​KembaraXtra-Case Law-Shortland (1995) CA: Obtaining Services by Deception 
Case Summary

• Defendant (D): Opened bank accounts using a false name and passport.
• Claim: The bank claimed they would not have opened the accounts if they knew of the deception.
• Charge: Obtaining services by deception under Section 1 of the Theft Act 1978.

Legal Issue

• Whether it could be assumed that banking services are paid for, even without explicit evidence.

Court Holding

• The judge stated it would be "an affront to common sense" to believe the services would be free.
• The Court of Appeal held that this statement should have been withdrawn from the jury.
• The jury could not infer with certainty that the banking services would be paid for.

Key Takeaways

• Inference and Certainty: A jury cannot infer crucial elements of a crime (like payment for services) unless there is a basis for doing so with certainty. "Common sense" is not a substitute for evidence.
• Burden of Proof: The prosecution must provide sufficient evidence to prove all elements of the offense beyond a reasonable doubt.
• Judicial Direction: Judges must accurately guide juries on permissible inferences and the standard of proof. Directing a jury to assume a disputed fact is improper.

​KembaraXtra-Case Law-Widdowson (1985) - Obtaining Services by Deception

​Case Summary: This case concerns the charge of obtaining services by deception under the Theft Act 1978, specifically related to a hire purchase agreement.
I. Facts:

• Defendant (D): Indicted for obtaining services by deception.
• Alleged Deception: Obtaining credit facilities to assist in car purchase.
• D's Argument: He obtained a hire purchase agreement, not credit facilities. He argued a hire purchase agreement doesn't fall within the definition of "services" in Section 1 of the Theft Act 1978.

II. Legal Issue:

• Does a hire purchase agreement constitute credit facilities as defined under Section 1 of the Theft Act 1978 for the purpose of "obtaining services by deception"?

III. Holding:

• The court held that a hire purchase agreement is not equivalent to credit facilities.
• Reasoning:
• • The company provides an option to purchase, not credit.
  • The hirer can terminate the agreement at any time.
• Outcome: The indictment was deemed wrong.

IV. Per Curiam (Obiter Dicta):

• The court suggested (but did not definitively rule) that obtaining a hire purchase agreement does fall within the broader definition of "services" in Section 1 of the Theft Act 1978, even if it's not "credit facilities."

​KembaraXtra-Case Law-Callender (1992) CA - Obtaining Pecuniary Advantage by Deception

​Case Summary:

• Defendant (D): Self-employed accountant.
• Deception: Falsely claimed membership in the Chartered Institute of Management Accountants and graduation from the Institute of Marketing.
• Victim (B): Hired D to prepare accounts based on D's false claims.
• Charge: Obtaining a pecuniary advantage by deception (under relevant statute - presumed to be s 16(2)(c) referred to in the held section).
• D's Defense: Argued he did not obtain an "office or employment".

Key Legal Issue:

• Interpretation of "office or employment" within the context of obtaining a pecuniary advantage by deception.

Held (Court's Decision):

• Definition of "office or employment": The phrase is not limited to a strict "contract of service."
• Wider Interpretation: "Office or employment" should be understood in a broader, ordinary language sense.
• Application to the Case: D's services provided to B did constitute obtaining a pecuniary advantage by deception.

Key Takeaways:

• Broad Scope of "Office or Employment": Avoids a narrow, technical interpretation, encompassing a wider range of situations where deception leads to financial gain.
• Focus on Ordinary Language: Courts prioritize a common-sense understanding of legal terms.
• Relevance to Deception Cases: This case clarifies the application of laws concerning financial deception, particularly regarding misrepresentation of qualifications or affiliations.

​KembaraXtra-Case Law-Waites (1982) - Obtaining a Pecuniary Advantage by Deception

• Case: Waites (1982) CA

I. Facts

• Defendant (D): Opened a bank account, received cheque book and banker's card (guaranteeing cheques up to £50).
• Overdraft: D made no overdraft arrangements.
• Action: D used cheques and card, becoming £850 overdrawn.
• Charge: Obtaining a pecuniary advantage by deception.
• Defense: D argued being "allowed to borrow by way of overdraft" as defined by s 16(2)(b) wasn't met because the bank eventually stopped her.

II. Issue

• Whether D had been "allowed" to borrow by way of overdraft as contemplated by the relevant statute (Section 16(2)(b)).
• Important considerations: Did the bank's permission extend beyond the initial credit limit?

