“Dishonesty” for the purpose of deception is similar to that in respect of theft. Where a person does something in the honest belief such as drawing a cheque in the absence of funds, there would be no dishonesty if he believes that he has funds. On the other hand, if a person draws funds on a cheque that he knows he cannot be meet but with an intention of paying it back some day this is likely to constitute deception.
Deception may arise by creating a false impression. This may be actively created or may arise by failure to correct the false impression. A person may create a false impression as to his means and status by his getup and appearance.
Deception may be committed by obtaining benefits from public authorities by false means. It may be committed by procuring work that is in fact unnecessary, on the basis of false representations as to its necessity.
False representations and actions giving a false impression, are more likely to constitute deception, where there is a relationship of trust. Where there is a confidential or a fiduciary relationship there would be a greater obligation to correct a false impression.
Another must be induced to door induced to refrain from doing something. The essence of deception is that another is caused to act in a way in which he would not have acted, but for the deception. The deception must be undertaken to a person rather than a machine.
Obtaining services by deception,
The services may be for the accused or a third party. The deception must cause the victim to provide the services, typically on the understanding that payment will be forthcoming from the accused.
The legislation provides that a person obtains services by deception where another is induced to make a loan on the understanding that repayment will be or has been made in respect of the loan.
Making off without payment
The person must know that payment on the spot is required. If the transaction is of a type that is normally funded on credit, the offence could not be committed. In many businesses, such as retail or accommodation services, payment on the spot will be required. There must be an intention to avoid payment on the spot.
A payment may be a cash payment or payment by credit card or check. It is required that the person makes off from the spot from where payment is required. A person may attempt to make off without payment.
Cases have arisen where a person has refused to pay and an attempt is made to arrest him. In such a situation, the offence of attempting to make off without payment may be committed. It may be held that the intention not to pay remains, until a later time when he takes off without successful arrest.
The offence is not committed here the supply of goods or services is unlawful in itself. This may arise if the goods are illegal such as in the case of drugs. It also applies where the payment is not legally enforceable as in the case of a child’s undertaking. Similarly, if there has been a breach of contract, payment is not lawfully due so the crime cannot be committed.
Power of Arrest
Any person may arrest without warrant, a person who is, or whom he, with reasonable cause suspects to be in the act of committing the offence of deception. Where a member of Garda Síochána with reasonable cause suspects that such an offence has been committed, he or she may arrest without warrant any person whom he with reasonable cause, suspects to be guilty.
An arrest by a person other than a member of the Garda Síochána may be effected, only where the person with reasonable cause, suspects that the person to be arrested would otherwise attempt to avoid arrest by a member of Garda Síochána. The arrested person must be transferred to the custody of a member of Garda Síochána as soon as practicable.
The special power of arrest is necessary because the offence is subject to imprisonment up to two years and indictment and/or fine up to €3000; less than the threshold for an arrestable offence
Conspiracy to Defraud
Conspiracy to defraud is a crime at common law. There must be a conspiracy to dishonestly deprive a person of something.
It may consist of an agreement to commit an unlawful act. Even if the unlawful act is not of itself a criminal offence, it appears that it may be enough if the conduct involves a false representation or is dishonest.
Taking Vehicle Without Consent
Motor vehicles may be stolen in the normal way. Unlike the previous law, the intention (only) of temporarily depriving the owner of possession suffices. This differs from the earlier law which did not cover the temporary taking of vehicles such as by way of joyriding.
There is a special offence under the Road Traffic Act of taking a mechanically propelled vehicle without the consent of the owner or other lawful authority. It is an offence to allow oneself to be carried in such a vehicle if one is aware of the taking without consent. The offence may be committed by use or taking possession of the vehicle. The vehicle need not necessarily be driven if it is taken under the control of the persons concerned. An honest belief of consent would be a good defence.
A member of an Garda Síochána may arrest a person who, he believes on reasonable grounds to be committing an offence under this provision. Where a person is tried for theft of a public vehicle, either in the District Court or an indictment, this offence may be charged and/ or found in the alternative.
It is an offence without lawful authority or reasonable cause, to interfere or attempt to interfere with the mechanism of a mechanically propelled vehicle while it is stationary in a public place and to get into or attempt to get on or into a vehicle while it is so stationary. The offence is subject on summary conviction to a fine of €1,500 or three months’ imprisonment. A member of an Garda Síochána may arrest a person whom he believes unreasonable grounds to be committing an offence under the section.
The provision does not apply to a person taking, in relation to a mechanically propelled vehicle which is obstructing his entry or exit to or from any place, such steps as are reasonably necessary to remove the vehicle, by human propulsion sufficient to end the obstruction. It is defence to show that the person believes on reasonable grounds that he has the requisite authority.
It is an offence to unlawfully seize by force or threat, control of a vehicle or compel or induce or some person to use it for unlawful purposes. This provision applies to aircraft ships and hovercrafts. The offence is subject on conviction on indictment to up to 15 years’ imprisonment. The offence constitutes what is commonly called hijacking.
Abstraction of Utilities
There are special provisions in relation to the unlawful abstraction of electricity. Electricity is not property. Gases and water are property for the purpose of theft.
A person who dishonestly uses or causes to be used wasted or diverts any gas or electricity is guilty of an offence. It is the defence that this was done witha bona fide claim of legal right.
A person who interferes with an article owned or controlled by the gas or electricity authorities or providers is guilty of an offence. There are presumptions regarding tampering with meters or diverting gas electricity etc. There are presumptions where the alteration or interference can be proved to have taken place in circumstances where the defendant /accused was in control and occupation of the premises at the time.
Interference includes changing the meter or preventing its proper registry of output. A person who manufacturers, imports, sells, offers to sell or supplies without lawful authority devices advises to affect or alter meters to prevent their proper registration is guilty of an offence.
A user of gas or electricity who has reasonable grounds for believing a meter is not properly registering by reason of having been unlawfully interfered with must reasonable steps to ensure the interference is discontinued. Failure to do so is an offence.
The offence is subject on conviction to a fine of up to £1500 and imprisonment of up to 12 months or an indictment fine of up to £20,000 or five years or both. This applies to the above offences other than the failure to prevent interference. This latter offence is subject on summary conviction to a fine of up to €625 or three months’ imprisonment. In addition, the court may order the consumer to pay sums for the gas or electricity unlawfully obtained.