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Fuel Rights Handbook 21st edition

Examining the evidence and the law

• General common law principles
• Contractual liability for meter damage
• Responsibility for meters under the Gas and Electricity Acts

If a supplier alleges that a meter has been tampered with, there are three key areas to consider.

•You must establish what exactly is alleged. On what basis has the supplier found that the meter has been tampered with? In some cases, it will be obvious that the only explanation for damage to a meter is tampering – eg, there is physical evidence of deliberately damage. In other cases, there may be alternative explanations – eg, if meter seals are missing, it may be that these are company seals which were never put on, or were removed by the supplier but not replaced, or have been removed by someone else. Any evidence the supplier has should be presented to you so that you can comment. However, take care in any comment you make, as it is unlikely that you will be cautioned about anything you say possibly being used against you in court.
•You should investigate whether the supplier has evidence that it was you, and not someone else – such as a landlord or neighbour – who tampered with the meter. Usually, the supplier will not know who undertook the tampering. This can make it more difficult for the supplier to take action against you than it would be if it had clear evidence of your involvement. It will help if you can explain why it has been tampered with – eg, if you know that the meter was taken over from a previous occupier who had tampered with it or that it was damaged by builders. However, evidence that the meter was interfered with while in your custody can, depending on the circumstances, be sufficient to convict you for theft of electricity,1Semple v Hingston [1992] Greens Weekly Reports 21:1201 although not an essential ingredient.2R v McCreadie and Tume, 96 Cr App R 143, CA
•The evidence must identify the date or dates on which the alleged tampering occurred.
•Where a case is brought against more than one person in a household, or against a married couple, evidence is needed against all persons, not just one, to sustain a prosecution or conviction. It should be shown that:3R v Hoar [1982] Crim LR 606
◦each person agreed to obtain electricity which would not be paid for; and
◦each of them knew the means to be adopted to achieve that end – namely tampering with the meter; and
◦one of them, to the knowledge of the other(s), who was ready to assist if needed, tampered with the meter so that electricity could be obtained without payment; and
◦each of them knew that electricity which had not been paid for, and which neither of them intended to pay for, was being used by them in their home.

If a supplier alleges that you are liable for theft or tampering, find out which legal provision it is relying on. Different considerations apply when dealing with different parts of the law. Normally the supplier will point to particular provisions in the Gas Act, Electricity Act or Utilities Act, as appropriate, but liability can also arise under general common law principles or under your contract with your supplier.

 

1     Semple v Hingston [1992] Greens Weekly Reports 21:1201 »

2     R v McCreadie and Tume, 96 Cr App R 143, CA »

3     R v Hoar [1982] Crim LR 606 »

General common law principles

In England and Wales, when you receive or take on a meter, you become ‘bailee’ of it. A ‘bailee’ is under a duty to take ’reasonable care’ of bailed property (in this case, a meter).

In Scotland, ‘bailment’ does not apply, but the concept of ‘restitution’ may be used – ie, if you are in possession of goods which do not belong to you, you are under an obligation to look after them until the owner returns for them.

If you intentionally damage a meter, you could be liable to pay compensation to the supplier. The supplier can issue a civil claim for damages and theft losses, or you may be prosecuted for criminal damage, which is an imprisonable offence. It is entirely a matter for the police and Crown Prosecution Service to decide whether a case is dealt with by way of a caution or prosecuted at court. Only a small amount of damage may constitute an offence. On conviction, the court can order you to pay compensation to the supplier to remedy the cost of the damage. Questions of vulnerability are considered before any decision to impose liability for loss arises (see here).1Condition 12A SLC

 

1     Condition 12A SLC »

Contractual liability for meter damage

If you are supplied under a contract, your contractual duty is no higher than your duty as a bailee (see above), but in the past some suppliers have claimed that customers should pay for damage to a meter even though they had done nothing wrong or were not negligent. For example, if a burglar damaged your meter, you would not normally have to pay for the damage under your duty as a bailee unless your negligence allowed the burglar to get into your home. Read your contract carefully because the relevant term contained there may go wider. However, if the term is so wide that it could be regarded as unfair under the Consumer Rights Act 2015, then it should not bind you, and you should refer it to the Financial Conduct Authority (see Chapter 14).

Responsibility for meters under the Gas and Electricity Acts

In nearly all cases the meter will have been provided by a gas supplier or transporter, or hired/loaned by an electricity supplier and, under these circumstances, the meter is its responsibility.1Sch 7 para 10(2) EA 1989; Sch 2B para 3(3) GA 1986

If you hire the meter, you may have to enter into a hire agreement with the supplier. Suppliers have no powers to impose conditions about the care of the meter in such an agreement that go further than those allowed under the Acts or their licence conditions.

There are three specific meter offences under the Acts, each punishable by a fine of up to £1,000:2Sch 7 para 11(1) EA 1989; Sch 2B para 10(1)(a) GA 1986

•damaging or allowing damage to any meter, gas fitting or electrical plant or line;
•altering the meter index or register by which consumption is measured;
•preventing the meter from registering properly.

In each case, the offence can only have been committed if the act was done intentionally or a result of culpable negligence – ie, if it was your fault.3Sch 7 para 11(1) EA 1989; Sch 2B para 10(1)(a) GA 1986

If you are prosecuted for either of the latter two offences, possession of artificial means for altering the way the meter is registering will be taken as prima facie evidence that the alteration was caused by you.4Sch 7 para 11(2) EA 1989; Sch 2B para 10(3) GA 1986 If such artificial means are not found, a conviction would be difficult to obtain, especially if the case concerns a property in multiple occupation or where there has been a burglary.

 

1     Sch 7 para 10(2) EA 1989; Sch 2B para 3(3) GA 1986 »

2     Sch 7 para 11(1) EA 1989; Sch 2B para 10(1)(a) GA 1986 »

3     Sch 7 para 11(1) EA 1989; Sch 2B para 10(1)(a) GA 1986 »

4     Sch 7 para 11(2) EA 1989; Sch 2B para 10(3) GA 1986 »