Select Committee on Standards and Privileges Third Report


Annex C

Briefing note prepared by the Legal Services Office

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





 
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Prepared 13 February 2003