Someone is guilty of obtaining services dishonestly if:
- He or she obtains services which he or she knows cost money
- By doing or saying something dishonest
- Then does not pay for the services (in full)
- Having intended not to pay for the services in the first place
The offence could apply to company directors who, for example, order maintenance of property or technology at the business when they know that they are trading insolvently and cannot pay their bills. On the other hand, cases of defendants involved in a long firm fraud could find themselves charged with obtaining services dishonestly alongside the usual fraudulent trading or fraud by misrepresentation charges.
At the less serious end of the spectrum are people who ride on the bus or underground without paying and other smaller scale offences.
How The Law Works
This offence is based upon the old offence of Obtaining Services by Deception under the Theft Act 1978. Like the old offence it relates only to the obtaining of services that are provided in return for payment. Unlike the old offence there does not need to be any deception or fraudulent representation.
The Theft Act 1978 obtaining of services was defined as the conferring of a benefit by doing an act or permitting an act to be done. The terms ‘services’ and ‘obtaining’ are not defined in the Fraud Act 2006 but are thought to have the same meaning as under the old law.
A service that would be freely given is not caught by this law even if dishonesty is used to obtain it. Therefore, the fraudulent opening of a building society account would not amount to this offence if no payment is required; neither would a false representation about a disability in order to obtain the services of a home help. Similarly, this law does not apply where a service is obtained in circumstances where the supplier does not intend to perform or grant the benefit of the service. An example might be where a person dishonestly logs on to another person’s Wi-Fi network. What are caught by this section are agreements for services for payment which would not be enforceable in a civil court, for instance, to do something illegal.
Questions for the Defence Team in a Prosecution for Obtaining Services Dishonestly
The crucial evidential point in many of these cases is what the state of mind of the accused person was when a transaction was started. In the following situations, a defendant cannot be convicted of the offence:
- Where a defendant honestly believed at the time of asking for the services that he or she would pay for them.
- Where the defendant forgot to pay after the fact.
- Where a genuine dispute over payment arose after the provision for the service.
- Where a company director thought that he would be able to pay later down the line, even if the company did not have the money at the time.
Issues relating to dishonesty of the defendant or the knowledge that a service was going to be charged for can be the major area that the defence team should focus on in these cases to secure a not guilty verdict for the client.
Sentencing
Sentences for obtaining services dishonestly are a maximum of 5 years in prison. Sentences of a shorter amount of time are possible, and for less serious offences the sentence might be a community sentence or a fine.
In a serious case, even when the evidence is overwhelming and the client has to plead guilty, sometimes prison can be avoided if the defence solicitor, barrister, and client work together to present the judge with good mitigation about the client and his case. Of course, there are no hundred percent guarantees, but a proactive approach by the defence team can go a long way.
Written by Athena Forensics. Computer Forensic and Mobile Phone Forensic Investigation and Expert Witness Services Throughout the UK www.athenaforensics.co.uk
0845 882 7386
