Saturday, 5 October 2013

Petrol - avoiding payment - theft?

The Telegraph has published an item about individuals who fill up their vehicles at self-service petrol stations and then claim that they do not have the means to pay with them - Telegraph 4th October - Legal loophole closed to prosecute persistent fuel thieves.  They are then asked to sign a document acknowledging that they owe the money and, of course, they do do not return to pay.  There appears to have been some reluctance to prosecute such individuals for theft.  From the legal perspective, it is necessary to consider the definition of theft.

The basic law is to be found in the Theft Acts 1968, 1978 and the Theft (Amendment) Act 1996.  These Acts were based on recommendations of the Criminal Law Revision Committee's 8th report (1966)  and 13th Report (1977).  The 1996 Act was enacted to address the House of Lords decision in R v Preddy and others [1996] UKHL 13 but this need not concern us further here.

The Acts are the authoritative sources for the definitions of theft and related offences.  They
have been subjected to a mass of (sometimes conflicting) judicial interpretation and it is important to note that offences relating to appropriation of property can be defined only in relation to the underlying civil law of property.  Thus, section 5 of the Theft Act 1968 states when property is to be treated as belonging to another but, for example, to determine where a person has a 'proprietary right or interest' is a question of civil property law.

The basic definition of theft is in section 1 of the Theft Act 1968: - A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.

Each word of that definition has to be considered carefully and sections 2 to 6 have effect as regards the interpretation and operation of section 1.  The filling up of a fuel tank will be an appropriation of property (the fuel) and, at that point, the fuel belongs to another (the garage proprietor).  The difficulty relates to 'dishonesty.'  The individual who genuinely thinks he has his bank card with him but, having filled up, finds that he had left it at home might not be considered to have acted dishonestly at the time of filling up the tank.  Of course, the dishonest individual will claim that he genuinely believed he had with him the means of payment.  It is therefore a question of proving 'dishonesty' and it is for the prosecution to establish that element of the offence to the criminal standard of proof (beyond a reasonable doubt).

Theft Act 1968 section 2 sets out three instances where appropriation of property belonging to another is not to be regarded as dishonest - e.g. where the individual believes that he would have consent to the appropriation.  The instances are particular examples where Parliament considered it necessary to make a clearer statement and, therefore, section 2 is not a comprehensive definition of dishonesty.   In the usual types of fuel-taking case, the instances in section 2 do not assist us and it is necessary to turn to the case law.

The concept of dishonesty is difficult to define.  It measures the conduct of the defendant against values implicit in society's notion of the sanctity of property.  The test cannot be an entirely subjective one since that would enable each individual to set his own standards of right and wrong.  The judges have developed a two-stage test set out by the Court of Appeal in R v Ghosh [1982] 2 All ER 689.  The court's judgment was delivered by Lord Lane CJ who stated:

'In determining whether the prosecution has proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails.
If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest. In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it. It will be obvious that the defendant himself knew that he was acting dishonestly. It is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did.'

The first part of this test requires the fact-finders (jury or magistrates) to have a clear view about what was actually done.  Without such clarity, the test cannot be sensibly applied.  The typical fuel taker has entered the garage, filled up his car, gone to the payment point and then said that he has just realised that he did not have the means to pay with him.  Such facts would be proved by evidence in the usual ways - e.g. CCTV showing the car at the garage; evidence as to what the fuel taker said etc.  Is such conduct dishonest by the ordinary standards of reasonable and honest people?  The conduct itself is equivocal since it could the actions of the honest as well as the dishonest.  Therefore, the question cannot be answered properly unless the state of mind of the individual at the time is considered.  If he knew that he did not have the means to pay then it would be very likely that fact-finders would conclude that the conduct was dishonest by ordinary standards.

For the purposes of the first part of the test, just what are the ordinary standards of reasonable and honest people?  Different sets of fact-finders (jurors or magistrates) might well reach different conclusions depending whether they take a lenient or strict view.  For example, some would probably argue that reasonable and honest people would who go to petrol stations would check that they have the means to pay before filling up the tank.  

If the fact-finders find against the defendant on Limb 1, then they must consider Limb 2 of the Ghosh test which considers what the defendant himself must have realised.  Did he realise that his conduct would be seen as dishonest by ordinary standards.  In most fuel-taking cases, the answer would be that he did.  . 

