OBTAINING PROPERTY BY DECEPTION: S.15 Theft Act, 1968
(1) A person who by any deception dishonestly obtains property belonging to another, with intent to permanently depriving the other of it shall on conviction on indictment be liable to imprisonment for a term not exceeding ten years.
(2) ...a person is to be treated as obtaining property if he obtains ownership, possession or control of it and 'obtain' includes obtaining for another or enabling another to obtain or to retain.
(3) the s6 definition of intention to permanently deprive applies to the s15 offence.
By any deception
The deception must be the operative cause of the obtaining of property, and this is a question of fact for the jury to decide, requiring proof that the victim would not have acted in the same way had they known the truth.
The deception must precede the obtaining of property.
The wording of the statute is highly significant because it is by a deception dishonestly and not by a dishonest deception which requires the dishonesty to be proved separately from the deception.
In most cases, the defendant will obtain ownership, possession, and control of the property, but the obtaining of any one of these will be sufficient.
s34(1) TA 1968 confirms that the definition given in s4(1) applies, so property is.:
money and all property, real or personal, including things in action and other intangible property.
But the limitations on what can be stolen in ss4(2)-4(4) do not apply to s15. It is therefore possible to obtain land by a deception.
Belonging to another
Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest.
Intention to permanently deprive
The extended meaning given to "intention permanently to deprive" the other of the property given in s6 Theft Act applies to s15.
As in a case under sec. 15 of TA68, where it is necessary for the Crown to prove an intention of the defendant to permanently deprive the owner of property obtained by his deception, is it necessary in a case under sec. 15A of TA68 for the Crown to prove the defendant intended to permanently deprive the owner of the money transferred by his deception? I ask the question because it appears to me that sec 15 has an overarching effect on all subsections including sec 15A?
The Theft (Amendment) Act, 1996 has added s15A which provides that it is an offence to:
dishonestly obtain a money transfer for oneself or another by deception.
This applies no matter what the means of transfer and credit/debit state of the two accounts, and was specifically enacted to remove the problem caused by R v Preddy (1996) 2 Cr. App. R. 524. This case held that there no s15 offense was committed when the defendant caused transfers between the victim's and his own bank account by deception. This arises because of the legal relationship between a bank and its customer. The account is a chose in action, i.e. a debt owed by the bank to the customer or vice-versa. Thus, when the "transfer" took place, one debt owed by the bank to its client was reduced, and a second debt in the same amount was created, Thus, nothing formerly belonging to the victim was obtained by the defendant.
Obtaining a pecuniary advantage
s16 Theft Act, 1968 states that:
(1) 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 five years.
(2) The cases in which a pecuniary advantage within the meaning of this section is to be regarded as obtained for a person are cases where:-
(a) Repealed by s5(5) Theft Act 1978;
(b) he is allowed to borrow 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
(c) he is given the opportunity to earn remuneration in an office or employment, or to win money by betting
(3) For the purposes of this section "deception" has the same meaning as in section 15 of this Act.
The elements of the actus reus are similar to the offence of obtaining property by deception: there must be a deception: this has the same meaning as for s.15 (according to s.16(3) TA 1968) there must be causation as above there must be the obtaining of a pecuniary advantage. The only definition of "pecuniary advantage" is offered in s16(2): (a) (repealed by TA 1978); (b) a person is allowed to borrow by way of overdraft, or to take out a policy of insurance or annuity contract, or obtains an improvement of the terms on which he is allowed to do so, or (c) a person is given the opportunity to earn remuneration or greater remuneration in an office or employment, or to win money by betting. Section 16(2)(b) covers the situation in MPC v Charles above where writing the cheque backed by a card obtains an unauthorised overdraft even though the deception operates on the mind of the person accepting the cheque and not on the mind of a bank officer. In most cases, the granting of credit may be machine-based with reference to a bank officer only being made when larger sums of money are involved. Where the pecuniary advantage is the obtaining of an overdraft facility at a bank, it is only necessary to show that the facility was granted, not that the defendant actually used the facility.
Section 16(2)(c) clearly covers those people who claim to have qualifications which are in fact false, and because of these qualifications they are employed. Further, according to R v Callender (1992) CLR 591 where a self-employed accountant made deceptions, the section was held to apply equally to employment as an independent contractor and employment as a servant.
There are two elements to the mens rea of this offence:
* there must be a deliberate or reckless deception (see above)
* the defendant must be dishonest (see above).
But there is no need to prove an intention to permanently deprive.