Deception by conduct over meal not paid for Before Lord Reid. Lord MacDer- mott. Lord Morris of Borth-y-Gest, Lord Hodson and Lord Pearson [Speeches delivered July 251 A university student who went into a Chinese restaurant with friends intending to have a meal and pay for it but who changed his mind after eating the meal, re- mained seated until the waiter had gone out of the room, and then ran out without paying, was engaged in a continuous course of conduct constituting the offence of dishon- estly obtaining a pecuniary advan- tage hy deception. contrarv to sec- tion 16(1) of the Theft Act, 1968, and was properly convicted of the offence. Thle House of Lords bv a mnajority. Lord Reid and Lord Hod- son dissenting, so held in allowing an appeal by the Director of Public Prosecutions from the Queen's Bench Divisional Court (the Lord Chief Justice, Mr Justice Willis and Mr Justice Talbot) (The Tines. December 20, 1972 : 11973] 1 WLR 31), which had allowed an appeal by Roger Anthony Ray, of Kirton Lindsay, and quashed his convic- tion by Gaiusborough justices of an offence under section 16(l). He had been fined ?1. The facts as found by the iustices were tha.t one evening in Septem- ber, 1971, the accused and other young men entered the restaurant and four of them, including the accused, ordered a meal. WVhen he entered the accused had only l(lp on him but one of the others had agreed to lend him money to pay for a meal. He was served with a meal, which he ate without making any complaint to the staff. A discussion then took place hetween those who had had a meal, including the accused. and they decided not to pay and to run out of the restaurant. Some 10 minutes later, after being in the restaurant for nearly an hour and maintaining the demeanour of ordinary customers, they ran out while the waiter had gone to the kitchen. No pavment was offered and no money left for the meals. Section 16(l) provides that " A person who by any deception dis. honestly obtains for himself or another any pecuniarY advantage shall on conviction on indictment be liable to imprisonment.... Subsection (2) says that Trhe cases in which a pecuniary advantage within the mcaning of this section is to be regarded as obtained for a per'son are cases where-(a) any debt or charge for which he makes himself liable or is or mav become liable (including one not legallv enforceable) is reduced or in whole or in part evaded or deferred . . .: Mr Charles McCullough. QC, and Mr Igor Jndge for the prosecution Mr H. A. Skinner, QC, and Mr C. C. Coiston for the accused. LORD REID, for dismissing the appeal, said that when a new cus- tomer ordered a meal in a restau- rant he must be held to make an implied representation that he could and would pay for it before he left. The present accused must be held to have made such a repre- sentation. But when he made it it was not dishonest: he thought he would be able to borrow money from one of his companions. After the meal was consumed he changed his mind and decided to evade pav- ment. So he and his companions remained seated for a short time until the waiter left the room, then ran out. It was rightly admitted that if the waiter had not been in the room when he changed his mind and he had immediately run out he would not have committed an offence under section 16. Why did his sitting still for a short time in the wvaiter's presence make all the difference ? Evasion of his obligation to pay under the section was clearlv estab- lished by his running out "Without paYing. So was the required dis- honestv. The crucial question was whether there w as evasion " by any decep- tion ". Clearly there could he no deception tntil he changed his mind. His Lordship agreed wvith Mr Justice Buckley in In te Lon- don aeid Globe Finance Co (11903] 1 Ch 72Sl that " To deceive is to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false." So the accused, after he changed his mind, must have done some- thing intended to induce the waiter to believe that he still in- tended to pay before he left. Deception implied something post- the, It was true that a man in- tending to deceive could build tip a situation in which his silemc:e wsas as eloquent as an express state- ment. But what did the accused do to create such a situation ? lie merelv sat still. Deception was an essential in- gredient of the offence. Dishonest evasion of an obligation to pay, which was all his Lordship could see in the case, was not enough. He agreed with the Divisional Court that the accused's plan wvas totally lacking in the subtlety of deception, and to argue that his remaining in the room until the coast was clear amounted to a rep- resentation to the waiter is to in. troduce an artificialitv which should have no place in the Act " LORD MacDERMOTT, for allow- ing the appeal, said that bv the decisioln of the House in DPP v Tzrrner (The Times. July 26) a debt -as " evaded " even if the evasion was only for the time being: and a pecuniary advantage had not to be proved, in fact, as it was enough if the case was brought within section 16(2) (a) or (bl or (c). wvo questions remained. Did the facts justify a finding that the accused practised a deception ? If he did, was his evasion of the debt obtained by that deceptionl ? If there was deception it was bv con- duct only. His Lordship thotaght that for the purpose of evidence of deception the transaction must be regarded in ifts entirety, begiuning with the accused entering the restaurant and ordering his meal and ending with his running out without paying. It would be unrealistic to ti-eat the different stages in isolation. In his Lordship's view, the change of mind falsified the initial representa- tion that he intended to pay, and as he took no step to bring the change of mind to notice, he practised a deception just as real and dishonest as *vould have been the case if his intention all along had been to go out without paying. On the second question, the material before tile justices was enough to show that the evasion of the debt was obtained by that de- ception. Lord Morris delivered an opinion concurring in allowing the appeal. Lord Hodson delivered an opinion for dismissing the appeal- ing. LORD PEARSON said that the essential feature of the case was that there was a continuing repre- sentation to he implied from the conduct of the accused and his companions. All the actions including remaining at the table for about tC mlnutes could properly be regarded as one course of con- duct. Solicitors: DPP; Collver-Bris. tow & Co for Sergeant & Collins, Deception by conduct over meal not paid for Director of Public Prosecutions v Ray