The application of the Ghosh test is therefore not necessarily straightforward.  The test is discussed in the many textbooks on criminal law.  It has been criticised by academic writers - (see References below).  The Law Commission discussed it extensively in Part V of their 2002 report on fraud.    The Commission noted:

'Dishonesty is a defining element of all the major Theft Act crimes ..  It is, however, an unusual element, because it necessitates a moral as well as a factual enquiry.

Traditionally, crimes consist of objectively defined conduct or events (external elements) and mental states (fault elements), subject to circumstances of justification or excuse (such as self-defence or duress),  In general the fact-finder's task is (a) to determine what happened, (b) to determine what the defendant's state of mind was, and (c) to apply those facts to the definition of the crime in question, to see whether each of the external elements and fault elements have been made out.  It is unusual for the fact-finders to be asked to decide whether they think the defendant's conduct or state of mind was sufficiently blameworthy for it to constitute a crime.'

In Dishonesty and the Jury: A case study in the moral content of law Richard Tur (Oxford - profile) argued:

'I take the concept of dishonesty as an example of standard-bearing concepts generally.....  In my view such concepts are not and cannot be exhaustively and exclusively defined by the law.  Rather, they reflect extra legal standards of social conduct. The existence of such concepts in the law suggests a general thesis, namely that any functioning legal system necessarily incorporates and reflects values immanent in the community which it serves. Such a thesis supports these propositions: law is simply too important a matter to be left solely to lawyers; not all law is 'lawyers law' and one should guard against an academic tendency to convert questions of practical moral philosophy into technical questions exclusively determined by the law; .....' 

The Crown Prosecution Service point out that proving the section 1 offence is likely to be problematical but it might be possible to make out a case for the use of theft where there are repeated incidents or where false details were given by the defendant to the garage.  In such circumstances it could be inferred that the individual knew exactly what they were doing and had formed the necessary dishonest intent at the point that they drove on to the petrol station forecourt.  

There is a helpful discussion of the Ghosh test at Law Teacher.  It may be that the Ghosh test eventually proves to be too vague a way to define criminal liability.  In Hashman and Harrup v UK, the European Court of Human Rights required law to be sufficiently precise so that the individual could know whether his conduct would infringe the law.  Any appellate court minded to adopt that view would then face the difficulty of putting forward an alternative way of defining dishonesty which remains a key ingredient in criminal liability for many Theft Act offences.

Theft Act 1978 section 3:

In some situations the 1978 Act section 3 offence will apply but it cannot apply where the individual has not 'made off' without payment.

Civil proceedings?

Cost of debt recovery via proceedings in the County Court will often exceed the amount owed for the fuel.  However, fuel retailers have a scheme operated by the British Oil Security Syndicate (BOSS) and this indicates that debts can be sold on to debt collection agencies.


As well as the links embedded in the above, the serious student / practitioner may wish to see:

Elliott - Dishonesty in theft: A Dispensable concept [1982] Crim MLR 395

Campbell - The Test of Dishonesty in R v Ghosh (1984) 43 CLJ 349

Griew - Dishonesty, the objection to Feely and Ghosh [1985] Crim LR 341

Halpin - The test for dishonesty [1996] Crim LR 283

Steel - The meaning of dishonesty in theft (2009) 38 Common Law World Review 103

New Zealand's approach to dishonesty


  1. A little story.... In the late 70s I was working shifts for the railways, sometimes these shifts were of 12 hour duration. Night turns every 3 weeks I used a small motorbike and one day came back from nights and filled up the tank ready for the evening. The following day I went to work and then visited the garage again to buy some food. This garage was about 200 yards from my home and I was a regular customer. As I went in to the garage shop, my memory suddenly clicked and I said to the owner, "I didn't pay yesterday, did I ?". He said "no you didn't" and just added on the petrol money to my food bill. So here, a personal relationship - regular customer known to the owner ensured I didn't end up in court. I do wonder how others who suffer from memory and other mind problems get on nowadays.

    1. a good example of there being no dishonesty.

