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8.8.0.2.61Criminal Law Review 2007 Legislative Comment The Fraud Act 2006 - criminalising lying? David Ormerod Subject: Criminal law Keywords: Actus reus; Conspiracy to defraud; Dishonesty; Fraud; Mens rea Legislation: Fraud Bill 2005 Fraud Act 2006 Case: R. v Preddy (John Crawford) [1996] A.C. 815 (HL) *Crim. L.R. 193 Summary: This article provides a comprehensive analysis of the Fraud Act 2006 and its likely impact. Although there is much to welcome, the Act has the potential to create serious practical problems because of the excessive breadth of the offences and a lack of definition of key terms, resulting in undue emphasis placed on dishonesty and the prospect of the criminal courts becoming entangled in complex civil law issues. Introduction By modern standards the Fraud Act 2006 is a remarkably short criminal statute comprising only 16 sections and 3 schedules. Having been seven years in gestation and heralded in debates by one former Law Lord as one of the best Bills from the Home Office in recent years 1 it has much to live up to. Short it may be, but its impact will be substantial. The Act, which came into force on January 15, 2007,2 abolishes the eight heavily-used3 deception offences in the Theft Acts 1968 and 1978, including that inserted post- Preddy by the Theft (Amendment) Act 1996. 4 The principal replacement is a fraud offences carrying a maximum 10-year sentence on indictment. It is a dishonesty-based offence where liability arises by making false representations (s.2), failing to disclose information (s.3), or abusing a position of financial trust (s.4). Each form is a conduct offence, complete on the accused's acts irrespective of any result caused, which represents a significant shift from the deception offences they replace. Obtaining services by deception is replaced by obtaining services dishonestly (s.11), producing a *Crim. L.R. 194 much-needed charge where the obtaining was by wholly automated processes. The Act also introduces wide-reaching offences of possessing (s.6) and making, adapting or supplying (s.7) articles to commit frauds. Fraudulent trading 5 is to carry a maximum 10-year sentence and is replicated by a new offence of fraudulent trading by non-corporate businesses--sole traders, partnerships, etc. The most controversial aspect of the Act might be not what it contains, but its failure to abolish the much-maligned common law offence of conspiracy to defraud. Despite cogent and sustained calls for abolition the Government refused for fear of leaving serious lacunae, but the Attorney-General will issue new guidance on its use. Background to reform The Act's immediate6 history is traceable to the Law Commission Consultation Paper No.155, Legislating the Criminal Code: Fraud and Deception, 7 its Report No.276, Fraud, 8 and the Home Office Consultation Paper, Fraud Law Reform. 9 However, pressure for reform has been mounting for years. What was wrong with deception? 10 The deception offences were notoriously technical. Although overlapping, they were overparticularised,11 creating a hazardous terrain for prosecutors who, in charging, could be tripped up by something as subtle as the fraudster's method of payment. 12 Such technicalities also had the unfortunate side-effect of encouraging unnecessary reliance on conspiracy to defraud. The interpretative difficulties were substantial. Appellate courts struggled with such fundamental issues as whether a representation could be implied 13 ; whether indifference as to the truth of a representation precluded an operative deception14 ; and whether a machine could be deceived. 15 Some 1968 Act offences proved to be such a nightmare 16 that Parliamentary repair was necessary--the Theft Act

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1978 replaced s.16(a) of the 1968 Act--but that only exacerbated matters by generating more overlapping and *Crim. L.R. 195 over-particularised offences. Similarly, following Preddy 17 the hastily-enacted Theft (Amendment) Act 1996 introduced another particularised deception offence which was acknowledged to provide a sub-optimal solution. However, Preddy produced some greater good by emphasising how incremental amendment could only ever offer repairs to tackle individual lacunae; if English law was to offer adequate protection from the growing menace of fraud, 18 a more structured and coherent package of offences was necessary to keep pace with technology and modern methods of property transfer and commercial transaction. The merits of general fraud offences The merits of general fraud offences had been debated for decades. 19 Eminent commentators doubted whether a general fraud offence could ever be drafted which did not extend potential criminal liability too far.20 These views influenced the Law Commission, and in Consultation Paper No.155 no general fraud offence was proposed. There were, however, numerous strong supporters of such reform,21 including predictably the prosecution agencies, and unsurprisingly in Report No.276, three general fraud offences lay at the heart of the attached Bill. Given that Parliament has enacted these proposals, albeit with some amendments, an abstract debate about the merits of general fraud offences although stimulating, is no longer a priority. More pressing is the need for an analysis of the new offences and their merits. The new fraud offence Section 1 introduces a new offence of fraud which can be committed in one of three ways where, in the Act's unusual language, D breaches one of the provisions in ss.2-4. 22 The concept of fraud is however not defined in the Act, 23 and there remains no universally accepted definition at common law.24 *Crim. L.R. 196 Section 2--fraud by false representation 25 Section 2 of the Act is the broadest form of the fraud offence and hence likely to be the most frequently charged. The actus reus requires only that a person made a false representation, and the mens rea is satisfied by proof that he knew the representation was or might be false, and that he acted dishonestly, with intent to gain or cause loss. Classic examples of conduct caught will be false representations on mortgage application forms, life insurance forms, etc. The offence is also designed to criminalise dishonest phishing on the internet.26 Before scrutinising individual elements, it is worth emphasising how dramatic is the shift from a resultbased deception to a conduct-based representation offence. Under the old law 27 D's conduct had to deceive V thereby causing V to do whatever act was appropriate to the charge--transferring property, executing a valuable security, etc. Under s.2, there is no need to prove a result of any kind or that an alleged victim or indeed any person believed any representation or acted on it; or, crucially, that the accused succeeded in making a gain or causing a loss by his representation. The effect is that D may be liable even though V knows that D's statement is false or V would have acted in the same way even if he had known of the falsity. 28 The new offence has no requirement that V's property interests are damaged (temporarily or permanently), 29 nor even that V's property interests are imperilled 30 ; it is sufficient that D intends to cause loss or make a gain. It is wider than conspiracy to defraud since a lone actor can be guilty without even prejudicing anyone's economic interests. 31 This wholly inchoate offence appears to criminalise lying. Should lying be a sufficient basis for criminal liability? 32 What is the wrong which D performs which warrants the criminal sanction? It is not one derived from intentionally harming V's interests directly-there need be no such harm. Similarly, it is not one of potentially damaging V's interests. The wrong seems to be the act of lying or misleading with intent to gain or cause loss; the harm might be construed as one of destabilising society's processes of property and financial transfers. 33 Even *Crim. L.R. 197 if this is sufficient to warrant criminalisation, is it properly called fraud? 34 Classic definitions such as that from Stephen J. include, even at their widest, an element of intent to deceive which is much narrower than an intention to gain. The absence of any loss direct or potential to V's interests may make the evaluation of the degree of blameworthiness and appropriate punishment very difficult. If D has typed an impressive high yield investment prospectus into his computer and emailed it, he seems to have breached s.2. What sentence is appropriate? The representation might have made millions of pounds from gullible investors, or been universally treated as irritating spam and deleted. This shift has other serious practical implications. Obviously, the offence is complete earlier--on the

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making of the representation. In some instances s.2 might also catch conduct committed later in time--if, after D, a motorist, has with honest mind filled his fuel tank and the entire proprietary interest in the petrol has passed to him, he then falsely represents to V, the cashier, that it will be paid for by D's company, he breaches s.2.35 Although the start date of offending may be more difficult to specify when drafting particulars, this is unlikely to be material in most cases. A further effect is that V, formerly cast in a leading role in proving the causal effect of D's deception now becomes an optional extra.36 With liability complete on D's representation being made, no specific victim(s) need to be identified. No doubt prosecutors will still commonly prefer to call a victim to testify about the circumstances of the representation, but technically, all that matters is that D acted with the intention to gain or cause loss; the potential effect of the false representation need not be proved. As with the deception offences it replaced, there will be overlap with theft in cases in which the false representation enables D to appropriate V's property, even if with V's consent, as in Gomez. 37 Of course, s.2 goes further by criminalising, D who lies with the intent that V lend him property which D intends to return unaltered. Making a representation. A representation must be made , expressly or impliedly (s.2.(4)). Most commonly this will be by words or conduct but as enacted, s.2 is not restricted to such behaviour. 38 This prompts the question whether silent inaction will suffice. 39 Section 3 criminalises fraud by failing to disclose, but is limited to circumstances where D is under a legal duty to disclose information; a broad reading of s.2 would not be so limited, but such an interpretation might be regarded as an undesirable extension of the criminal law. Four possibilities need considering. First, if D has made a false statement with mens rea he is guilty under s.2 irrespective of V's belief. Secondly, if he has not actively misled V, but realises that V is acting under a misconception he may be liable under s.3 if he is under a duty to correct V's error. Thirdly, if having not actively misled V, and *Crim. L.R. 198 not being under a duty to correct V's error, D could be construed as making an implied false representation, he may be liable under s.2. Fourthly, where, to D's knowledge, but not V's, circumstances have changed materially since D made a true representation, by continuing to act without correcting V's understanding D might be said to be failing to undeceive 40 by impliedly making a fresh and now false representation. If so he is liable under s.2. Since s.2 is complete when the false representation is articulated, there may also be problems in identifying how many representations have been made. Are separate counts required for each representation? The broad nature of this element means that the scope for a charge of attempt is severely limited, except perhaps where D, having prepared documents containing false statements, is apprehended before having posted them, or where D unwittingly makes a true represenation. With substantive offences this wide, who needs inchoates? A false representation. The requirement that D's representation is false does little to limit the scope of s.2. Section 2(2)(a) provides that a representation is false by being either untrue , or misleading , and by subs.(3) any representation as to fact or law, including a representation as to the state of mind of--(a) the person making the representation, or (b) any other person will suffice. The Crown must establish that the representation is false or misleading in addition to proving D's knowledge as to its falsity. Falsity usually depends on the meaning intended or understood by the parties, and will usually be a question for the jury, even with documented representations. Exceptionally it may be for the judge to decide, as for example where the issue is as to a document's legal effect.41 The concept of falsity is central to s.2, yet remains ill-defined, highlighting a recurring problem with the Act: Parliament was unwilling to define elements of the offences, being happy to acknowledge the (predictably) broad Home Office suggestions and leave matters to be resolved by the courts. This fails to promote certainty in an area where experience teaches us that it is vital. In this instance, the Home Office suggested that the term misleading meant less than wholly true and capable of an interpretation to the detriment of the victim. 42 That opens an astonishingly wide scope of liability. By advancing a very wide definition of false , to include misleading , the Home Office eschews the finer moral distinctions between lying (making untrue statements) and misleading (including making true statements which create a false impression). 43 It is unclear whether the full practical implications have been realised. If less than wholly true statements are caught, have trade puffs become criminal? Does s.2 criminalise street traders' repartee? The only defence to making false representations by selling a T-shirt just like the one Beckham wears may be a lack of dishonesty. Such arguments may sometimes be difficult to sustain in a courtroom remote in time and atmosphere from the theatre of a street market. 44 If D's representation is untrue, D's claim that it was made for good reason, e.g. *Crim. L.R. 199 to recover property which (D believed) belonged to him, turns on the question of dishonesty. That element of the offence, which is left to shoulder so much of the burden of determining criminality, is also D's only safeguard where the falsity represented relates to a non-material particular.45 Beware the second-hand car salesman who habitually embellishes a series

