Section 16(2)(a) is one of the most influential milestone sections of criminal law in England and Wales, yet technically it no longer exists. Why, then, is a repealed section of an act worthy of much study?

Before 1968

One of the reasons for this is that the 1968 Theft Act, for the first time in Britain, was an attempt to make criminal law legislation accessible to non-lawyers. Before 1968, theft and other, similar, offences were governed by a mass of conflicting legislation and common law¹ and was over-complex. Before 1968, if 'ownership' passed by means of deception, the offence was 'obtaining by false pretences'. If 'possession' was passed, the offence was 'larcency by a trick'. Other offences existed, including 'larcency by a servant', 'fraudulent conversion' and 'embezzlement'. It had reached the point where it was harder to discover which crime the accused may have committed rather than whether or not the accused was guilty.

The 1968 Theft Act, as well as the 1971 Criminal Damage Act, did much to overcome this problem. All previous theft legislation and common law were overruled, resulting in the creation of the first codified definition of law in England and Wales.

So far, only section 16(2)(a) of the 1968 Theft Act has been repealed. In order to understand why, we must first understand this section fully. We must first look at section 16 of the 1968 Theft Act as a whole.

Section 16 of the 1968 Theft Act

16 Obtaining a Pecuniary Advantage by Deception.

Pecuniary Advantages

So, what is a 'pecuniary advantage'? Without knowing that, the Act cannot be understood.

Essentially, a pecuniary advantage is more money. If you have gained a pecuniary advantage, you are richer than you were before. It also refers to situations where you should have paid for something, but didn't; although you have not gained physical money, your bank balance remains better off than it should be.

So, to understand the specific nature of section 16(2)(a), we need to look at the definition in section 16(1) again:

(1) A person who by any deception dishonestly obtains for himself or another any pecuniary advantage shall on conviction on indictment, be liable to a imprisonment for a term not exceeding five years.

This section has four sub-sections. The first is:

• By — This means that you must prove a causal nexus, that is, was the crime a direct result of the deception — what was the cause?. Was the deception that which caused the gain? For example, if you lie to get a job, and get paid wages, are the wages for the deception or the job you have done? If it is for the job done, then section 16 does not apply.

• Deception — Section 16(3) states that deception has the same meaning as in section 15 of the 1968 Theft Act — the section relating to 'obtaining property by deception'. This is section 15:

  Section 15(4) 1968 Theft Act — (4) For the purposes of this section 'deception' means any deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including a deception as the present intentions of the person using the deception or any other person.

  In other words, although you must intend to steal something, you can recklessly (without directly meaning to, but realising it is a possibility) obtain a pecuniary advantage. Another point is that not only can you deceive through words, it is also possible to deceive by conduct, or by wearing clothes. For example, by dressing up as a pensioner in order to qualify for an OAP discount etc, you are 'deceiving'.

• Dishonestly — It must be dishonest. If you made a mistake, or did it accidentally, it is unlikely you will be charged.

• Obtains — This is a specified test that means that you must obtain something, more specific than the test of appropriation used elsewhere in the 1968 Theft Act.

Section 16(2)(a)

We have explained section 16 of the Act. Now it's time to see section 16(2)(a) itself broken down into four parts:

• Any debt or charge

• for which he makes himself liable or is or may become liable

• (including one not legally enforceable)

• is reduced in whole or in part, evaded or deferred.

Essentially, section 16(2)(a) means:

• Any debt or payment, (in essence any pecuniary advantage)

• that you now owe,

• (this includes ones not legally enforceable, for example prostitution, gambling, etc)

• that through deception, have avoided, have not paid, or, been able to pay a reduced rate

... counts as obtaining a pecuniary advantage, the sentence of which is imprisonment of up to five years.

The problem, however, soon arose that this was too vague. In practice, neither lawyers nor judges were entirely sure of what was actually meant.

Originally, the Criminal Law Revision Committee had proposed that section 16 should create two offences:

• Obtaining credit by deception
• Inducing an act by deception with a view to gain

The House of Lords objected to this, and instead the crime was condensed into 'obtaining a pecuniary advantage by deception', one offence which could be committed in three different ways, covered in sections 2(a), 2(b) and 2(c).

Although section 2(b) and 2(c) were understandable — 2(b) meant simply borrowing and 2(c) meant simply remuneration — 2(a), however, meant 'reduction, evasion or deferment to a debt or charge'. This covered too large an area, and it was not stated if any difference existed between, say, getting 10p off the price of a chocolate bar and successfully avoiding paying for something worth £100,000. Because of this, the Criminal Law Revision Committee was invited to resolve the difficulties, and essentially they recommended splitting section 16(2)(a) into the three offences that make up the 1978 Theft Act.