  2. I would argue that this 'offence' happens in two ways. First, a driver fills up his car and then drives off. In this case the first part of the test is almost certainly passed, and the second part of the test comes into play: 'I was preoccupied m'lud because the wife had just run away with him next door'. Then questions can be asked to ascertain intent - for example' did the driver return an hour later and offer to pay? In the second case, the driver fills up but then finds he has not the necessary means to pay. Does he deprive the garage owner of his property permanently? The driver offers to make arrangements to pay (if the offer is accepted presumably the matter becomes a question of civil dept enforcement), the garage owner can syphon fuel from the car tank, the driver can leave his car and return later with the payment. If such matters are discussed as possibilities, even if the first is eventually accepted, then it would be difficult to say that permanent deprivation was intended.

    1. Your first example might constitute the 'making off' offence in the 1978 Act. I would argue that permanent deprivation occurs when the tank is filled. True that fuel (or most of it) could be siphoned back but the trade does not usually engage in that practice for safety reasons. I feel that magistrates or a jury would have little difficulty finding an intent to permanently deprive in such circumstances.

  3. I am not keen on prosecutions of drive-away petrol thieves. The petrol retailers make it just too easy. At the petrol station I use you have a choice: Pay at the pump or pay at the kiosk. If you choose the former you scan in your credit card (and loyalty card!) and the pump opens to £99.99. If you choose the latter you are of course on trust - but most customers not only go in and pay, they buy something else too, and that is why the option is still there.

    If you had to pay first in the kiosk customers would get used to going to the till with their other purchases and at the same time paying for pump number such-and-such to be opened.

    That petrol station is at a supermarket. They don't let you fill your trolley with other goods, scan them, and let them take you to the car before you pay - and if they did they would get scant sympathy if drivers then drove off. Why is petrol different?

    Fraser: I remember when I went to a cafe I often used and they told me I had not paid the a day or two earlier - I paid up and of course they knew I would. I expect it still happens, but not at supermarkets!

    1. Thank you for this. I agree that retailers could be making things too easy for the dishonest customer.

  4. Driving off from a petrol station is not covered by the statutory offence of theft, because title to the fuel passes to the driver as he pumps it - so he isn't depriving the owner of the fuel, it's his fuel.

    What he is depriving the retailer of is payment, and the offence is making off without payment, which was originally created in 1978 specifically to cover the theft of fuel in this way, which previously was only subject to civil recovery.

    About a year ago I did this twice within a couple of weeks. In each case I approached the cashier, apologised profusely, and returned with payment within the hour. They have a form for it.

    1. The Theft Acts have deliberately avoided the difficult civil law questions of title to property. The law of theft is therefore based on possession or control - see Theft Act 1968 section 5. At the time of the appropriation, the fuel is in the possession and control of the garage.

  5. @Anonymous 15:33, Offering to make arrangements to pay does not automatically make it a matter for civil recovery. The question is whether the driver intended to avoid payment. If the offer was a pretence, it will still be the offence of "making off without payment" from the 1978 theft act.

    1. If the offer to pay is made and accepted: ie the form is signed by the driver and accepted by the owner, then I struggle to see how that could be construed as making off. The driver may not later pay (for a variety of reasons not all malign), but the owner's only recourse is civil recovery. If not, what am I missing?

    2. @ Anonymous 16.11 - yes, the debtor driver has acknowledged the debt and the garage has accepted that. The debt is recoverable in civil proceedings but, sadly, the costs of recovery often exceed the debt. Owners of debts (legally a 'chose in action') can sell them to debt collection agencies.

    3. @anonymous, 16:11, @ObiterJ. Making off just means leaving. If you don't pay, you leave, and dishonestly never intend to pay, then the offence is committed.

      Even if that's wrong: The question is whether he was being fraudulent in offering to pay. If he is, then he is guilty of either s3 making off without payment, or s2 Evasion of Liability (see section 2.1.b which covers this scenario exactly). If the offer to pay is a pretence, then there is recourse in the criminal law.

      Of course there is no need to involve the police if they think such matters beneath them. A private prosecution can be brought.

  6. Ben: The problem in your hypothetical is one of proof. The dishonesty and intent to permanently avoid payment would have to align with the making off. A defendant is likely to claim that he/she genuinely intended at the petrol station to stick to the promise, but later changed his/her mind, forgot, or was unable to stick to the agreement. It will often be difficult to prove the defendant's actual intentions.

  7. Much obliged to you for this. I concur that retailers could be making things too simple for the unscrupulous client.
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