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of honest statements as to the age, mileage, etc. of vehicles with the false and proverbial li(n)e one careful lady owner. 46 To what extent have we criminalised sharp practice--particularly bearing in mind that there need be no loss, nor imperilling of anyone's economic interests? If everything turns on the jury's perception of honesty, will stereotypically mistrusted trades and professions--estate agents, antique dealers, car salesmen--be exposed to conviction on prejudices? 47 Unless s.2 can be interpreted cautiously, it will trample on the principle of caveat emptor. 48 We ought not to indict one man for making a fool of another . 49 For these reasons and the difficulties identified below, this commentator cannot give s.2 the unequivocal welcome extended by other commentators,50 nor agree that it will be free of difficulty in application, 51 and certainly cannot subscribe to the view of the Home Office that the law is not being widened in any significant way. 52 False representations and machines. In Re Holmes, 53 the court accepted, with regret, the generally held view54 that it is not possible to deceive a machine, and encouraged the introduction of a new offence. Although charges under the old law were available in some circumstances--e.g. theft if property was obtained--these were strained and failed accurely to reflect D's criminality. Where a wholly-automated process provided a service, there could be no conviction for a deception offence. The problem of criminalising the deception of a machine became more acute as businesses relied increasingly on automated facilities for payment by telephone or via the internet. The problem was not restricted to the consumer context: in *Crim. L.R. 200 Holmes, D was alleged to have transferred huge sums from a German to Dutch bank by an entirely automated process. Section 2 is capable of meeting some of these difficulties and, coupled with the offence in s.11 of the 2006 Act (below), should offer adequate protection against electronic frauds. However, in a striking example of the Home Office advancing the broadest possible form of offence, an additional subsection was added during the Parliamentary process. Subsection (5) provides: a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention). According to the Explanatory Notes, it is designed to remove any doubt that: fraud can be committed where a person makes a representation to a machine and a response can be produced without any need for human involvement [e.g. by use of] a CHIP and PIN machine. 55 Its intent is clear, its necessity is debatable; 56 and again, it fails to anticipate practical ramifications. D who types his false representation into a computer proposing to send it to V later fulfils this element of the offence even though he has yet to send the document. He has submitted it in a form to a device designed to receive etc. Subsection (5) means that the offence is committed much earlier in time, at a stage when it would not ordinarily be said that D had represented anything to anyone--the representation arises even before it is released from D's exclusive control. Is D saved by a lack of intention to gain/cause loss by that representation? Or is even that escape route blocked since D does intend to gain by that representation eventually? Dishonesty. Dishonesty is the central mens rea for all three forms of fraud. The Law Commission and Home Office intend that the Ghosh 57 definition should apply, and the Law Officers confirmed this in Parliament.58 The powerful criticisms of Ghosh 59 need no repetition, but several issues do merit attention. Given the breadth of definition of other key elements of the offences, dishonesty will be the principal determinant of criminal liability. Dishonesty is based solely on Ghosh ; as with deception there is no equivalent to s.2 of the 1968 Act and therefore, D's claims to be acting under a claim of right are no guarantee of acquittal. It is submitted that this is a fundamental flaw with the section. If D (genuinely believes he) has a claim of right to the property there should be no criminal liability. 60 A fortiori, it seems that D qualifying his false representations with a disclaimer will not automatically *Crim. L.R. 201 lead to acquittal unless the qualification is judged sufficient to remove any degree of falsity. Reliance on Ghosh also increases the chances that more cases will go to trial as defendants have little to lose by trying their luck with a jury. In terms of principle, a lack of certainty in the substantive law and inefficiency in the criminal justice system render this undesirable. There is also a sting in the tail: in some cases there may soon be no jury on which D can chance his luck. The Government has introduced the Fraud (Trials without a Jury) Bill 2006, which will allow for trial by High Court judge alone (cl.2(1)).61 Because dishonesty is left to the jury to define, it has been suggested that Ghosh may fall foul of Art.7 of the European Convention on Human Rights ( ECHR ), which proscribes retrospective

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criminalisation. Such anxieties led the Law Commission in Consultation Paper No.155 to doubt the compatibility of a general fraud offence. 62 In Report No.276, the Commission adhered to the view that an offence dependent wholly on dishonesty would not be compatible, but concluded that its proposed offences were not so dependent. Given the breadth of the other elements as enacted, the degree of dependence on dishonesty is a nice question. Nevertheless, the ECHR compatibility of the Act has been confirmed by the Home Secretary and the Attorney-General, drawing support from the Joint Parliamentary Committee on Human Rights Fourteenth Report 63 which concluded that: the new general offence of fraud is not a general dishonesty offence. Rather, it embeds as an element in the definition of the offence some identifiable morally dubious conduct to which the test of dishonesty may be applied 64 But, it is submitted that this is unconvincing. The morally dubious conduct in question is making a false representation--i.e. lying, which might also be fairly described as being dishonest --and that is the additional element which the committee regards as preventing s.2 being one solely of dishonesty! Ironically, the committee confirmed that a: general dishonesty offence would be incompatible with the common law principle of legality, [and] in breach of the requirement of legal certainty in Articles 5 and 7 ECHR. 65 For this reason it doubted the compatibility of conspiracy to defraud. Finally on dishonesty, it is submitted that all this criticism is not academic hyperbole, but has real practical significance: at trial the lack of definition increases the risk that a defendant will be convicted on prejudices and irrelevancies, and the appellate courts are renowned for treating as safe any conviction in which a jury has found dishonesty.66 In short, as Professor Ashworth explains Ghosh : *Crim. L.R. 202 opens the way to retrospective standard setting which derogates from the rule of law because D did not have the opportunity to adjust his conduct to the standard. 67 Knowing that the representation is or might be false. In addition to being dishonest, whatever that may mean, D must know either: that his representation is untrue or misleading; or that it might be untrue or misleading. Knowledge is a more onerous mens rea than belief and even recklessness .68 Least difficult to establish, will be knowledge of the falsity of representations about existing facts. This will commonly be proved by inference. Greater difficulty lies in proving D knew that present statements about future events were untrue or misleading. This problem was anticipated and the alternative mens rea-- that D knew that the representation might be false--seeks to avoid the problem. Proving that D knew that the representation might be untrue or misleading is also a more obvious route for the Crown when the allegation involves representations as to states of mind of those other than the accused; although D cannot easily be shown to know the state of another's mind, he may be shown to know what it might be. Is the section rendered wider than anticipated by this alternative mens rea ? D tells a customer that he has a Renoir for sale. D knows that there is a risk, as with all art, that the painting might be a fake. Does D know that the statement might be misleading? He will only be guilty if the painting is not in fact a Renoir (he has to make a false statement), and he was dishonest. The element of dishonesty once again serves as the principal determinant of guilt. 69 Interestingly, the Attorney-General had no difficulty with this example in Parliament:70 If an art dealer said, This is a painting by Renoir , knowing that that statement can have a huge impact on the value of the painting--but not knowing whether it is true and thinking that it might be untrue--it would be for a jury to decide whether he was dishonest. If he was dishonest, I see no difficulty in saying that he is guilty of fraud in those circumstances. 71 Is this an oversimplification? The Attorney-General treats as synonymous thinking that a statement might be untrue or misleading 72 and knowing that it might be untrue or misleading. Is there a difference between these degrees of D's cognisance or mental state sufficient to render him blameworthy? In this context it might be a distinction without a difference. It seems inevitable that in practice this mens rea element will blur unsatisfactorily into the element of dishonesty. A dealer who, while accepting that nothing can be certain in the art world, believes that his attribution in respect of this painting is true, acts honestly. The dealer who actually thinks it might be untrue, acts dishonestly. The courts need to be alert to guard against reckless representations being treated as sufficient dishonest acts when the *Crim. L.R. 203 section actually requires both dishonesty and knowledge. Perhaps the best that can be said is that at least both the mens rea requirements remain subjective.73 The breadth of this fault element may extend even further if the courts demonstrate their customary willingness74 to interpret knowledge as including shutting one's eyes to an obvious means of knowledge or deliberately refraining from making inquiries the results of which the person does not