III. Holding

• Definitions in s 16(2) are EXCLUSIVE: If the actions don't fit the definitions, no offense is committed.
• Meaning of "Allow": "Allow" includes permission to use the card.
• Cardholder's Power: The card gave D the power to use it beyond the imposed limits, even if it breached her contract with the bank.
• Bank's Obligation: D knew the bank would be obligated to cover the debt with the shopkeeper.
• Conclusion: D was "allowed" to borrow by way of overdraft.

IV. Outcome

• Conviction Upheld.

​KembaraXtra-Case Law- Bevan (1987) CA - Obtaining Pecuniary Advantage
​I. Case Overview

• Case Name: Bevan (1987) CA
• Offense: Obtaining a pecuniary advantage.

II. Facts of the Case

• Defendant (D): Issued a cheque guarantee card but had no overdraft arrangement.
• Cheque Card Limitations: The card did not entitle him to overdraw without an overdraft arrangement.
• Action: D presented three cheques (supported by the card) while his account was already overdrawn.
• Bank's Obligation: The bank was obliged to honor the cheques due to the guarantee.
• D's Claim: D argued he was not "allowed" to borrow via overdraft.

III. Legal Issue

• Whether using a cheque card in the presented scenario constituted borrowing by way of overdraft, even without a formal arrangement.

IV. Court's Holding

• Transaction as Borrowing: A transaction completed using a cheque card in this scenario was borrowing by way of overdraft.
• Bank Compliance: The bank had complied with the payee's bank's request for reimbursement.
• Overdraft as Consensual:
  • D impliedly requested the overdraft by presenting the cheques.
  • The bank, by honoring the cheques, agreed, albeit reluctantly.
• Bank's Allowance: The bank allowed D to borrow by way of overdraft.
• Outcome: D's conviction was upheld.

V. Key Takeaways

• Implied Request: Presenting a cheque with a guarantee card when the account is overdrawn can be interpreted as an implied request for an overdraft.
• Consensual Overdraft: A bank honouring a cheque in such circumstances can be seen as consenting to the overdraft, even if grudgingly.
• Pecuniary Advantage: Obtaining credit via this method constitutes a pecuniary advantage.

​KembaraXtra-Case Law-Graham (1996) CA: Deception, Theft, and Evasion of Liability

• Case Overview: A solicitor (D) submitted a fraudulent mortgage application. The mortgage was never completed. D was convicted of obtaining property by deception. The appeal considered alternative charges: theft and evasion of liability.

Issues on Appeal: Could alternative charges have been substituted?1. Theft

• Preddy's Impact: If Preddy (a previous case concerning obtaining property by deception) ruled out the obtaining property by deception charge, it likely also impacts the theft charge.
• Chose in Action:
  • Theft charge requires showing that the chose in action was appropriated while belonging to another.
  • Unlikely in this case: D's actions likely created a new chose in action, rather than appropriating an existing one.
  • There may be issues in identifying an act of "appropriation."

2. Evasion of Liability

• Unrealistic Charge: The court found a charge of evasion of liability (remitting the lender's bank's liability to the lender) to be unrealistic.

3. False Accounting

• Viable Alternative: D could have been charged with false accounting.

4. Halai (1983) Overruled

• Service Definition: The earlier ruling in Halai (1983), which stated a mortgage advance could not be described as a service, is no longer good law and should not be followed.

​KembaraXtra-Case Law- Goldman (1997) CA - Fraudulent Trading & Recklessness

​Case Overview:

• Defendant (D), director of a rare coin investment company, was convicted of fraudulent trading under s 458 of the Companies Act 1985.
• Prosecution alleged false representations regarding the coins' market value and marketability.
• D appealed, claiming misdirection regarding the meaning of recklessness and its distinction from dishonesty.

Key Issues:

• Recklessness in Deception: Whether the Caldwell meaning of recklessness (a test involving objective failure to consider an obvious risk) is appropriate for deception offences.
• Dishonesty vs. Recklessness: Differentiating between dishonest intent and reckless disregard in deception cases.

Court Held:

• Deception can be Reckless or Deliberate: The offence of obtaining by deception can be committed through either recklessness or a deliberate act.
• Caldwell Recklessness Inappropriate: It is not appropriate to direct a jury based on the Caldwell definition of recklessness in deception cases.
• Dishonesty & Inadvertence are Mutually Exclusive: If deception requires dishonesty, it cannot be inadvertent. It must be:
• • Deliberate, or
  • Made with conscious indifference to a risk.
• Separate Issues: Dishonesty and recklessness are separate issues in deception cases. The judge must clarify this distinction during summing up.

