Ray v Sempers (Director of Public Prosecutions v Ray, Sempers v Ray)

A restaurant customer who honestly intends to pay when ordering may nevertheless commit deception if, after deciding not to pay, he continues to conduct himself as an ordinary customer intending to pay before leaving. The representation conveyed by that conduct continues through the transaction and becomes knowingly false when the intention changes.

The deception must cause the pecuniary advantage. That requirement is satisfied where the customer’s conduct keeps the waiter off guard, creates the opportunity to leave without payment and thereby enables dishonest evasion of the debt. A mere dishonest failure to pay, without deceptive words or conduct, is insufficient.

The respondent entered a restaurant, ordered and ate a meal while honestly expecting a companion to lend him the money needed to pay. After eating, he and his companions decided not to pay. They remained seated for about ten minutes, maintaining the appearance of ordinary customers, and ran out when the waiter went to the kitchen.

The magistrates convicted the respondent under section 16(1) of the Theft Act 1968. The Divisional Court quashed the conviction because the evidence did not establish that the debt had been evaded by deception. The Director of Public Prosecutions appealed. The central issues were whether the respondent’s conduct after changing his intention constituted deception and whether that deception enabled him to obtain the pecuniary advantage of evading the debt.

1. Appeal allowed by a majority of three to two. Lord MacDermott, Lord Morris of Borth-y-Gest and Lord Pearson concluded that the magistrates were entitled to convict. The conviction and sentence were restored. Lord Reid and Lord Hodson dissented.

2. Per Lord MacDermott and Lord Morris, ordering a meal as an ordinary restaurant customer impliedly represented both an ability or intention to pay and that the intention would continue until payment in the ordinary course. The representation remained operative throughout the transaction. Once the respondent decided not to pay, his continued assumption of the role of an ordinary customer made the representation knowingly false.

3. Per Lord Pearson, the relevant representation was made continuously by conduct at every stage: entering, ordering, eating and remaining at the table. After the decision to leave without paying, the continued outward conduct falsely represented a present intention to pay. The majority therefore agreed, though with some difference of analysis, that the respondent’s conduct after changing his intention constituted deception within section 15(4) of the Theft Act 1968.

4. Per Lord MacDermott, Lord Morris and Lord Pearson, the deception caused the pecuniary advantage required by section 16(1). It induced the waiter to continue treating the respondent as an honest customer and to take no precaution against departure. The waiter’s absence in the kitchen then gave the respondent the opportunity to escape and evade his obligation to pay.

5. Per Lord MacDermott and Lord Morris, the respondent obtained a pecuniary advantage under section 16(2)(a) by evading the obligation to pay before leaving. In accordance with Director of Public Prosecutions v Turner, evasion need not be final or permanent.

6. Lord Reid and Lord Hodson considered that dishonest evasion alone was insufficient. In their view, the respondent did nothing positive after changing his mind that was intended or proved to deceive the waiter. They regarded the majority’s continuing-representation analysis as extending the criminal provision too far and would have dismissed the appeal.

1. House of Lords: By a majority of three to two, allowed the prosecutor’s appeal and restored the magistrates’ conviction and sentence: [1973] UKHL 3; [1974] AC 370.

2. Divisional Court: Answered the question in the case stated in the respondent’s favour and quashed the conviction, holding that the evidence did not establish evasion of the debt by deception.

3. Gainsborough Magistrates’ Court: Convicted the respondent under section 16(1) of the Theft Act 1968 and imposed a fine of £1.