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care to have. 75 A precise definition of wilful blindness or connivance as it is sometimes known 76 remains elusive, and could extend liability significantly in this context. With intent to gain or cause loss. At face value, this is again a strict mens rea requirement. Intention as to consequences has to be proved. How remote can D's intentions be? Suppose that D makes false representations to induce V, a wealthy banker, to marry him. Is he guilty under s.2 if one intention is to enrich himself? Intention should bear its ordinary meaning, and as elsewhere in the criminal law include foresight of a virtually certain consequence. 77 In most cases V's loss will be D's gain, but the phrase, intent to cause loss is not superfluous as there may be circumstances in which D intends to cause a loss to V without any corresponding gain for himself. 78 Again one might ask whether this is properly described as fraud. No gain or loss need actually occur, indeed, as noted no property of any person need actually be put in jeopardy by D's acts. D who starts a false rumour that his competitor V is going out of business, commits the offence if he does so with intent to lead customers away from V (and or to D) and is regarded as dishonest in doing so. 79 Although not a result-based offence, there is a causal link that must be established: it is by the false representation that D must intend to make the gain or cause the loss. What of the sophisticated fraudster who admits making the false representation but says that his only intent was to gain by subsequent dealings/trade and that the lie was not intended to cause gain/loss? Section 5 defines gain and loss for the purposes of ss.2-4, in essentially the same terms as s.34(2)(a) of the Theft Act 1968. 80 Thus, the offences extend only to (temporary or permanent) gain or loss in money or other property; and property means any property whether real or personal (including things in action and other intangible property) . Gain includes a gain by keeping what one has, as well as a gain by getting what one does not have. Loss includes a loss by not getting what one might get, as well as a loss by parting with what one has. The Government was keen to ensure that the definitions paralleled those in the Theft Act 1968. 81 *Crim. L.R. 204 Arguably, adopting this definition renders the offence unduly wide by criminalising D who intends V not to get something which V might have gained, even though V was not entitled to it. Taking one of Professor Sullivan's early examples, if V asks D for a loan and D denies it him by saying falsely that he has no money to spare, D has made a false representation with intent to cause V to lose that which he might have obtained. 82 V has at most suffered a loss of a chance. However, there may be a neat way around this: D might avoid liability by arguing that a simple refusal, however malicious or dishonest is not a representation , and rather it is the explanation for his refusal which is false, and it is not by the explanation-- I have no money that D intended to cause loss. D's additional/alternative saving grace is that he is probably not going to be regarded as dishonest in those circumstances.83 But, it is not an automatic defence that D believes he has a right to the gain he seeks/the loss he intends to cause. If he has such a belief, then he might not be dishonest under Ghosh. It could be argued that there is in fact no gain or loss where a person merely secures the repayment of that which he is owed. But the courts have held that if gain in money or other property means simply acquisition , and D must still be caught.84 (b) Section 3--fraud by failing to disclose Section 3 introduces a less controversial form of fraud. D is liable if he dishonestly fails to disclose information, which he is under a legal duty to disclose, and intends by failing to disclose the information to make a gain for himself or another, or to cause loss to another or to expose another to a risk of loss. Clearly, s.3 is much narrower than s.2. Arguably, all cases in which there is a legal duty to disclose might be regarded as capable of prosecution under s.2 as false implied representations. 85 Even if the position is not this extreme, there will be considerable overlap, but in some cases there will be obvious advantages in presenting the case under s.3 to focus the jury's attention on the existence of the duty rather than straining to persuade them of a relevant representation. Some limited assistance in interpretation was offered during debates, when the Attorney-General accepted that there are occasions when: something that most of us naturally might think of as a non-disclosure is transformed by a fiction of the law into an implicit misrepresentation. But it is a fiction; it is not how people think about it. People will frequently say, I was not misled because I understand that he was implicitly making this representation to me. He just did not disclose something; he was dishonest in not disclosing it; and the purpose of that was to make a gain or to do something else. One can think of many other examples where that would be the true basis on which a charge would be laid. 86 *Crim. L.R. 205 Many of the elements of this section need no further elucidation. The discussion of dishonesty and intention to gain or cause loss above applies equally here. The core of this section is the legal duty to disclose information, and that poses problems not only because of its breadth, 87 but

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because of the obligation it may force on the criminal courts, including the magistrates' courts, to tackle complex issues of civil law. Perhaps optimistically, the Home Office regarded the question of duty as relatively uncomplicated .88 Legal duty to disclose. Section 3 contains no guidance on what constitutes a sufficient legal duty to trigger liability. The duty is a general one--the section is not limited to cases in which D is under a duty to disclose to the particular individual to whom he is alleged not to have disclosed. Since the trigger is a legal duty, the question must be one of law for the judge, with the jury being directed to conclude that if they find certain facts [as identified by the judge] proved they can conclude that in law there is a duty to disclose information. Several Peers expressed doubts as to whether judges would struggle in explaining this issue to the jury.89 The element was however endorsed by the Rose Committee . 90 The views of that committee, being chaired by the eminent Rose L.J., deserve high regard, but it was never clear what its terms of reference or formal status might be. For assistance in interpreting the concept of legal duty , we must turn to the Law Commission's Report, which concluded that91 : Such a duty may derive from statute (such as the provisions governing company prospectuses), from the fact that the transaction in question is one of the utmost good faith (such as a contract of insurance), from the express or implied terms of a contract, from the custom of a particular trade or market, or from the existence of a fiduciary relationship between the parties (such as that of agent and principal). For this purpose there is a legal duty to disclose information not only if the defendant's failure to disclose it gives the victim a cause of action for damages, but also if the law gives the victim a right to set aside any change in his or her legal position to which he or she may consent as a result of the non-disclosure. For example, a person in a fiduciary position has a duty to disclose material information when entering into a contract with his or her beneficiary, in the sense that a failure to make such disclosure will entitle the beneficiary to rescind the contract and to reclaim any property transferred under it. 92 The scope of this section is therefore bound by the limits of the civil law. The Attorney-General confirmed this: *Crim. L.R. 206 the Government believe that it would be undesirable to create [a] disparity between the criminal and the civil law; it should not be criminal to withhold information which you are entitled to withhold under civil law. 93 This raises interesting questions about the coherence of English law's approach in dishonesty offences. In contrast to the new s.3 section the House of Lords 94 has controversially cast off the offence of theft to float free from its civil law moorings, 95 allowing for convictions where the property transfer has been consensual. Arguably there is no incoherence because in theft there must actually be a transfer: V must have lost property and D must have intended the loss to be permanent whereas, in s.3 there need be no loss or gain, the wrongdoing is complete on D's failure to disclose. It might be contended that there is a greater need for the criminal law to be securely anchored to the civil law in the case of fraud than in the case of theft because fraud offences lack the need for tangible harm to property rights, and liability turns on little more than dishonest intentions. However, even this is not a complete answer to the problem since it is clear that civil law concepts underpin all these dishonesty offences, and the failure to accept the consequences of that fact in theft remains unsatisfactory. Leaving aside these principled questions, in practice, it is unclear whether s.3 will prove workable. Which will be worse: the criminal courts shunning the civil law, as they are wont to do, 96 leaving these offences lacking in solid foundation or, becoming unduly burdened by the complexity of civil law questions, particularly as to some of the less explicit duties such as the expectations in a particular trade or custom?97 Added to the task of identifying the relevant duty, and determining its scope, is the complexity of deciding whether D has complied with the duty: a further civil law question. Unless the Crown can show that D has not fully complied, there may be difficulties. Where the dispute is whether D's partial disclosure of the relevant information 98 is sufficient, is this a matter of law for the judge, or for the jury? Where D claims that he believes he has complied with the duty, the matter becomes subsumed within the question of dishonesty. There is also the possibility of D claiming that he was unaware of his duty. Despite the Law Commssion's intentions, the statute appears to create strict liabiity as to the existence of the duty, *Crim. L.R. 207 and a general plea of a lack of dishonesty will have to embrace such denials of awareness. Section 4--fraud by abuse of position This provision met with considerable opposition in Parliament, being described as woolly 99 and a catch all provision that will be a nightmare of judicial interpretation and help bring the law into