Key Takeaways:

• This case clarifies that the standard for recklessness in deception cases is higher than the objective Caldwell test.
• It emphasizes the subjective element of dishonesty and awareness of risk in deception offences.
• It highlights the importance of clear jury instructions that distinguish between dishonesty and recklessness.

​KembaraXtra-Case Law- Preddy (1996) HL - Property Belonging to Another

• Case Overview: D obtained mortgage loans through deception involving false statements in applications. Payments were made via cheques and CHAPS. D was convicted of obtaining property by deception and appealed.

Key Issue: What constitutes "property belonging to another" when electronic transfers are involved?

• The Argument: D argued that electronic transfers didn't involve the transfer of identifiable property.

Held: No Transfer of Identifiable Property in Electronic Transfers

• Ruling: The House of Lords agreed with D.
  • When payment is made via electronic transfer:
    • No identifiable property is transferred from the payer to the payee.
    • The payer's credit balance is extinguished.
    • A new chose in action (right to sue) is created in the payee's account.
• Implication:
  • D obtained mortgage advances by deception, but this did not contravene s 15 of the Theft Act 1968 (obtaining property by deception).
  • The deception did not result in D obtaining "property belonging to another"

Aftermath: Appeals Based on Preddy

• Note: The Preddy judgment led to appeals from other defendants convicted under s 15 for similar mortgage frauds.

​KembaraXtra-Case Law- Naviede (1997) CA
I. Core Issue:

• Whether credit fraud constitutes obtaining services by deception.
• Relates to obtaining credit facilities from two banks.

II. Relevance to Previous Cases:

• Another Preddy appeal case.
• Connects to Halai, Graham, Cooke, and Cumming-John (1997).

III. Halai Distinction:

• Halai established that a mortgage advance for private residence typically does not amount to a service.
  • Key point: Benefit not conferred.
• Naviede clarifies Halai does not mean no mortgage advance ever constitutes a service.
  • Emphasis on specific circumstances and terms of the advance.

IV. Application to Revolving Credit:

• Naviede involved revolving credit, not a traditional mortgage.
• Despite the difference, the same authorities apply.

V. Non-Per Curiam Status:

• Decisions in Graham, Cooke, and Cumming-John (1997) were not per curiam (not delivered by the whole court).
• Implication: Potentially less precedential weight.

VI. Key Takeaways:

• The provision of a credit facility can be a service.
• Circumstances of the credit arrangement are vital to determine if a service has occurred.
• Halai is limited to specific contexts of mortgage advances for private residences.

​KembaraXtra-Case-Law Nathan (1997) & Money Transfer Fraud

​I. Case Summary: Nathan (1997)

• Facts:
• • D, a solicitor, applied for a loan on behalf of his client, making false representations about its purpose.
  • Loan transferred electronically to D's client account.
  • D charged with obtaining property by deception.
• D's Appeal Grounds:
• • Preddy precedent: Electronic transfer of money between bank accounts does not constitute obtaining property by deception.
  • Obtaining services by deception: Cannot be substituted, as the banking facility was provided to his client, not himself.
• Court Ruling:
• • Crown's argument that the credit balance belonged to the bank until transferred to the client was untenable. It was held jointly by the solicitor (as trustee) and the bank.
  • Conviction for obtaining property by deception quashed due to the Preddy precedent.
  • Conviction for obtaining services by deception (s1 of the Theft Act 1978) substituted. The service need not be obtained directly for the defendant himself.

II. Key Issues Highlighted by Nathan and Preddy

• Difficulties in prosecuting electronic transfer fraud: Pre-existing legislation struggled to adequately address situations where money was transferred electronically, specifically in defining what "property" was obtained.
• The Preddy Effect: Preddy raised significant challenges in prosecuting these types of fraud under existing legislation.

III. Legislative Response: Section 15A of the Theft Act 1968

• Creation of a New Offence: Dishonestly obtaining a money transfer for oneself or another by deception.
• Source: Introduced by the Theft (Amendment) Act 1996.
• Purpose: Specifically designed to address the gap in legislation exposed by cases like Preddy and Nathan.
• Definition of Money Transfer: Explicitly covers situations involving a debit from one account and a corresponding credit to another.