R v Allen

Factual and Procedural Background

The Respondent booked a room in a hotel from 15 January 1983, remained until 11 February 1983, and departed owing £1,286.94. Two days later the Respondent telephoned the hotel, explained financial difficulties, and arranged to return to leave belongings and an Australian passport as security. The Respondent was arrested on that return and maintained that payment was genuinely intended once business ventures produced funds.

An indictment at the Crown Court contained three counts under the Theft Act 1978. The jury was discharged on counts 1 and 3 but convicted on count 2 (section 3: “making off without payment”). On 23 July 1984 the Court of Appeal (Criminal Division) quashed the conviction after a three-day hearing. The Court of Appeal refused leave to appeal but certified a question of general public importance. The Appeal Committee of the House of Lords granted leave, and the matter came before the Appellate Committee, resulting in the present judgment delivered on 13 June 1985.

Legal Issues Presented

1. Whether, on a correct construction of section 3(1) of the Theft Act 1978, the phrase “with intent to avoid payment of the amount due” requires the prosecution to prove an intention permanently to avoid payment, or whether an intention merely to avoid payment “on the spot” suffices.

Arguments of the Parties

Appellant's Arguments

• Section 3(1) applies to anyone who dishonestly makes off intending to avoid payment on the spot, even if later settlement is contemplated.
• The words “payment on the spot” define the moment when the amount becomes due; therefore an intent to defer payment at that moment fulfils the statutory requirement.
• If the wording is ambiguous, the broader reading should be adopted to give effective protection to tradespeople such as cab drivers and restaurateurs.

Respondent's Arguments

• An additional mens rea element—beyond dishonesty and knowledge—is required: an intention to evade payment altogether, not merely to delay it.
• The statutory language, if ambiguous, must be construed in favour of the accused under the principle that penal provisions are strictly interpreted.
• The Appellant’s reading would render the final words of section 3(1) redundant, because anyone leaving without paying necessarily intends some delay.

Table of Precedents Cited

Court's Reasoning and Analysis

All members of the Appellate Committee—Judge Hailsham, Judge Scarman, Judge Diplock, Judge Bridge and Judge Brightman—agreed that the statutory language, properly construed, demands proof of an intention to evade payment altogether.

• The Court adopted the analysis of Judge Boreham in the Court of Appeal: to convict, the Crown must prove (1) making off without paying; (2) knowledge that payment was expected; (3) dishonesty; and (4) intent to avoid payment of the amount due.
• If “intent to avoid payment” meant only postponement, element (4) would add nothing to elements (1)–(3). Therefore it must introduce a qualitatively different purpose—permanent default.
• Even assuming arguendo that “avoid” could mean either permanent or temporary evasion, the penal nature of the provision triggers the rule of lenity; any ambiguity is resolved in favour of the accused.
• The Court examined the 13th Report of the Criminal Law Revision Committee solely to ascertain the mischief addressed. The report stipulated an offence covering those who “go away … intending never to pay.” The enacted section mirrors the draft Bill in material respects, corroborating the Court’s grammatical reading.
• The Appellant’s suggested construction would require rewriting the statute—either by inserting “such” before “payment” or by equating dishonesty with intent—steps the judiciary cannot take.

Holding and Implications

APPEAL DISMISSED. The certified question was answered in the affirmative: an intention permanently to avoid payment is required under section 3(1) of the Theft Act 1978. The order of the Court of Appeal quashing the conviction was affirmed. Costs of both parties are to be paid from central funds pursuant to the Costs in Criminal Cases Act 1973.

Implications: The judgment clarifies that section 3(1) targets only those who abscond with a permanent intention not to pay, leaving mere temporary non-payment to civil remedies or other statutory provisions. No new precedent was set, but the ruling provides authoritative guidance on the mens rea necessary for “making off without payment.”