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disrepute. 100 A person commits fraud under s.4 if he occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person, and dishonestly abuses that position whether by act or omission, 101 intending, by abuse of that position, to make a gain or cause loss. Again, the comments above on elements of dishonesty and intention to gain or cause loss are applicable here.102 Other elements deserve closer scrutiny: what is a position of financial trust? When is a person expected to hold that position? What constitutes abuse of such a position? A position . Liability arises only where D occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person. The most obvious interpretation of this element would be to treat it as synonymous with a requirement that D owed a fiduciary duty to the other. That would have involved the criminal courts in yet more close analysis of complex civil law questions, but it would have secured certainty and ensured coherence between the civil and criminal law. Unfortunately, the Government rejected this logical interpretation, being persuaded by arguments that the definition of fiduciary duty would be unduly technical and would restrict the scope of the offence.103 It preferred to allow s.4 to extend the criminal law into more ambiguous territory. The search for further guidance on the interpretation of s 4, takes us once again to the Law Commission's discussion, where it envisaged that: The necessary relationship will be present between trustee and beneficiary, director and company, professional person and client, agent and principal, employee and employer, or between partners. It may arise otherwise, for example within a family, or in the context of voluntary work, or in any context where the parties are not at arm's length. 104 This offers a very broad and ill-defined scope of liability. The Home Office gave examples of relevant positions including those where D is given access to V's premises, equipment, records or customers.105 These give no meaningful guidance *Crim. L.R. 208 on any limits of this serious offence.106 The only other advice was that the offence applies wherever V has voluntarily put D in such a position.107 In the more obvious situations in which s.4 might be relied on, the existence of the duty will present no problem: D's civil law duties will saddle him with liability. Even in these cases, there may be practical problems with the criminal courts identifying with precision the duty, and its terms. This may pose further questions as to the functions of judge and jury (while we still have one). If the scope of liability under s.4 had been restricted to cases of fiduciary duty, there would have been a strong argument for saying that the judge must determine whether D's position is within s.4 and to direct the jury as to what evidence of that they must find in order to convict. However, since a fiduciary duty will be a sufficient but not a necessary basis for liability, it is more questionable who has responsibility for determining D's status. The Law Commission clearly thought that whether the particular facts alleged can properly be described as giving rise to that relationship will be an issue capable of being ruled upon by the judge and, if the case goes to the jury, of being the subject of directions. 108 The interpretative difficulties are exacerbated because in some cases, particularly those where there is no formal fiduciary duty, D's status will depend heavily on whether he is expected to safeguard financial interests.109 The Act sheds no light on whose expectation counts. 110 If it is the potential victim's this could be a very wide scope of liability subject to D denying liability by way of a lack of dishonesty. If it is a test based on what D thinks his financial duties are, it might be very limited and difficult to prove. Should there be a compromise interpretation that the expectation is one that a reasonable person would hold? Even adopting that objective stance, the offence will remain ill defined and prone to producing inconsistency.111 Abuse. The term abuse is deliberately left undefined to maximise the breadth of the offence. 112 Coupled with the absence of definition of the potential qualifying positions the section is extremely wide. If the positions of financial responsibility were restricted to fiduciary duty cases the issue of abuse would be resolved by asking simply whether D had breached the duty imposed. Although the abuse must be of the position , if D holds a position of financial responsibility towards X, but acts with intent to cause loss to V by the abuse of his position vis--vis X this appears to constitute the offence. There is no other restriction on what form D's actions must take in order to constitute an abuse . The Law Commission's original proposal required secrecy *Crim. L.R. 209 in D's actions, 113 which would have added a further actus reus hurdle for the Crown to surmount, but the Home Office removed this element, despite its widespread approval, on the grounds that it was difficult to define and created unnecessary complication.114 Even if it no longer forms an element of the fraud, secrecy will in some cases remain an important evidential matter.

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Likely defendants? The range of potential defendants is vast. Section 4 catches secret profiteers from the waiter who sells his bottle of wine, passing it off as one from the restaurant, 115 to the director who makes a personal fortune by secretly trading company stock in breach of his fiduciary duty. In the case of the latter, at least the section brings some clarity because the common law had become extremely confused, with Tarling 116 holding that the failure to disclose a profit did not constitute a conspiracy to defraud, but Adams, 117 seemingly going further held that the director had been correctly convicted when making secret profits, perhaps because in that case they had been actively concealed. Other possibilities include the potential for this section to prevent frauds involving wills: the Government hopes charities will benefit by 2-3 million per annum by a reduction in legacy fraud. 118 Those who breach confidentiality agreements with employers might also be at risk. 119 Employee D of X Ltd will be caught by passing up an opportunity to seal a lucrative contract so that his friend E, working for Y Ltd can take advantage. Beyond that the scope of the section lies in the hands of those defining the qualifying position . What of an employee who persistently arrives late for work--he occupies a position in which he is expected not to act against, the financial interests of the employer, and, abuses that position intending thereby to make a gain. Subject to a finding of dishonesty, he may be guilty. Is it sufficient that D causes V to lose merely a chance of profit? Unless kept within sensible limits, the section has the potential to elevate all sorts of trivial contractual and familial disputes into criminal matters. One potential use of the section which was not given wider consideration is the prosecution of public officials for mismanagement of public funds. Such individuals are often in a position in which they are expected to safeguard or not to act against the financial interests of another person (i.e. the public or the Crown), and the offence would seem so much easier to prove than misconduct in public office. 120 *Crim. L.R. 210 The possession/supply offences Section 6--possession, etc. of articles for use in frauds Rapid developments in information technology, the prevalence of the personal computer and the impact these developments have on the ease with which a fraud can be committed from any venue, including the home, presented problems. A new offence was desirable, and the Law Commission proposed adding fraud to the offences caught by going equipped under s.25 of the Theft Act 1968121 but the Home Office adapted that proposal to create a much harsher offence. 122 Section 6 provides, in full: a person is guilty of an offence if he has in his possession or under his control any article for use in the course of or in connection with any fraud. The offence carries a five-year maximum sentence on indictment. The link to s.25 is tenuous at best because the two significant restrictions on s.25 are absent: the offence can be committed by possession in D's abode, and there is no requirement that D has set out to commit the specified wrong. Leaving aside the question of its parentage, the offence is ill-defined and will need plenty of work to prevent gross over-criminalisation. Article . The Act further defines article in s.8, which provides that article includes any program or data held in electronic form. 123 Credit-card cloning software was a specific target, but since s.6 is not restricted to software designed or adapted for committing fraud, any word processing programme will also be caught. Computers, laptops, mobile phones, printers, scanners, faxes, pens, paper, decks of marked cards, etc. are all articles for these purposes. Possession. The difficulties of defining this concept in criminal law need no elaboration here. Any article in D's possession whether at home, in public or at work is capable of satisfying this element of the offence. In this context the term clearly extends to D's possession of material on his own computer. What if he has deleted the software? Is he still in possession? 124 Does the employer possess the software on his employee's machine? Or the parent that on his errant teenage son's? Does there need to be a degree of mens rea ? Surely the answer should be that D must know he had the article in his possession. Arguably D must also know or comprehend its nature. But what if he knows of the existence of the software that he possesses, but not its function? Presumably he is still in possession, a position akin to the container cases in drugs law, but is not guilty because he lacks the requisite intent (below). Or control . On one view, possession is intended to mean merely having custody of the article and therefore the word or does not extend the meaning of *Crim. L.R. 211 possession, but signifies that under his control is a discrete, alternative, element. On another view, the inclusion of

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this expression is obviously designed to extend further the scope of the offence. The distinction from the type of wrongdoing caught as going equipped is stark. With s.25, the restriction on D having with him the article brings with it an element of proximity to offending, but that element is lacking with a requirement only that D has it under his control . Again it is unclear whether D must have knowledge that the article is under his control? Although article extends to electronic data, surely D does not control something if it is available instantly on the internet via his computer, but which he has yet to download? for use in the course of or in connection with any fraud . The form of words is similar to that in going equipped. It is extremely wide: there is no restriction on when the article might be used or what the words in connection with mean. Moreover, the requirement that the use is in connection with any fraud suggests that it is not limited to those fraud offences created under the Act: conspiracy to defraud is presumably caught, but which other dishonesty offences? Courts should be encouraged to follow the Home Office refusal to interpret it as including possession of articles for use in theft. 125 Nor is it clear whether the use must be as principal or as an accessory or conspirator. Logically, the use must relate to future use, although past illicit use may be evidence of a current intention as to future use. No defence of lawful excuse or lawful authority is provided for investigative agencies possessing such materials.126 Mens rea. No mens rea is stated in the offence. At face value, knowing possession of a pen or paper would render a person liable for this offence. It is lamentable that despite sustained requests for the Government to introduce a single line amendment--that the offence requires D to act with intention that the article be used in fraud--the Government stubbornly refused to do so. This is all the more astonishing because its reason for refusing was the anticipation that the courts would read in precisely such an element of mens rea as they did in going equipped. The Attorney-General 127 and Solicitor-General128 confirmed that the offence was not one of strict liability. 129 The position is that the whole population is in possession of articles which might be used for fraud and we must all hope that the courts will do the sensible thing and insist on proof of a general intention as the Home Office Explanatory Notes suggests. 130 Although the courts are naturally cautious in interpreting statutes by using analogous language from a different Act, particularly where the surrounding words are not identical, they must be forcefully encouraged to follow the Court of Appeal in Ellames 131 : In our view, to establish an offence under s 25(1) the prosecution must prove that the defendant was in possession of the article, and intended the article to be *Crim. L.R. 212 used in the course of or in connection with some future [relevant offence]. But it is not necessary to prove that he intended it to be used in the course of or in connection with any specific [relevant offence]; it is enough to prove a general intention to use it for some [relevant offence] Nor, in our view, is it necessary to prove that the defendant intended to use it himself; it will be enough to prove that he had it with him with the intention that it should be used by someone else. (at [25]. Emphasis added.) Even with such an element, the offence remains remarkably broad. Section 7--making adapting, supplying or offering to supply any article Less controversially, s.7 creates an offence of making, adapting, supplying or offering to supply any article knowing that it is designed or adapted for use in the course of or in connection with fraud, or intending it to be used to commit, or assist in the commission of, fraud. This carries a maximum 10 years on indictment. It has a far greater reach than the single rather outdated example offered in the Home Office Explanatory Notes of manufacturing devices to cause electricity meters to under-record use. Section 7 will catch software manufacturers producing programmes such as creditmaster IV and others designed solely for criminal purposes, and provides a valuable general offence to supplement the numerous specific crimes recently implemented to tackle this type of behaviour, e.g. possessing or supplying apparatus for dishonest obtaining of telecommunications service. 132 The offence has obvious advantages over charges that might otherwise be brought to combat such conduct, in particular it allows for prosecution of a lone actor, which a statutory conspiracy to commit fraud or conspiracy to defraud would not. Similarly, the offence is preferable to charges of aiding and abetting use of such devices, which would require proof that the fraud-related offence was perpetrated. The problems posed by Hollinshead are resolved.133 The elements of the offence are not novel and interpretation is likely to rely on similar expressions found elsewhere in the criminal law. Given that we are dealing with the supply of articles for illegal purposes, it is unlikely that the courts will take a restrictive or unduly technical approach to the terms. As far as the actus reus is concerned, it is unclear whether s.7 extends beyond those articles

