Briefing note prepared by the Legal Services
on the Law on Obtaining by Deception
1. Sections 15 to 21 of the Theft Act 1968
and sections 1 and 2 of the Theft Act 1978 deal with the offence
of "obtaining by deception". There are 3 elements to
the offence: obtaining; deception; and dishonesty. Sections 15
and 16 are most relevant when considering allegations which involve
a person obtaining a sum of money that he/she is not entitled
to (rather than for example, obtaining a service or security that
he/she is not entitled to).
2. Section 15 provides for the obtaining
of property by deception. "Property" is defined as including
money and all other property. This section states that a person
who by any deception dishonestly obtains property belonging to
another with the intention of permanently depriving the other
of it is guilty of an offence and liable on conviction on indictment
to imprisonment for a term not exceeding 10 years or on summary
conviction to imprisonment for a term not exceeding 6 months or
a fine not exceeding the prescribed sum or both.
3. Section 16 provides for the obtaining
of a pecuniary advantage by deception. Paragraph (1) states that
a person who by any deception dishonestly obtains for himself
or another any pecuniary advantage shall on conviction on indictment
be liable to imprisonment for a term not exceeding 5 years. Paragraph
(2) states the two cases in which a pecuniary advantage within
the meaning of this section is to be regarded as obtained as being
where: he is allowed to borrow money by way of overdraft, or to
take out any policy of insurance or annuity contract, or obtains
an improvement of the terms on which he is allowed to do so; or
he is given the opportunity to earn remuneration or greater remuneration
in an office of employment or to win money by betting.
4. In both section 15 and section 16 the
obtaining must be by deception. The deception must be the effective
cause of obtaining the property or pecuniary advantage and must
operate on the mind of the person to whom it is directed otherwise
there will only be an attempt to commit an offence.
5. Deception is defined in section
15 of the Act (and this definition also applies to section 16)
as meaning "any deception (whether deliberate or reckless)
by words or conduct as to fact or law, including a deception as
to the present intentions of the person using the deception or
any other person".
6. The definition of deception in sections
15 and 16 contains the following elements:
7. Proof of falsity. It must be proved that
A made a false statement. If his statement was true he cannot
be guilty of the offence even though he believed it to be false
and was dishonest.
8. Deliberate or reckless. A deception is
deliberate if A knows his statement is false and will or
may be accepted as true by B. A deception is reckless if
A is aware that it may be false and will or may be accepted
by B as true; or is aware that it is ambiguous and may
be understood by B in the false sense. Carelessness and
negligence is not enough. If A believes his statement to
be true he is not reckless, however unreasonable his belief may
be; however, the more unreasonable A's alleged belief the
more likely it is that the court or jury will be satisfied that
the belief was not really held.
9. By words or conduct. Deception means
any deception by words or conduct. Where A knows that B is or
may be under a misapprehension, anything whatever done by A to
confirm B in his error is capable of amounting to a deception.
Case law suggests that if A were under a duty to inform
B of certain circumstances and did not then his omission in breach
of duty would constitute deception by conduct. Otherwise there
is no general obligation to take steps to correct a misapprehension
but as stated previously a person would be culpable if they did
anything to confirm the misapprehension.
10. The other element to the charge in sections
15 and 16 is dishonesty. In a section 15 or 16 case, the
jury must be told that before convicting it must be satisfied
that the particular deception was dishonest, and where the deception
was reckless rather than deliberate the summing up should normally
deal separately with dishonesty as an ingredient of that offence.
11. If the defendant pleads "honest belief"
in order to negate the charge of dishonesty the questions for
the court are:
I. Whether the act was dishonest according to
the standards of reasonable and honest people; and
II Whether the accused appreciated what he was
doing was by those standards dishonest.
3 February 2003