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Should non-payment of a mobile phone bill be a criminal offence?

Arran Cameron
It used to be known as abstraction of electricity on a landline telephone network but it might be better referred to as abstraction of EM waves or photons, depending on how you view the wave particle duality, on a mobile network.


A friend racked up a mobile phone bill of nearly £2000 as a result of exceeding his data allowance whilst abroad back in 2017. He changed his network provider then cancelled the direct debit resulting in this bill going unpaid to today. It's not actually illegal to do this as all the old network provider can do is demand the payment, as a civil matter, and ruin his credit rating. He claims that unlike an unpaid gas or electricity bill, an unpaid phone bill has not consumed any of the earth's precious natural resources apart from a bit of electricity that cost only a tiny fraction of the value of the bill.


A local bobby disagrees and says that theft is theft regardless of whether it's a tangible object or a non-tangible service, so the criminal should be brought to justice and jailed.


Does the IET have a position regarding the legal status of unpaid phone bills and whether or not refusal to pay should be a criminal offence?
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    Most of the contributors to this forum are not employed by the IET and not in a position to answer to the IET's position, myself included. However I would expect that such behaviour would be considered contrary to the Engineering Council's Statement of Ethical Principles which are endorsed by the IET.

    Alasdair
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    I feel I ought to know the answer to this and interested to realise that I don't! (Other than knowing it is complicated.) My immediate response is that this is civil law, as any breach of contract where you contract to pay for services but then don't. But there must be some point where it becomes criminal law - what's the difference between either stealing oranges from a greengrocer's stall or telling the greengrocer you're going to pay for them later (verbal contract) and then not paying for them???


    I think the abstraction of energy (or depletion of oranges!) is a bit of a red herring, I suspect a modern law (criminal or case law) would be more specifically about defrauding the provider.


    Thanks,


    Andy


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    On a more general note I would say that the service provider should be expected to inform the subscriber that they are being subjected to extra charges as soon as these charges are levied and not later rely on their terms and conditions to extract payment.

    BT do inform you immediately by SMS if you've been subject to charges outside of your contract, others don't.  That's why I am now with BT and not O2 and have a black mark on my credit rating.
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    Arran Cameron:

    A local bobby ... says that theft is theft regardless of whether it's a tangible object or a non-tangible service,




    I have looked up the act (Theft Act 1968 inc. amendments) for the definition of theft to decide whether this is correct or not, and I am none the wiser.....

    On the whole I would agree with Andy that if you have entered into a contract and payment has been requested in accordance with that contract then it is breach of contract and defrauding the provider if payment is not forthcoming. I suspect that the provider could be legally entitled gain a court order for payment and to make use bailiffs and sequestration of property if payment is not forthcoming, though such heavy handed action would be bad publicity.

    Regarding the fact that BT provide a text to warn of charges outside the contract is good to know but I suspect that this is a service they provide that is not actually specified in the contract. A small cost to them which gives them a big benefit in customer relations (and goodness know they may need it from some other stories I have heard from other areas of their business....) so the fact that other companies do not provide anything similar is not a breach of contract as far as I am aware.

    Alasdair

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    It's not actually illegal to do this as all the old network provider can do is demand the payment, as a civil matter, and ruin his credit rating.



    They can do more than that.  He could be taken to court and receive a CCJ (County Court Judgment).  Then the phone company could send in the High Court Enforcement Officers (or equivalent in Scotland), and he could wake up one morning to find his car's been clamped, and will be towed away if he doesn't pay.
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    Taking off my Staff hat (what I am about to say is not endorsed by the IET or represent the official views of the IET) non payment of bills is a civil offence and not criminal. The offence is not paying his bill to the provider and not 'theft' as such. 


    There's also a lot more involved in providing a phone service than 'just a bit of electricity'... There's the entire communications network ? that has to be maintained and supported, satellites that have to be built and put into orbit  ? ? etc etc

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    There's a surprisingly readable description here:
    https://www.cps.gov.uk/legal-guidance/theft-act-offences


    I like this bit:

    Most of the offences in the Theft Acts 1968 and 1978 require proof of dishonesty as a specific ingredient.

    [...]

    R v Ghosh [1982] EWCA Crim 2 is the leading authority on dishonesty. It sets out a two stage test to be applied whenever dishonesty has to be proved as an element of an offence.

    If the answer to either of the following questions is 'no' a prosecution is bound to fail. The first element is objective; the second subjective:



    • According to the ordinary standards of reasonable and honest people, was what was done dishonest?

    • If it was dishonest by those standards, did the defendant realise that reasonable and honest people would regard the conduct as dishonest?


    This bit's also quite fun:


    Electricity is not property within the meaning of section 4 Theft Act 1968 (Low v Blease [1975] Crim L.R. 513) and cannot therefore be stolen. When electricity is used without due authority, or dishonestly wasted or diverted, prosecutors should charge the offence of abstracting electricity contrary to section 13 Theft Act 1968.





    We had a horror story with mobile phone bills when our daughter first started at Uni. She was sent two "free" SIM cards, which she never activated, but then started getting bills for. As described above this got as far as bailiffs writing to our address, which was pretty unpleasant. To be fair, when we contacted the bailiffs they were fine, they appeared to be used to incompetent phone companies. Thankfully the ombudsman sorted it it out, including getting us compensation for stress and our wasted time with phone company staff who switched from "it's fine, those accounts are closed, it's all sorted" (and then a month later another demand would come) to "it's with the bailiff's now, there's nothing we can do" (the most ridiculous of all the statements, the bailiffs are under contract to the phone company.) I'm reasonably good at contract law and dealing with poorly managed companies and it was still a nightmare - I'd hate to think how someone who knew nothing at all about it would cope.


    Grrrrr...


    Andy

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    Just realised I forgot the best bit of the story. I pushed and pushed and eventually got them to send me proof that these accounts had actually been activated. So they sent me a copy of a huge phone bill. Which was somebody elses! With their phone number (a different number from the accounts we were discussing), address, and full details of all their calls (several pages worth). I returned it straight back and reminded them of their obligations under the data protection act, and added that I was adding what they'd done to the list of items that was with the ombudsman.  It was probably a coincidence that it got sorted very quickly after that but it was a really, really satisfying moment!!!! The only part of the whole affair that made me laugh  - a lot.


    But it was very disturbing before that to find that bailiffs can be called without anyone giving you evidence that you actually do owe them money (e.g. in this case sending invoices for a service which was never requested and never received). Which I seem to remember finding out at the time puts the bailiffs on flaky ground if they do come on to your property - but no-one wants to get that far.
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    I remember some people were fined when WiFi first came about for standing in the street and using other people’s and businesses WiFi.


     Andy B
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    Wikipedia


    In London, 2005, Gregory Straszkiewicz was the first person to be convicted of a related crime, "dishonestly obtaining an electronics communication service" (under s.125 Communications Act 2003). Local residents complained that he was repeatedly trying to gain access to residential networks with a laptop from a car. There was no evidence that he had any other criminal intent.[24] He was fined £500 and given a 12-month conditional discharge.[25]



    In early 2006, two other individuals were arrested and received an official caution for "dishonestly obtaining electronic communications services with intent to avoid payment."[26][27]


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