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designed/adapted exclusively for crime, i.e. which have no other purpose than a criminal one. A pack of cards that has been marked might be used for a magic trick or to deceive someone in a fraud. Where similar forms of offence occur elsewhere in the criminal law, Parliament has made clear that the making, etc. is criminalised if the article can be used in the prohibited manner whether by itself or in combination with another article or other articles ,134 but no such extension appears in s.7. As for mens rea, the Crown has two alternatives. The first is that D knows that the article is designed for use in the course of or in connection with fraud. The knowledge must exist at the time of the making, adapting, supply or offer to supply; *Crim. L.R. 213 subsequent knowledge is insufficient. The second is that D intends that they will be so used. 135 Intention here will presumably include not only direct intention in the sense of purpose, but also an oblique intention where D foresees the use of the article for fraud as virtually certain. The section does not require an intention that the person who is the maker, adapter or supplier use the item for a fraudulent purpose himself: what is required is that the article will be so used. That intention will therefore embrace the supply of an item which D knows will be used for or to assist in fraud undertaken by the recipient or another person. Intention is arguably a narrower form of the offence. The intention must be that the article be used to commit, or assist in the commission of fraud , whereas knowledge can be that the article is designed or adapted for use in the course of or in connection with fraud . The expression for use in the course of or in connection with the fraud is omitted in relation to intention, and arguably restricts that form of the offence: articles used only preparatory to the commission of the fraud or after the commission of the fraud may be articles connected with fraud, but are not articles used to commit the offence or assist in its commission. Section 11--obtaining services dishonestly Section 11 is a welcome replacement for obtaining services by deception in s.1 of the Theft Act 1978. As noted above, it was increasingly apparent that the Theft Acts failed to protect against the obtaining of services via wholly automated processes. The Law Commission's proposal, endorsed by the Home Office, was to remove the troublesome deception element and to place the emphasis solely on dishonesty. In many respects s.11 is drafted in similar terms to the 1978 Act offence, but some awkward aspects have been removed--for example, the tricky question of whether a benefit has been conferred by the service no longer arises. The actus reus under s.11 comprises D acting, for himself or another, so as to obtain services for which payment is or will become due and for which he fails to pay in whole or in part. The mens rea requires proof of D knowing that the services are to be paid for or knowing that they might have to be paid for, and acting with a dishonest intent to avoid payment in whole or in part. On indictment, it carries a maximum five136 years. According to the Law Commission the offence would be more analogous to theft than to deception, because it could be committed by helping oneself to the service rather than dishonestly inducing another person to provide it. 137 Drafted with the problem of electronic deception in mind, s.11 criminalises the dishonest obtaining of rail travel, theatre seats, etc. where D secures those services by wholly automated processes over the internet or by telephone touchpad. The offence also catches D who attaches an illicit decoder to his television to watch satellite channels for which he has no intention of paying. 138 It was suggested that *Crim. L.R. 214 it would also catch illegally downloading music, and this may well be another situation in which the Act has repercussions that were not fully examined. 139 In addition to the automated obtainings, s.11 catches the more mundane cases of D scaling a wall into a football ground to watch without paying the entrance fee--such a person is not deceiving the provider of the service directly, but is obtaining a service which is provided on the basis that people will pay for it. 140 Several restrictions on this offence are significant. First, unlike ss.2-4, this offence does require D to obtain something--a service; it is a result offence. A causal element remains: D's dishonest act must be the cause of the service being obtained. In addition, the offence is only committed where D has failed to pay in whole or in part. It will not catch DD, parents of X, who lie about their religion in order to get X into a private faith school where they will be charged and pay the full fees. They will pay the fees, and thus do not commit the s.11 offence. They may be liable under the s.2 offence of course, but their liability will turn on whether there is an intention to cause loss and on their dishonesty. Secondly, the concept of services is limited to those for which payment is required. As under the old law, an application for a bank account or credit card will only be caught by this offence if the service is to be paid for: Sofroniou. 141 Thirdly, it is not possible to commit the offence by omission: D who sits on a train and does not alight when he hears an announcement that anyone who has not paid for the next trip should alight seemingly does not commit this offence. 142 This is unlikely to present a problem in practice since D's continued presence is a representation that he will pay for the next journey, and

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he therefore commits the offence under s.2. Dishonesty aside, the mens rea is also relatively narrow. The Crown must prove that D knows that the services are to be paid for or knows that they might have to be paid for. Arguably, the offence is wider than necessary in including cases where D only knows that payment might have to be made, but, if D knows that it might be so, the onus is surely on him to make enquiries before he engages the services, and not to act dishonestly? The offence is narrower than s.1 of the 1978 Act because of an important requirement that D acts with intent to avoid payment in whole or in part. In many cases where D has made a false representation to obtain services, he will commit the s.2 offence and his claim that he was intending to pay may well be irrelevant unless it is sufficiently plausible to negative his intent to cause loss or dishonesty. Other important provisions Fraudulent trading Section 9 creates an offence for a person knowingly to be a party to the carrying on of fraudulent business where the business is not carried on by a company. This extension was recommended by the Law Commission in its Report *Crim. L.R. 215 on Multiple Offending.143 The scope of those caught is defined in a rather odd negative fashion--all those businesses not caught by the extremely wide s.993 of the Companies Act 1985. Non-corporate traders covered by the new offence include sole traders, partnerships, trusts, companies registered overseas, etc. In all important respects this offence parallels s.993 of the Companies Act 1985. 144 The maximum sentence for the offence is 10 years, as now is the sentence for fraudulent trading under s.458 145 following the recommendation of the Company Law Review, Final Report: Modern Company Law for a Competitive Economy. 146 A desire for legislative coherence might have led to these offences being restated and inserted within the Fraud Act where they belong. Corporate officers Corporate officers who are party to the commission of an offence by their body corporate under the 2006 Act may be personally liable under s.12 which echoes the effect of s.18 of the Theft Act 1968. The offence applies to directors, managers, secretaries and other similar officers of a company. 147 Jurisdiction The question of extraterritoriality was raised by the Home Office in its Consultation Paper. Despite a majority of respondents arguing for the UK courts to have nationality jurisdiction the Government decided not to step so far. Where D commits the entire Fraud Act offence within England and Wales, no problem arises. Where, however, D, e.g. makes a representation abroad, but intends to make a gain which will occur in England and Wales or cause a loss in this jurisdiction, the 1993 Act (as amended by the 2006 Act) will apply so that a charge under s.2 will lie, but only if there is an actual gain or loss within England and Wales. The 1993 Act provides that if any act or omission proof of which is required for conviction of a relevant crime--a relevant event --takes place in the United Kingdom, it will be capable of prosecution in England and Wales. Schedule 1 to the 2006 Act amends the 1993 Act to extend the meaning of relevant event to include- (a) if the fraud involved an intention to make a gain and the gain occurred, that occurrence; and (b) if the fraud involved an intention to cause a loss or to expose another to a risk of loss and the loss occurred, that occurrence. The Act could have extended the meaning of relevant event to include the making of the false representation with intent rather than the result (given that these are now conduct crimes), but curiously 148 did not do so. Section 13 Section 13 amends the scope of the privilege against self-incrimination in civil law proceedings. By s.31 of the Theft Act 1968 that privilege could not be invoked *Crim. L.R. 216 in relation to Theft Act offences, but this was problematical since it allowed D to invoke the privilege in civil disputes where the allegations might include conspiracy to defraud. The scope of the privilege now protects D from incriminating himself or his spouse or civil partner for the purposes of offences under the Act and related offences which are perhaps left too ambiguously defined in s.13(4) as conspiracy to defraud and any other offence involving any form or fraudulent conduct or purpose. 149 Conspiracy to defraud 150

