Sofroniou v R

For section 1 of the Theft Act 1978, banking and credit-card facilities may be services. This includes dishonestly obtaining an account or card and dishonestly operating it over a period. The operation of an account over a period may be charged as one continuing offence.

The statutory payment requirement needs an objectively mutual understanding that an identifiable payment will be made by or for the recipient to the provider. It cannot rest solely on a bank’s indirect commercial advantage. The necessary understanding may nevertheless be inferred where the defendant intended to create an overdraft or incur interest charges.

The appellant was convicted at Reading Crown Court of deception offences arising from the use of false identities to obtain and operate bank accounts and a store credit card. He appealed against convictions for obtaining, or attempting to obtain, services by deception on counts 1, 2, 4 and 5. He no longer challenged count 3.

The appeal raised whether bank-account and credit-card facilities were services within section 1 of the Theft Act 1978; whether dishonest operation of accounts could be a continuing offence; and whether there was evidence of the required understanding that the benefit would be paid for.

1. Appeal dismissed. May LJ, delivering the court’s judgment, held that the convictions on counts 1, 2, 4 and 5 were safe.

2. Following the addition of section 1(3) to the Theft Act 1978, there was no doubt that dishonestly inducing a bank or building society to provide banking services, or a bank or other organisation to issue a credit card, could amount to obtaining services by deception. Opening an account or obtaining a card gave access to the underlying banking or credit-card services. Dishonestly operating an account, or using a card, over a period could equally constitute obtaining those services.

3. The continuing dishonest operation of the accounts could be a single continuing offence. Counts 1 and 2 therefore did not charge more than one offence and were not duplicitous. The jury had to be unanimous as to the same part of the charged period if convicting in respect of only part of it.

4. Section 1(2) required more than a general commercial expectation that banks or card providers might profit. It required an objectively mutual understanding, assessed on the assumption of an honest inducement, that identifiable payment or payments had been or would be made by or for the recipient to the provider. Such an understanding could exist without express discussion of payment, but could not safely be inferred merely from opening a bank account or obtaining a credit card.

5. On the evidence, the jury could infer the required understanding. The appellant intended to use the accounts so that substantial overdrafts and interest charges would arise. The same inference was open in relation to the attempted Barclays account and the store card. The judge’s directions substantially conformed to that analysis.

6. The court expressly left open whether inducing the negotiation of a single cheque, or a single dishonest credit-card use, would by itself constitute obtaining services. It discouraged prosecution on that basis where a more suitable charge under the Theft Act 1968 was available.

• Court of Appeal (Criminal Division): The appeal against convictions on counts 1, 2, 4 and 5 was dismissed: [2003] EWCA Crim 3681.

• Crown Court at Reading: Before HH Judge Elly and a jury, the appellant was convicted on 13 March 2003 on nine counts. He received concurrent sentences of 21 months’ imprisonment. No citation for that decision was stated.