

This is a question of fact. If the defendant pays with forged money then no payment has been made. If they pay with a credit card without authority to use the card, it depends upon whether the card company honours the payment (the defendant may be liable for fraud). If they pay by cheque backed by a guarantee card, the bank will honour the cheque even if the defendant has no money in the account to pay for it. 

Payment required or expected on the spot

If the service or goods are offered for free, no offence of making off without payment can be established, no matter how dishonest the defendant might have been in procuring the goods or services for nothing. (There may well be an offence under the Fraud Act 2006). Also, if the goods or services are offered on the understanding that they will be paid for, but the defendant enters an agreement to defer payment, no payment is expected or required on the spot and therefore no liability for making off can arise:

R v Vincent [2001] EWCA Crim 295  Case summary  

There is no particular geographical location for 'on the spot' for the offence of making off without payment, there is simply a requirement that liability to make payment has arisen:

R v Aziz [1993] Crim LR 708  Case summary 

Moberly v Alsop (1991) The Times 13 December  Case summary

If liability to make payment has not yet arisen, then no payment is required or expected on the spot:

Troughton v MPC [1987] Crim LR 138  Case summary

Goods or services done

S.3 (3) Theft Act 1978 provides that no offence of making off without payment is committed where the supply of the goods or the doing of the service is contrary to law, or where the service done is such that payment is not legally enforceable. So for example the bank robber that does not pay his get away driver would not be committing an offence as the service is contrary to law. The punter that does not pay for services received by a prostitute has not committed an offence of making off as the payment is not legally enforceable.

Mens rea of making off without payment

The mens rea of making off without payment consists of:

• Knowledge that payment is required or expected on the spot

• Dishonesty

• Intention to avoid payment

Knowledge that payment is required or expected on the spot

If the defendant believes the goods or services are provided free, there can be no liability for making off without payment. Similarly, if they believe that the goods or services are offered on credit then no liability can arise.

Dishonesty

Dishonesty should be given its ordinary meaning. In the majority of cases, no elaboration of dishonesty is required:

R v Brooks and Brooks (1983) 76 Cr App R 66   Case summary

Where the defendant is claiming his actions were not dishonest, an application of the Ivey test which replaced the Ghosh test may be required:

R v Ghosh [1982] 3 WLR 110 Case summary 

Ivey v Gentings Casino [2017] 3 WLR 1212      Case summary

Intention to avoid payment

There must be an intent to permanently avoid payment for liability to arise for making off without payment:

R v Allen [1985] AC 1029 Case summary

The offence of making off without payment therefore requires the defendant to dishonestly make off without paying for goods received or services done, knowing that payment was expected or required on the spot with the intention to permanently avoid payment.

Making off without payment under s.3 Theft Act 1978