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Last but not least there is the perennial problem of whether to abolish conspiracy to defraud. Many thought that the offence was finally destined for abolition after the Law Commission, 151 echoing decades of academic criticism, described its continued existence as an indefensible anomaly . 152 The breadth of the offences in the Act fuelled the calls for abolition from academic and judicial commentators, and recently by Liberty, Customs and Excise and by Law Lords in the course of debates in the House of Lords153 : during the parliamentary debates, conspiracy to defraud was described as repellent ,154 constitutionally defective155 and as so broad that it risk[ed] bringing the law into disrepute. 156 Despite the strength of support for abolition, the Government refused to budge. The principal argument for retention was the purely pragmatic one that abolition might leave an unforeseen lacuna in the law. The Government drew support for this argument from the conclusion of the Rose Committee . Although its report has not been published, the Attorney-General quoted its conclusion that: It would be risky to repeal common law conspiracy to defraud as it can be the most effective charge in a case where multiple defendants are engaged in a fraudulent course of conduct. There are limitations on the law of statutory conspiracy, which has had something of a chequered history. All the judges present at the meeting agreed the Bill should not repeal common law conspiracy to defraud. 157 It is notable that judges of even greater seniority, in the form of former Law Lords present during the passage of the Bill, were explicit in calling for its abolition. Lord Lloyd of Berwick, for example, stated that: I have an instinctive dislike, and *Crim. L.R. 217 I think that many judges have, of these catchall offences such as conspiracy to defraud. Moreover, no matter which side of the argument marshalled the more eminent supporters, the argument itself is not compelling. As the Law Commission recognised: to retain conspiracy to defraud on the ground that it might occasionally prove useful in such a case would in our view be an excess of caution. 158 Other supporters identified by the Government predictably included some prosecution agencies, whose main concern was that abolition would affect the ability to prosecute multiple offences and the largest and most serious cases of fraud. Again the argument is not compelling. As for the multiple offences problem, s.17 of the Domestic Violence Crime and Victims Act 2004 provides a solution, and it was only the Government's tardiness, in the face of repeated requests for implementation from the Court of Appeal159 and the House of Lords,160 which delayed this solution. The Attorney-General's further pragmatic plea was that there would be some instances in which the broad fraud offences (coupled with the availability of statutory conspiracies in relation to each charge) would not catch conduct which ought to be criminal. One specific, repeated, but it is submitted flawed, example was that based on the case of Hollinshead, where D1 and D2 conspired to manufacture devices to help third parties avoid paying for electricity. They were charged with conspiring to aid, abet, counsel or procure persons unknown to commit the offence of evading liability by deception and, alternatively, with conspiracy to defraud. The House of Lords held that D1 and D2 were not guilty of statutory conspiracy to commit the offence of obtaining the electricity by use of those devices because they were not involved as principals in the actual abstraction of electricity, but the House upheld convictions for conspiracy to defraud because they manufactured and sold the devices for the dishonest purpose of enabling the devices to be used to the detriment of electricity boards. The decision has been heavily criticised. The Attorney-General suggested that the case: illustrates the problem that people may be involved in conspiring to do something but not in the substantive offence because that is done by a third party who is outside the conspiracy. 161 But as Lord Goodhart was quick to point out in response, the argument is not a strong one since the new offence in s.7 will adequately cover such conduct. 162 The Attorney-General's concern that despite the availability of that new charge there would be difficulties because the principal offender would face different charges is, it is submitted, not compelling. Nor was there much substance in the suggestion that it was better to wait to see what the Law Commission's Report on Assisting and Encouraging would add to the picture. That Report 163 was published before the *Crim. L.R. 218 Bill received Royal Assent and in it the Commission made clear that its proposed offence of assisting in crime would meet the potential lacuna were conspiracy to defraud abolished. 164 That did not cause the Government to accede to abolition. A further example proffered by the Attorney-General 165 in which conduct could only be prosecuted as conspiracy to defraud would be:

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where a person allows his bank account to be used by a third party as a vehicle in the transfer of funds (typically from overseas) which form part of a conspiracy to defraud. Since the prosecution might not be able to establish that D knew the details of the fraud it might be difficult to establish a statutory conspiracy. It is unclear why this is not an offence under s.2: D has made a false representation about the use of the account and has done so with a view to gain or cause loss. Even if this not an offence under s.2, it would seem to be covered by the Law Commission's latest proposed inchoate offence of assisting/encouraging in its Report No.300. 166 Despite having confirmed to the Joint Parliamentary Committee that there is no evidence that the common law offence of conspiracy to defraud is being used inappropriately-- fewer than 7% of all defendants in fraud cases being prosecuted under the common law offence 167 --the AttorneyGeneral has accepted that the offence should be kept under review. In the meantime, the AttorneyGeneral will publish new guidance on the use of the offence. 168 The full extent of this guidance has not yet been revealed, but the core element as debated in the House of Lords is a two-stage test which the prosecutor will be obliged to consider in deciding whether to charge the common law offence. 169 The Attorney-General stated that it would: require prosecutors to record their reasons for using the common-law offence, is that it will both focus their attention on why they are doing it and give us a record that we can look at afterwards to see whether we have got this right. The guidance will give my view, that common-law charges may still be appropriate in two sorts of cases. First, there are those cases where the interests of justice can be served only by presenting to a court an overall picture that cannot be achieved by charging a series of substantive offences or statutory conspiracy The second category covers cases where the conduct is such that it can only be prosecuted as conspiracy to defraud. The purpose of the guidance is therefore to give that guidance. Conclusion General fraud offences offer many practical advantages including the clearer expression of large scale criminality in one charge; the ability to render complex *Crim. L.R. 219 schemes more readily understood by jurors; the avoidance of fragmenting factual chronologies to meet technical requirements of specific counts on the indictment; the removal of the risk of duplicity or of overloading the indictment; and the ease of cross-admissibility of evidence. These practical advantages must not, however, be allowed to produce a general offence that is overbroad, based too heavily on the illdefined concept of dishonesty, too vague to meet the obligation under Art.7 of the ECHR, and otherwise deficient in principle. It is certainly questionable whether the Act has secured these practical advantages at the cost of undermining important principles. The offences are so wide that they provoke the kind of astonishment that Professor Green expresses when considering the lowest common denominator of the moral content of fraud: if fraud really were to encompasss not just stealing by deceit, but also deceptive and non-deceptive breaches of trust, conflicts of interest, non-disclosure of material facts, exploitation, taking unfair advantage, non-performance of contractual obligations, and misuse of corporate assets, it would be virtually impossible to distinguish between different offenses in terms of their nature and seriousness, and even to know whether and when one had committed a crime. 170 In addition to creating broad offences which remove the technicality of the old law, the Government's other stated objectives included improving the efficiency of the process from investigation to trial. It is submitted that the changes to the substantive offences will have only a limited impact in this regard. In particular, they will do little to assist in the types of case in which length and cost have hit the headlines in recent years. Greater impact in larger frauds is likely to be felt as a result of the procedural changes being introduced including the Lord Chief Justice's Complex Trial Management Protocol (2005) and the proposals from the ongoing Fraud Review. As the Attorney-General accepted, it is the complexity of fact and not law which prolongs fraud trials. 171 Nor it seems will the Act have any increased deterrent effect. The Norwich Union, Fraud Report: Shedding Light on Hidden Crime 172 noted that: prosecution levels for fraud in the UK are low, and in the event of a conviction being achieved, the likelihood of strong sentencing is also low. This absence of effective deterrents to committing fraud is a significant factor in its growth, and increased exploitation by organised crime. The maximum sentences under the Fraud Act are, by and large, the same as those available under the old deception offences. The overall success of the Act will, it is submitted, turn on the quality and consistency of the

