Blackmail and Making off Without Payment
Making Off without Payment
This offence occurs in situations such as where the defendant fills up his car with petrol and drives off without paying or has a meal in a restaurant and walks out without paying. It is a crime that commonly takes place at petrol stations and has been the focus of police targets. Despite this, offences still take place such as the one reported below.
- An offence where the D knows payment should be made but dishonestly decides not to pay at the time custom requires.
- Triable either way offence
- Max sentence is 2yrs
The definition of Making Off Without Payment (MOP)
The offence is defined in the Theft Act 1978, s3 as:
1 Subject to subsection (3) below, 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 due shall be guilty of an offence.
2 For purposes of this section ‘payment on the spot’ includes payment at the time of collecting goods on which work has been done or in respect of which service has been provided.
3 Subsection (1) above shall not apply 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.
This has the following elements:
1. Goods supplied or services done. (AR)
2. Makes off from the spot. (AR)
3. Fails to pay on the spot as required or expected. (AR)
4. Dishonesty. (MR)
5. Knows that payment on the spot is required or expected. (MR)
6. Intention to avoid payment permanently.(MR)
The first three of these are the actus reus and the last three form the mens rea of the offence.
Let us look at each element of the offence in turn:
Goods supplied or services done
The key point here is that the goods must be supplied. This requires the goods to be delivered to the defendant or the defendant being allowed to take the goods – as at a petrol filling station or from a self-service shop. If that is not the case, the offence is theft. Where the goods are taken from the self-service shop both theft and making off without payment are committed.
Where services are involved, the services must be done. This includes examples such as repairing a bicycle, supplying a meal or renting a car.
In the case of Allen (1985), it was the provision of a hotel room. This, therefore, includes the use of a facility such as a car park.
The offence is not, however, 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’.
This is s3(3) of the Act. This refers to illegal transactions such a supplying alcohol to the under-18s and also to transactions that are not legally enforceable. This refers to contract law where contracts with minors (under 18) for goods that are not ‘necessaries’ are unenforceable. If that was the case, there would be no offence of making off without payment, but there would be an offence of theft.
Makes off from the spot
The idea of making off is just one of departing. There is no need to be seen to be running away or surreptitiously leaving when no one is looking, even though that behaviour often occurs. The important thing is that the departure is dishonest. This can be seen from the case of Brooks and Brooks (1983), where it was said the words ‘dishonestly makes off’ are words easily understandable by any jury. In that case, the defendants had a meal in the upstairs room of a restaurant. The first defendant left the restaurant in a hurry. The second defendant also tried to leave but was caught by the manager. There was clearly making off in that case.
In McDavitt (1981), the defendant and three friends had a meal at a restaurant. The friends left, but the defendant stayed at the table. The bill was presented by a waiter and an argument started and the defendant refused to pay. He went to the door, to try and leave, but the exit was blocked and he was kept in the restaurant until the police arrived. It was decided that ‘making off’ refers to ‘a departure from the spot where payment is required or expected’. Where that spot is, is a matter for the jury to decide, depending on the circumstances. Here the defendant did not actually leave the spot, but merely attempted to do so. This is why shoplifters are usually arrested outside the shop as the offence of making off without payment (and theft) will definitely be complete then, rather than being an attempt to commit the crime.
It is therefore clear that ‘the spot’ covers a wide range of places, but usually means the area controlled by the person to whom payment should be made.
Fails to pay on the spot as required or expected
Normally this is at the end of a meal in a restaurant or before leaving a shop with goods. The key point is that the departure is made without paying as required or expected. This, therefore, depends on the normal relationship between the defendant and the victim.
However, if the defendant makes a false representation to get the victim to agree to payment later, this is no longer making off without payment but fraud by false representation under s2 of the Fraud Act 2006.
This can be seen from the case of Vincent (2001), where the defendant, in the autumn of 1998, stayed for a week at the Langton House Guest House in Windsor and shortly afterwards for a month at the Bricklayers’ Arms, Windsor. He left both hotels without paying his bill in full, the bill being almost £300 at Langton House and almost £1,000 at the Bricklayers’ Arms. In the course of his stay he had made a part-payment at the Bricklayers’ Arms. The expectation normally is that hotels will be paid before the customer leaves the premises. In this case, there were discussions between the defendant and the hotels as to when payment would be made. In circumstances where an agreement is made a considerable time before payment would normally be expected, that agreement is capable of defeating the expectation of payment on the spot and so no offence of making off without payment is committed.
This is the first part of the mens rea and relates to the making off. The test is the Ghosh test, as previously discussed. Thus, a defendant who honestly believed he had been given credit for the goods supplied or service done would not be guilty.
Knows that payment on the spot is required or expected
We have seen in the previous element that dishonesty relates to the making off. The idea that credit is not available is merely something that the defendant must know and, as in s2 of the Fraud Act 2006, is usually self-evident. Dishonesty is not part of the method of payment element. If payment is no longer expected (however that may have been achieved) the suspect is not dishonestly making off when he leaves as we have seen in the case of Vincent (2001).
It should be noted that in Vincent (2001), the bill was a reasonably substantial bill for hotels. It would be much more difficult to show an agreement had been reached to defer payment of a taxi fare, petrol at a filling station or for a meal in a restaurant. It could happen as, perfectly innocently, people get caught out by not having enough money with them, or realising they have lost their wallet. They then have to make an agreement to pay the next day.
Intention to avoid payment permanently
Here the intent must be never to pay the sum involved. This means that an honest belief that credit is being given will mean the offence is not beingcommitted. This has already been seen in the case of Allen (1985).
