R v Allen (Christopher)

The offence of making off without payment under section 3(1) of the Theft Act 1978 requires an intention permanently to avoid payment of the amount due. An intention merely to delay or defer payment does not suffice.

The required intent is distinct from knowledge that payment on the spot is required or expected and from dishonesty in making off without paying. The prosecution must prove each element. The statutory language carries this meaning on its proper construction. In any event, ambiguity in a penal provision must be resolved in favour of the defendant and against the Crown.

The respondent left a hotel without paying a bill of £1,286.94. He maintained that he honestly expected to pay it later from the proceeds of business ventures. A jury convicted him of making off without payment under section 3 of the Theft Act 1978 after being directed that the required intent need apply only when he left and need not be permanent.

The Court of Appeal (Criminal Division), reported at [1985] 1 WLR 50, allowed his appeal and quashed the conviction. It certified whether section 3(1) required an intention permanently to default on payment. The Crown appealed to the House of Lords.

1. Appeal dismissed unanimously. Lord Hailsham of St Marylebone LC delivered the leading speech. Lord Scarman, Lord Diplock and Lord Bridge of Harwich expressly agreed with his reasons, while Lord Brightman also favoured dismissal. The Court of Appeal's order was affirmed and the certified question was answered in the affirmative.

2. Per Lord Hailsham LC, section 3(1) of the Theft Act 1978 requires proof that the defendant made off without paying on the spot. The prosecution must also prove knowledge that payment on the spot was required or expected, dishonesty, and an intent to avoid payment of the amount due. The final element adds something beyond the preceding elements.

3. An intention merely to delay or defer payment cannot satisfy the final element. A person who knowingly and dishonestly makes off without paying on the spot necessarily intends at least to delay payment. Construing the additional words as requiring no more would deprive them of independent effect. The required intention is therefore an intention to evade payment altogether.

4. The statutory language was capable only of that construction. Alternatively, if “avoid” was capable of including temporary avoidance, the resulting ambiguity in a penal provision had to be resolved in favour of the defendant and against the Crown. Parliament could readily have linked the intent expressly to payment at the required time, but section 3(1) did not do so. The trial judge's direction that no permanent intention was required was therefore erroneous.

5. The remarks in Corbyn v Saunders [1978] 1 WLR 400 supported the possible creation of a different offence covering dishonest departure without immediate payment regardless of an intention to pay later. That decision concerned differently worded legislation which did not make dishonesty and an intent to avoid payment separate elements.

6. Lord Hailsham LC used the Criminal Law Revision Committee's report only to identify the statutory mischief, not as an aid to construction. It confirmed that the contemplated mischief involved leaving without payment while intending never to pay. The respondent's conviction remained quashed, and the parties' appeal costs were ordered to be paid from central funds.

1. House of Lords: The Crown's appeal was dismissed unanimously. The order of the Court of Appeal was affirmed and the certified question was answered in the affirmative.

2. Court of Appeal (Criminal Division): On 23 July 1984, Watkins LJ, Boreham and Stuart-Smith JJ allowed the respondent's appeal and quashed his conviction. The decision is reported at [1985] 1 WLR 50.

3. Southwark Crown Court: The respondent was convicted of making off without payment under section 3 of the Theft Act 1978 after the jury was directed that an intention permanently to avoid payment was unnecessary.