Page15

prosecuting. Such wide offences will no doubt prove attractive to many prosecuting agencies--CPS, SFO, RCPO, DWP, FSA, etc. and guaranteeing appropriate use of these formidable new weapons in the prosecutors' armoury will be no easy feat. I am grateful to a number of people including Professor William Wilson, David Williams, Tony Shaw Q.C., Rudi Fortson for discussions/comments on earlier drafts. I remain responsible for any errors. For a more expansive account of the Act see D. Ormerod and D.H. Williams, Smith on Theft (9th edn, Oxford University, 2007) in press. Crim. L.R. 2007, Mar, 193-219
1. Hansard, HL, col.1664 (June 22, 2005). 2. The Fraud Act 2006 (Commencement) Order 2006 (SI 2006/3200). See also Sch.2, paras 2 and 3. 3. There were 14,000 prosecutions in 2003: Hansard, HL, col.1652 (June 22, 2005) (Attorney-General); for the anticipated impact on the efficiency of prosecutions see the Home Office document www.homeoffice.gov.uk/documents/cons-fraud-lawreform/Fraud_Bill_RIA.pdf . 4. Obtaining property: 1968, s.15; Obtaining a money transfer: 1968, s.15A; Obtaining a pecuniary advantage: 1968, s.16; Procuring the execution of a valuable security: 1968, s.20(2); Obtaining services: 1978, s.1; Securing the remission of a liability: 1978, s.2(1)(a); Inducing a creditor to wait for or to forgo payment: 1978, s.2(1)(b); Obtaining an exemption from or abatement of liability: 1978, s.2(1)(c). 5. Companies Act 1985, s.993. 6. It can be traced back further to, e.g. Law Com. Working Paper No.104, Conspiracy to Defraud (1987) on which see A.T.H. Smith, Conspiracy to Defraud: the Law Commission Working Paper No.104 [1988] Crim. L.R. 509; G.R. Sullivan, Reforming the Substantive Law of Fraud (1988) 52 J. Crim. L. 288. 7. (1999), hereafter No 155 . See D. Ormerod, A Bit of a Con [1999] Crim. L.R. 789. 8. Cmnd.5560 (2002), hereafter No 276 . On which see, G.R. Sullivan, Fraud the Latest Law Commission Proposals (2003) 67 J. Crim. L. 139; P. Kiernan and G. Scanlan, Fraud and the Law Commission: the Future of Dishonesty (2003) Comp. Law 4; P. Binning, When Dishonesty is Not Enough (2004) 154 N.L.J. 1042; J. Holroyd, Reform of Fraud Law Comes Closer: Fraud Bill 2005-6 (2005) 69 J. Crim. L. 503. 9. (2004) www.homeoffice.gov.uk/documents/cons-fraud-law-reform/. 10. See especially A.T.H. Smith, The Idea of Criminal Deception [1982] Crim. L.R. 721. 11. No.276, paras 3.11-3.24. 12. If by cash s.15, money order s.15A, and cheque s.20. 13. Ray v Sempers [1974] A.C. 370. 14. Charles [1977] A.C. 177; Lambie [1982] A.C. 449. 15. Davies v Flackett [1973] R.T.R. 8; Re Holmes [2004] EWHC 2020; [2005] Crim. L.R. 229 and commentary. 16. Royle (1971) 56 Cr.App.R. 131 (Edmund Davies L.J.). See A.T.H. Smith, Reforming Section 16 of the Theft Act [1977] Crim. L.R. 259; J.R. Spencer, The Theft Act 1978 [1979] Crim. L.R. 24. 17. [1996] A.C. 815. 18. It is estimated that fraud cost the UK economy 16 billion in 2004: HC Research Paper, The Fraud Bill (2006) HC 06/31, p.3. On the difficulty in identifying the precise scope of this problem see M. Levi, The Costs of Transnational and other Financial Crime: Making Sense of the Worldwide Data (2001) 1 International Journal of Comp Criminology 8. 19. The merits were discussed in Law Com. Working Paper No.104, Conspiracy to Defraud (1987), and in CP 155, Pts 4 and 5, cf. the views of the CLRC in the Eighth Report, Cmnd.2977 (1966), paras 97-100. 20. J.C. Smith, Fraud and the Criminal Law in P. Birks (ed.), Criminal Justice and Human Rights---Pressing problems in the Law, Vol.1 (1995), p.49. Similar sentiments were expressed by another great theft scholar, E.J. Griew, in The Theft Acts (7th edn, 1995), p.141. See also the conclusions in Law Commission WP No.56, Criminal Law: Conspiracy to Defraud (1974), paras 65, 81-82. 21. See the excellent article by G.R. Sullivan, Fraud and Efficacy in the Criminal Law: a Proposal for a Wide Residual Offence [1985] Crim. L.R. 616; and also Framing an Acceptable General Offence of Fraud (1989) 53 J. Crim. L. 92. 22. It is unclear how a statutory conspiracy to charge fraud offences is to be drafted. Is it a conspiracy to contravene s.1 which provides that a person is guilty of fraud if he breaches any of ss.2-4 or, e.g. a conspiracy to contravene s.1 and s.2? 23. Whether it could have been is debatable. See on the diversity of meanings in fraud offences, S.P. Green, Lying Cheating and Stealing: a Moral Theory of White Collar Crime (2006), Ch.14. 24. See the classic statement of Buckley J. in Re London Globe Finance Corp Ltd [1903] 1 Ch. 728 at p.732, and that of Stephen J., The History of the Criminal Law, Vol.2 (1883), pp.121-122. 25. HC Research Paper 31/06, pp.11-12. 26. HC Research Paper 31/06, p.12; Home Office Explanatory Notes, para.16. 27. Even under the pre-1968 law, it was necessary to show that the false pretences caused the loss; now there need be no loss. 28. There is no longer a problem in cases such as Charles [1977] A.C. 177 and Lambie [1982] A.C. 449. 29. As many general fraud offences have, see, e.g. the proposal by Professor Sullivan, Framing an Acceptable General Offence of Fraud (1989) 53 J. Crim. L. 92 requiring actual loss to V caused by D with intent. See also, e.g. the Canadian Code offence s.380 and the German Code offence: with intent of obtaining for himself or a third party an unlawful material benefit, [D] damages the assets of another, by provoking or affirming a mistake, by pretending that false facts exist or by distorting or suppressing facts. 263 I St GB as described by N. Weinrich, German Cures for English Ailments (2005) 69 J. Crim. L. 427. 30. An alternative model that many fraud offences follow and which was suggested in Law Com. Working Paper No.104. 31. It seems wider than the definitions in Wai Yu Tsang [1992] 1 A.C. 269 and Adams [1995] 1 W.L.R. 52. 32. See N. MacCormick, What is Wrong with Deceit (1983) Sydney L.R. 5: although lying is a wrongful means, it is its intended and foreseen consequences for the victim which are essential to its criminality , p.15. 33. See A.P. Simester and G.R. Sullivan, On the Nature and Rationale of Property Offences in R.A. Duff and S.P. Green, Defining Crimes (2006), p.168; S.P. Green, above, Ch.3. 34. See S.P. Green, above, Chs 13, 14. 35. cf. Collis-Smith [1971] Crim. L.R. 716. D may be guilty of making off without payment which is unaltered by the 2006 Act. 36. It was always possible to prove by inference the more onerous concept of deception: Tirado (1974) 59 Cr. App. R. 80 at p.87. 37. [1993] A.C. 442. 38. Early versions of the Bill were limited but this restriction was removed with the insertion of subss.(4) and (5), which were designed to ensure that representations made to machines were caught by the provision: Hansard, HL, col.1107 (March 14,

Page16 2006). 39. cf. Firth (1990) 91 Cr.App.R. 217 under the old law. 40. W. Wilson, Criminal Law, Doctrine and Theory (2nd edn, 2003), p.462. 41. Adams [1994] R.T.R. 220; [1993] Crim. L.R. 525 and commentary. 42. Explanatory Notes, para.12. 43. See S.P. Green, above pp.76-81, arguing that the former--V who is merely misled ought to have been more careful in the inferences he draws. 44. I am grateful to Tony Shaw Q.C. for the example. 45. Hansard, HL, cols 1419-1420 (July 19, 2005). 46. See also below text accompanying fn.80 where there is discussion of whether D can claim that he did not intend by that misrepresentation to make a gain or loss. 47. cf. the view that jury psychology will not lead to convictions of entrepreneurs under a general fraud offence: S. Wilson, Collaring the Crime and the Criminal: Jury Psychology and some Criminological Perspectives on Fraud and the Criminal Law (2006) J. Crim. L. 75. See, more generally, M. Levi, Regulating Fraud: White Collar Crime and the Criminal Process (1987). 48. The Law Commission accepted this as a possibility of the proposal: No.276, para.7.64. 49. Jones (1703) 1 Salt 379, Holt C.J. 50. Professor Sullivan, above, (2003) J. Crim. L. 139 discussing the Law Commission proposal. 51. P. Kiernan and G. Scanlan, Fraud and the Law Commission: the Future of Dishonesty (2003) Comp. Law 4 at p.8. 52. Home Office Consultation Paper on Fraud Law Reform (2004), p.25. 53. [2004] EWHC 2020; [2005] Crim. L.R. 229 and commentary. 54. E.J. Griew, Theft Acts (7th edn, 1995), para.8-12, it appears now to be universally accepted. See also G. Williams, Textbook of Criminal Law (2nd edn, 1983), p.794 and A.T.H. Smith, Property Offences (1994), para.11-02. A. Arlidge and J. Parry, On Fraud (2nd edn, 1996), para.4-054, however are more doubtful. Some devices used to operate machines are of course instruments for the purposes of the law of forgery. See also D. Wilson, A. Patterson, G. Powell and R. Hembury, Fraud and Technology Crime (Home Office, 2006); M. Chapman, Can a Computer be Deceived? (2000) J. Crim. L. 89. 55. para.17. 56. Surely a D who types information into a machine represents to it, even if he does not deceive it? 57. [1982] 1 Q.B. 1053. 58. See, Hansard, HL Debates, col.1424 (July 19, 2005) (Attorney-General); Standing Committee B, col.8 (June 20, 2006), (Solicitor-General). HC Research Paper 31/06, p.14 59. It was described in the House of Commons debates as tortuous : Hansard, HC, col.553 (June 12, 2006) (Brian Jenkins MP). The strongest academic criticisms were voiced by Professor Griew, author of The Theft Acts 1968 and 1978 (7th edn, 1995); Objections to Feely and Ghosh [1985] Crim. L.R. 341. cf. R. Tur, Dishonesty and the Jury in A. Philips Griffiths (ed.), Philosophy and Practice (1985), p.75. 60. cf. the Law Commission recommending that a claim of right ought not be a defence in all cases; No.276, para.7.66. 61. This amends the controversial provision in the Criminal Justice Act 2003, s.43 which was never brought into force. 62. See No.155, paras 5.33-5.53. 63. (Session 2004-5) www.publications.parliament.uk/pa/jt200506/jtselect/jtrights/134/13402.htm 64. para.2.14, emphasis added. 65. ibid. , para.2.12 66. Professor Halpin argues that the Court of Appeal has interpreted Ghosh so as to create categories of absolute dishonesty: A. Halpin, Definition in the Criminal Law (2004), p.159. 67. A.J. Ashworth, Principles of Criminal Law (5th edn, 2006), p.405. 68. See recently the House of Lords discussion in the context of conspiracy: Saik [2006] UKHL 18. 69. Hansard, HL, col.1416 (July 19, 2005) (Lord Kingsland). 70. Nor did the Home Office in its Response to Consultees, observing that if it caused sellers to be more careful that was a desirable result: para.18. 71. Hansard, HL, col.1417 (July 19, 2005). 72. cf. the old law in which reckless deceptions sufficed: Theft Act 1968, s.15(4). 73. The Government rejected as being too wide mens rea tests based on whether D had no reasonable grounds for believing the representation to be true, and that he ought to have known it to be false. 74. See M. Wasik and M. Thompson, Turning a Blind Eye as Constituting Mens Rea (1981) 32 N.I.L.Q. 328; J. Ll. Edwards, Mens Rea in Statutory Offences, Ch.IX. 75. Roper v Taylor's Garage [1951] 2 T.L.R. 284 (Devlin J.). See also, e.g. Warner v Metropolitan Police Commissioner [1969] 2 A.C. 256 at p.279 (Lord Reid); Atwal v Massey 56 Cr. App. R. 6, DC. 76. Winson [1969] 1 Q.B. 371 at p.383 (Parker L.C.J.). 77. Hansard, HL, col.1414 (July 19, 2005) (Attorney-General). 78. The Guiness case is one of the most famous examples. 79. See No.276, para.4.13. 80. cf. in particular their use in relation to false accounting, Theft Act 1968, s.17. They also appear in the Trade Marks Act 1994. 81. See Standing Committee B, col.32 (June 20, 2006) (Solicitor-General). 82. Sullivan, fn.22 above; Justice, Briefing on the Fraud Bill (2005), para.15. 83. Standing Committee B, cols 33-35 (June 20, 2006). 84. A-G Reference (No.2 of 2001) [2002] Crim.L.R. 844; and see the discussion in D. Ormerod, Smith and Hogan Criminal Law (11th edn, 2005), p.808. 85. Provided the failure to disclose when under such a duty can be seen as synonymous with a false representation by omission. 86. Hansard, HL, cols 1411-1412 (July 19, 2005). 87. The statute is much narrower than the original formulations which included breaches of moral duties or duties arising from an expectation in the mind of the person with whom D is dealing. 88. Home Office, Responses to Consultation (2004), para.21, cf. e.g. the complexity of the law in Clowes (No.2) [1994] 2 All E.R. 316. 89. Hansard, HL, col.1427 (July 19, 2005) (Lord Lyell of Markyate). 90. Hansard, HL, col.536 (June 12, 2006). 91. At paras 7.28 and 7.29; HC Research Paper 06/31 pp.12-13. 92. For example, where a person in a fiduciary position has a duty to disclose material information when contracting with a beneficiary: a failure to make such disclosure will entitle the beneficiary to rescind the contract and to reclaim any property transferred under it. 93. Hansard, HL, col.1426 (July 19, 2005). In No.276, the Law Commission had, when advancing slightly wider offences at