The term blackmail referred, originally, to a payment made by English people living along the border of Scotland to Scottish chieftains in exchange for protection from thieves and marauders. Today, blackmail involves a threat made so that a person does an act against his will, or in order to obtain the person’s money or property. It is a threat from the blackmailer to do something for not agreeing to the demand. The threat doesn’t have to be something illegal and doesn’t even have to be true.
Look at a case on Blackmail int he Daily Mail. The video is below:
- Involves a threat made so that a person does an act against his will, or in order to obtain the person’s money or property.
- Indictable only offence
- Max sentence is 14yrs
The definition of blackmail
Blackmail is defined in s21 of the Theft Act 1968 as:
1 A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief –
a that he has reasonable grounds for making the demand; and
b that the use of the menaces is a proper means of reinforcing the demand.
2 The nature of the act or omission demanded is immaterial, and it is also immaterial whether the menaces relate to action to be taken by the person making the demand.
The actus reus of blackmail, therefore, has two aspects:
1 Unwarranted demand.
The mens rea of blackmail has three aspects:
1 An intention to make a demand with menaces.
2 Doing so with a view to gain for himself or another or with intent to cause loss to another.
3 Either –
a not believing he has reasonable grounds for making the demand,
b not believing that the use of the menaces is a proper means of reinforcing the demand.
There are, therefore, a number of points that need to be considered for the offence of blackmail.
1. What amounts to an unwarranted demand?
2. What amounts to ‘menaces’?
3. The defendant’s view to gain or loss.
4. The defendant’s belief as to reasonable grounds for making the demands.
5. The defendant’s belief that use of the menaces is a proper means of reinforcing the demand.
What amounts to an unwarranted demand?
The demand can be made either expressly or impliedly. Usually the demand is made expressly, such as an oral or written demand for a sum of money for not exposing some possible scandal. It also appears that the demand can be made impliedly, i.e. from evidence of the defendant’s actions or words.
In Collister and Warhurst (1955), the defendants were two policemen. They indicated to the victim that he would be reported for a sexual offence, but that they would hold back the report until they met him the next day. The next day the defendant policemen asked if he had anything for them, saying, ‘Remember, sir, I am now making an appeal to your benevolence.’ The victim handed over £5. Whether this amounted to a demand was a matter for the jury. The test is whether the evidence shows that, even though there was no express demand or threat, the attitude of the accused and the circumstances of the case were such that an ordinary reasonable man (jury) would understand that a demand for money was being made.
The demand is made when the defendant has done all he can to communicate the demand. In the case of Treacy v DPP (1971), this was when a letter was posted. This is presumably the same when an e-mail is sent (that does not bounce) or a text message is sent, assuming there is no evidence of a failure to deliver the message.
The demand made must be unwarranted. This means that it must be for something that the defendant is not legally entitled. Thus, a demand is not unwarranted if it is for money legally owing to the defendant. It would also not be unwarranted if the claimed debt turned out not to be legally enforceable. This is because the defendant would believe he had reasonable grounds for making the demand.
What amounts to ‘menaces’?
The word ‘menaces’ has always had a broad interpretation. In Thorne v Motor Trade Association (1937), Lord Wright said:
‘I think the word menace is to be liberally construed, and not as limited to threats of violence, but as including threats of any action detrimental to or unpleasant to the person addressed. It may also include a warning that, in certain events, such action is intended.’
It is also the case that the effect of the demand must be that the reasonable person would be influenced or fearful so that the demand was likely to be met. However, if the person to whom the threat is made is known by the defendant to be particularly timid, then threats which do not affect the reasonable person can still be taken as menaces. This can be seen from the case of Garwood (1987), where the defendant was unusually timid and the defendant knew that fact.
An example of threats that do not amount to menaces can be seen in the case of Harry (1974), where the defendant was a member of a university rag week committee who had written to shopkeepers on the route of a rag procession that they could be excluded from ‘inconvenience’ by supporting the rag week charities. This was seen to be essentially trivial and, at the time, was probably standard practice during rag weeks.
The defendant’s view to gain or loss
In s34(2) of the Theft Act 1968 there are definitions: For purposes of this Act –
a ‘gain’ and ‘loss’ are to be construed as extending only to gain or loss in money or other property, but as extending to any such gain or loss whether temporary or permanent; and –
i ‘gain’ includes a gain by keeping what one has, as well as a gain by getting what one has not; and
ii ‘loss’ includes a loss by not getting what one might get, as well as a loss by parting with what one has.
This means that the intended result of the blackmail involves some money or property rather than something of no monetary value such as a kiss. Things of economic value, such as a morphine injection to get pain relief from a doctor, are sufficient for blackmail. This was seen in the case of Bevans (1988), in this case it was a painkilling injection.
The defendant’s belief as to reasonable grounds for making the demands, and that the use of the menaces is a proper means of reinforcing the demand can be a defence.
This is because the Criminal Law revision Committee felt that a jury would be able to distinguish between a blackmailer who clearly knows that they have no reasonable grounds for making the demands and the person who has a genuine claim to make demands.
The key thing about these defences to a charge of blackmail is that the defendant believed there were reasonable grounds for making the demand and believing that the use of menaces is a proper means of reinforcing his demand.
The belief must be genuinely held and can be a moral rather than a legal belief, but a belief that would generally be viewed as immoral is no defence, eg maiming and raping. This can be seen from the case of Harvey (1981), where a drug deal had left the defendant having paid £20,000 for something worthless. He then kidnapped the seller’s wife and child and threatened to maim and rape them if the money was not returned. He was convicted of blackmail even though he believed he was justified in making the threats.