1978 Theft Act

This act, broken up into three sections, is about:

• Obtaining Services by Deception
• Section 2 — Evasion of Liability by Deception
• Section 3 — Making off without Payment

This made the law much clearer.

Section 16(2)(a) in Action

There was one case in particular in English Law that dealt with section 16(2)(a). This was the case of 'Ray (1974) AC 370 House of Lords'.

Five men, including Ray, went to a Chinese restaurant for a meal, intending to pay for it². After eating it, Ray decided not to pay, and left when the waiter left the room. He was charged under section 16(2)(a).

Because, at the time of ordering there was no deception, as he had intended to pay, Ray was originally found not guilty. Only an appeal to the House of Lords allowed a conviction to be carried.

The House of Lords ruled that he had a pecuniary advantage as he hadn't paid, and had deceived by the implied representation of being an honest customer who was going to pay. This crime now would come under all three sections of the 1978 Theft Act.

As even the House of Lords had been unable to find a conviction under section 16(2)(a) and had been forced to introduce a doctrine of implied representation, it showed that section 16(2)(a) did not work. As the danger that many other people guilty of crimes committed after originally deciding to be honest would be let off, there was no choice but to repeal section 16(2)(a).

Deception Offences Today

Before the repeal of section 16(2)(a) of the 1968 Theft Act, there were only two Deception Offences³:

• 'Obtaining property by deception' — section 15 1968 Theft Act

• 'Obtaining a pecuniary advantage by deception' — section 16(b) and (c) 1968 Theft Act

• 'Obtaining services by deception' — section 1 1978 Theft Act

• 'Evasion of liability by deception' — section 2 1978 Theft Act

What, then, does the 1978 Theft Act cover that section 16(2)(a) failed to?

Obtaining Property by Deception

Section 15 refers to obtaining property, which simply means material objects as well as buildings and land. This section covers obtaining almost anything that is not a pecuniary advantage. Section 15(a) covers money transfers, for example an electronic transfer of funds in order to obtain a mortgage loan.

Section 15 and 16 — excluding 16(2)(a) — were created in the 1968 Theft Act, at the same time as section 16(2)(a), and so their continued existence did nothing to correct the defects of section 16(2)(a).

Obtaining Services By Deception

Section 1 of the 1978 Theft Act was the first answer to the defect in section 16(2)(a). Previously, if someone went to the barbers and had a haircut and, through deception, got a discount, then lawyers were stuck. Their approach was to insist that, if the haircut involved a shampoo, then the shampoo was property, which was obtained by deception, so that this case would be covered by section 15. To claim that a haircut was a pecuniary advantage under section 16(2)(a) was considered too risky as it had gained a reputation for allowing the guilty to go unpunished.

However, under section 1, any service, whether involving property or pecuniary advantages, can result in a prosecution.

Evasion of Liability by Deception

Section 2 of the 1978 Theft Act can be viewed as three offences in one. It covers, in section 2(1)(a) the 'remission of liability', that is, existing debts that are, through deception resulting in an agreement, either reduced or waived. Section 2(1)(b) covers 'inducing a creditor to wait for or forgo payment', that is, to deceive the creditor into thinking that they will receive their money later, or that they do not need to pay, for example by claiming they have already paid. Section 2(1)(c) covers 'obtaining exemption from or abatement of liability', that is the possibility of future debts.

This is where the deception occurs before the liability to make a payment. An example would be when someone asks for an OAP discount at a hairdressers, and deceives the barber into thinking they are an OAP before agreeing to have the haircut. These three offences are allowed to overlap in practice, in order to avoid the confusion experienced before the 1968 Theft Act.

Making off without Payment

Section 3 was created to cover the difficulties that had plagued section 16(2)(a). As the main fault of 16(2)(a) was that of whether there was any deception when obtaining a pecuniary advantage, section 3 of the 1978 Act made the existence of deception unnecessary.

Section 3 covers 'making off without payment', which means that anyone who;

... knowing that payment on the spot for any goods supplied or services done is required or expected from him, makes off without having paid... with intent to avoid payment...

shall be guilty of an offence. This, unlike section 16(2)(a), does not cover services that are not legally enforceable⁴.

So now you have the definitive guide of a part of English and Welsh law that no longer exists — perhaps the most important non-existent law on statute books anywhere!