Page17 least as regards s.3, suggested that the criminal law ought not to be tied to the criminal law: para.7.69 94. In Gomez [1993] A.C. 442, HL; [1993] Crim. L.R. 304 and commentary. On which see also M. Davies, Consent after the House of Lords: Taking and Leading Astray the House of Lords (1993) 13 L.S. 308; S. Cooper and M. Allen, Appropriation After Gomez (1993) 57 J. Crim. L. 186 and Hinks [2000] 4 All E.R. 833; [2001] Crim. L.R. 162, on which see also, A.T.H. Smith, Theft or Sharp Practice: Who Cares Now [2001] C.L.J. 21. 95. For academic defences of such an approach, see: S. Gardner, Property and Theft [1998] Crim. L.R. 35; A.L. Bogg and J. Stanton-Ife, Protecting the Vulnerable: Legality, Harm and Theft (2003) 23 L.S. 402; S. Shute, Appropriation and the Law of Theft [2002] Crim. L.R. 445; for opposition see J.C. Smith [2001] Crim. L.R. 162; J. Beatson and A. Simester, Stealing One's Own Property (1999) 115 L.Q.R. 372. 96. See Morris [1984] A.C. 320 at p.334. 97. On difficulties of contract and crime in old law, see G.H. Treitel, Contract and Crime in C. Tapper (ed.), Crime Proof and Punishment: Essays in Memory of Sir Rupert Cross (1981), pp.90-91. 98. s.3 provides no guidance on what constitutes information . 99. Hansard, HC, col.549 (June 12, 2006). 100. Standing Committee B, col.25 (June 20, 2006). 101. An obvious example is where D, an employee, fails to perform his duty under the contract of employment so that a rival company wins the tender at the expense of D's employer. 102. Note that the definition of gain and loss includes intangible property which may well have a significant role to play in the context of abuse of a financial position. 103. See Standing Committee B, cols 24-27 (June 20, 2006). 104. No.276, para.7.38. 105. para.23. 106. s.4 will overlap with theft in some cases, e.g. Chan Man Sin v Att-Gen for Hong Kong [1988] 1 All E.R. 1; cf. Att-Gen for Hong Kong v Reid [1994] A.C. 324. 107. No.276, para.7.37. 108. No.276, para.7.38. 109. If the conduct is perpetrated by a public official there may be an offence of misconduct in public office. 110. See the discussion in the Commons Standing Committee where it was proposed that the word expected be replaced by a requirement that D had a fiduciary duty HC, Standing Committee B, col.11 (June 20, 2006); rejected by the SolicitorGeneral at col.20. 111. But even on that approach, Silverman [1987] Crim. L.R. 574 would now seem to be caught--overcharging of old lady with whom D had a relationship of trust. 112. See HO Explanatory Notes, para.21. 113. Indeed, the CPS said: In the absence of an element of secrecy, it is accepted that the new offence would probably be too wide. However, the deletion of this requirement was supported by Lord Lloyd, Hansard, HL, col.1665 (June 22, 2005). It was criticised by Kiernan and Scanlan (above). 114. See Home Office Responses 2004, para.28. See also Hansard, HL, cols 1432-1433 (July 19, 2005); Hansard, HC, col.538 (June 12, 2006); Standing Committee B, cols 28-29 (June 20, 2006). 115. Doukas [1978] 1 All E.R. 1061. 116. (1978) 70 Cr. App. R. 77, and see J.C. Smith, Theft Conspiracy and Jurisdiction: Tarling's Case [1979] Crim. L.R. 220. 117. [1995] 1 W.L.R. 52, PC. 118. Home Office Response to Consultation, para.00. 119. Standing Committee B, col.15 (June 20, 2006). 120. Att-Gen's Reference (No.3 of 2003 ) [2004] 2 Cr. App. R. 23. 121. The Law Commission had proposed just that: In section 25 (going equipped for burglary, theft or cheat)--(a) in subsections (1) and (3) for cheat substitute fraud , and (b) in subsection (5) for and cheat means an offence under section 15(1) of this Act substitute and fraud means fraud contrary to section 1 of the Fraud Act 200[6] . 122. para.41. 123. Emphasis added. 124. cf. Porter [2006] Crim. L.R. 748. 125. s.25 of the Theft Act 1968, para.49. 126. ibid. ,paras 47-48. 127. Hansard, HL, col.1452 (July 19, 2005). 128. Hansard, HC, cols 541-542 (June 12, 2006). 129. See the Solicitor-General's acceptance that he was making a Pepper v Hart statement to this effect: Standing Committee B, col.45 (June 20, 2006). 130. HC Research Paper 06/31, p.15. 131. Ellames [1974] 3 All E.R. 130. 132. Communications Act 2003, s.126. 133. [1985] 1 All E.R. 850. The House of Lords upheld convictions for conspiracy to defraud; the House implicitly suggested that there was no statutory conspiracy to aid and abet the consumers to commit an offence. See commentary on Hollinshead [1985] Crim. L.R. 653 at p.656. 134. See Misuse of Drugs Act 1971, s.9A, inserted by Drugs Trafficking Offences Act 1986, s.34(1). 135. See Standing Committee B, col.48 (June 20, 2006) (Solicitor-General). 136. The Government rejected calls for the sentence to be a maximum of 10 years consistent with ss.2-4 of the Act: Standing Committee B, col.59 (June 20, 2006). 137. Report No.276 para.8.8. 138. Payment is expected and D has no defence that he believes that most of them are not worth paying for. 139. Hansard, HC, col.540 (June 12, 2006). 140. But, not to cases where D watches the game from the window of a property adjoining the ground: Standing Committee B, col.54 (June 20, 2006). 141. [2003] EWCA Crim 3681. 142. The Government also emphasised the need to avoid criminalising those who received unsolicited services from unscrupulous companies: Standing Committee B, col.54 (June 20, 2006). 143. Law Com. No.277, Cm.5609 (2002), and before that by A.T.H. Smith, above [1988] Crim. L.R. 508 at p.511 144. On which see A. Arlidge and J. Parry, On Fraud (2nd edn), Ch.2. 145. 2006 Act, s.10. 146. (2001), para.15.7. 147. subs.(2). 148. See Blackstone's Criminal Practice (2007), B 5-99.

Page18 149. Emphasis added. For calls for this see Sociedade Nacional v Lundqvist [1991] 2 Q.B. 310 at p.338. 150. See the discussion in the HC Research Paper 31/06, pp.18-24. 151. See also Law Commission Report No.228, Conspiracy to Defraud (1994), on which see J.C. Smith, Conspiracy to Defraud: Some Comments on the Law Commission Report [1995] Crim. L.R. 209; S. Silber, Law Commission Conspiracy to Defraud and the Dishonest Project [1995] Crim. L.R. 461. 152. No.276 (2002), para.1.4. 153. See especially debates on June 22 and July 19, 2005. 154. Hansard, HC, col.561 (June 12, 2006) (Mr Heath MP). 155. Hansard, HL, col.1111 (March 14, 2006) (Lord Kingsland). 156. Hansard, HC, col.565 (June 12, 2006) (Chris Bryant MP). 157. HL Debates, cols 1113-1116 (March 14, 2006). A portion of the letter from Rose L.J. to the Attorney-General is published by the Attorney-General as an appendix to his response to the Joint Parliamentary Committee on Human Rights: Fourteenth Report (2004-5 Session), Appendix 2b. 158. No.276, para.9.4. 159. See, e.g. Ali [2005] EWCA Crim 87. 160. In Saik [2006] UKHL 18. 161. Hansard, HL, cols 1113-1116 (March 14, 2006). The Hollinshead lacuna was identified as long ago as 1988 by the Law Commission in Working Paper No.104, (1987), paras 4-39-4-40; 10-28-10-43. 162. ibid. 163. Report No.300, Inchoate Liability For Assisting And Encouraging Crime (2006). 164. para.3.17 165. In his letter to the Joint Committee on Human Rights Fourteenth Report (2004-5), Appendix 2b 166. www.lawcom.gov.uk/docs/lc300.pdf. 167. para.2.23. There were 1,018 prosecutions in 2003 and 967 in 2004. 168. See his assurance at Hansard, HL, col.1115 (March 14, 2006). 169. It is presumed that the prosecutor will be obliged to consider this guidance whenever the use of conspiracy to defraud is considered, and not just when the alternatives are substantive offences under the Fraud Act. 170. S.P. Green, Lying, Cheating and Stealing, above, p.151. 171. Hansard, HL Debates, col.1656 (June 22, 2005). 172. (2005). 2011 Sweet & Maxwell and its Contributors