I was at a festival, buying food from a food truck. Due to heavy rain, the vendor's point-of-sale system was down and she was unwilling to leave the truck. She asked me to tell her the price of the meal I wanted based on the menu board outside the truck, which she could not see due to the angle.
I jokingly said "one dollar", and then told her the correct price. What if I had told her an incorrect but still plausible price? Would that have been a crime, or am I covered by free speech laws?
Free speech laws do not allow individuals to commit fraud. This may be the case here. The details of Fraud by False Representation can be found in s2 of the Fraud Act 2006:
A person is in breach of this section (and so guilty of an offence under section 1) if he—
(a) dishonestly makes a false representation, and
(b) intends, by making the representation—
(i) to make a gain for himself or another, or
(ii) to cause loss to another or to expose another to a risk of loss.
In your scenario, there is clearly a false representation. Therefore, the remainder of the offence requires us to consider whether your conduct is dishonest and then look to the intention behind the false representation.
You don't refer to your mindset in the question, so it's hard to say if these points are satisfied, but I will provide some general guidance.
Dishonesty is tested using the Ivey Test (the same test that is used for dishonesty in the context of theft) (Ivey v Genting Casinos [2017]). There are two limbs to this test: 1) consider the defendant's subjective knowledge or belief and then 2) evaluate their conduct using an objective comparison to the standards of ordinary, decent people.
Regarding an intention to create a gain or a loss, there must be a causal link between the intention and the representation.
Explanatory Note 13 of the Fraud Act 2006 notes that there is no need to prove that the victim was actually misled. Indeed, this isn't mentioned anywhere in s2 above. Therefore, you cannot attempt to defend your conduct by saying that the victim knew (or should have known) the actual price.
Strafgesetzbuch (StGB)
§ 263 Betrug
(1) Wer in der Absicht, sich oder einem Dritten einen rechtswidrigen Vermögensvorteil zu verschaffen, das Vermögen eines anderen dadurch beschädigt, daß er durch Vorspiegelung falscher oder durch Entstellung oder Unterdrückung wahrer Tatsachen einen Irrtum erregt oder unterhält, wird mit Freiheitsstrafe bis zu fünf Jahren oder mit Geldstrafe bestraft.
(2) Der Versuch ist strafbar.
(3) ...
Translation:
German Criminal Code (StGB)
§ Section 263 Fraud
(1) Any person who, with the intention of obtaining an unlawful pecuniary advantage for himself or a third party, damages the property of another by creating or maintaining an error by means of false pretenses or by distorting or suppressing true facts shall be liable to a custodial sentence not exceeding five years or to a monetary penalty.
(2) The attempt is punishable.
(3) ...
So, you may say "no, if your system is down, come out here yourself" or "sorry, I cannot read it", or "I think 3€ would be a fair price" or you may make an honest mistake of some kind, but if you purposefully lie to pay less than you owe... that is fraud, plain and simple.
