Revise Making off without payment as defined in s3 Theft Act 1978 for Cambridge 9084 (2.2.6)

The offence of making off without payment is defined in s3 of the Theft Act 1978. The actus reus begins with the defendant 'making off'. This means departing from the 'spot' where payment is required or expected. The term 'spot' is interpreted narrowly and refers to the precise location of payment, such as the cashier's desk or the pay-point in a restaurant. As established in R v McDavitt (1981), merely preparing to leave or moving towards an exit is insufficient; the defendant must have actually left the point where payment was due. For example, a diner who is apprehended while still inside the restaurant, but away from their table, has not yet 'made off'. This element ensures the offence targets the act of departure itself, not just the failure to pay.

For the offence to be committed, the defendant must have made off without paying for goods that have been supplied or a service that has been done. This presupposes a situation where a legally enforceable debt has been created. Classic examples include consuming a meal in a restaurant, taking a taxi journey, or filling a car with petrol (as in R v Brooks and Brooks (1983)). A crucial element is that payment must be 'required or expected on the spot'. If the provider agrees to extend credit, allowing the defendant to pay at a later date, then leaving without paying does not satisfy the actus reus of this offence. The case of R v Vincent (2001) confirmed that if an agreement is made to defer payment, the requirement to pay 'on the spot' is nullified.

The mens rea for making off without payment has three components. The first is that the defendant must know that payment on the spot was required or expected. This is a subjective requirement; the defendant must have been personally aware of this obligation. The second component is dishonesty. Following the Supreme Court's decision in Ivey v Genting Casinos (2017), the test for dishonesty is now objective. The court asks: was the action of making off without payment dishonest according to the standards of ordinary, reasonable, and honest people? The defendant's own belief about the honesty of their actions is no longer the key factor, which simplifies the test previously established in R v Ghosh (1982). This objective standard ensures a consistent application of the law.

The final and most specific element of the mens rea is the 'intention to avoid payment of the amount due'. The House of Lords clarified in R v Allen (1985) that this means an intention to avoid payment permanently. If a defendant genuinely forgets to pay, or intends to return and pay later, they lack the necessary intent for this offence. For example, a person who leaves a restaurant distracted by a phone call, but fully intends to go back and settle the bill, would not be guilty. This distinguishes the criminal offence from a mere civil debt or an honest mistake. The prosecution bears the burden of proving beyond reasonable doubt that the defendant had no intention of ever paying the money owed.