LAW COMMISSION
FRAUD & DECEPTION
Consultation Paper No 155
Response of the North Eastern Circuit
1-3. A general dishonesty offence
We agree with the Commission’s conclusions and reasoning.
4. A general deception offence
We agree with the Commission’s conclusions and reasoning.
5. Obtaining property by deception
We agree with the Commission’s proposal that depriving someone of property by deception would cover possible future problems of the Preddy sort without creating any significant problems.
6. Intention permanently to deprive
The most common case that we meet where this is a real issue is where an employee takes or obtains money, asserting when the taking is discovered, that he was merely borrowing the money, and intended to return an equivalent amount in due course.
Although we follow the logic of the argument for removing this element from the definition of any offence, we are concerned that if at the same time the Ghosh element of dishonesty is removed it would criminalise the behaviour of someone who obtains money from their employer in a moment of personal crisis, genuinely believing that they would be able to repay the same within a reasonable time.
The result would be that that which at the moment can be declared non criminal by a jury would be left to the judgment of a judge on a Newton hearing in relation to mitigation. Similarly we lack confidence in the degree to which reliance would need to be placed on a discretion to prosecute.
We do not see that either of the proposed alternatives would assist our prospective defendant.
We do not find in practice that the problems spoken about arise with any frequency. However the law is defined, ingenious arguments will be raised, and appeals pursued.
We would argue for the retention of this element of the offence of depriving by deception.
8. Causing a consequence by deception
We do have experience of cases where a defendant’s conduct has clearly been fraudulent, and yet it has not been possible in court to establish that the fraud caused the obtaining of the money.
This has arisen particularly in cases involving elderly or other vulnerable complainants whose evidence sometimes fails to square the circle on this point. The evidence has been that the defendant did some work (roof repairs etc), that the work was of little value, that he was paid a large sum of money, and yet the evidence given by the complainant fails to identify any specific deception (by way of a representation) as the cause of the payment of the money.
It is difficult to see what changes could be effective as more often than not the problem is in the quality of the complainant’s evidence rather than the nature of the charge.
We therefore have no proposals to make.
9. Dishonesty
We do not agree that the element of dishonesty should be removed from offences of deception. In most cases dishonesty can be inferred from deception. In most instances a defendant can effectively be cross examined about the deception that has been used and the dishonesty of using such a deception.
However we note that it is proposed to allow a defence based upon a belief in a claim of legal right. We would observe that there could be circumstances where someone brings about the relevant deprivation under a belief that it was something that they should do but falling short of a claim of right. In those circumstances they could say at the present time that they were not acting dishonestly, and a jury could only convict if they were sure that the conduct was dishonest and was known by the defendant to be regarded by right thinking people as dishonest. As there is no definition of dishonesty other than that "you members of the jury set the standards as to what is dishonest and what is honest", we would regard this as an important safeguard for defendants who have acted in a way that is not morally blameworthy.
10. Effective prosecution
We can see no objection to the concept of a single fraudulent scheme being charged in a single count on an indictment.
The principles of "continuous offence" and "general deficiency" in relation to theft, are well established in law, although the general tendency in recent years seems to have been to move away from that pattern towards separate offences for separate takings.
By expressing an indictment in the passive mood ie that a false belief was induced by deception namely by words and conduct, one can establish that a series of deceptive events has caused the loss.
A single false representation can cause a series of losses through the setting up a standing order bank mandate.
If there is more than one defendant then a charge of conspiracy can be proved by evidence of one or more deceptive events and by evidence of one or more losses to a complainant.
It is difficult to see, given these examples, why you should not have an offence or a count of fraud which is committed by one person and which encompasses a number of deceptions which lead to a number of separate losses provided they can be shown to be part and parcel of a series of transactions or an overall scheme.
In relation to sentence although it can be argued that a judge would not know on what basis a jury had convicted a defendant, it has to be acknowledged that that is not different from many other cases. On the positive side in relation to sentencing, it would avoid the problems that currently exist whereby in the absence of a schedule of TICs a defendant can only be sentenced for the counts upon which he has been convicted. This proposal would overcome the overloading of the indictment that sometimes occurs in order to avoid this problem
11. Including both theft and deception in "the scheme"
We think that it would be preferable to avoid the mixing of 2 offences in one count if possible. Simply on the basis that it would overcomplicate a summing up. We appreciate that an indictment may contain both theft and deception charges and both have to be summed up. It just seems to us that to create an offence that contains both on an and/or basis, particularly given the issue as to whether they or either of them will contain a Ghosh dishonesty element could prove too much for a jury to be expected to grapple with. The phrase "Olympian Gymnastics" comes to mind.
12. Need for a representation
The essence of obtaining by deception is the inducing of a belief by words or by conduct. Section 15 (4) of the Theft Act is clear enough. We do not therefore regard this area of the law as requiring any amendment. The practice of charging "false representations" comes about through the reliance on specimen charges set out in Archbold et al and the use by police forces, and CPS computer operatives of such specimens with which they are provided. It is our experience that where counsel has been asked to draft charges in more difficult cases, use has been made of the specimen counts for eg conspiracy to obtain by deception in Arlidge & Parry on Fraud, which do not refer to representations.
13. Imposing liability on another
We agree that the proposed new offence would be a proper way to cater for the fraudulent use of credit, debit and cheque cards.
16. Future of existing dishonesty offences
In the most general of terms we would be against the removal of dishonesty as an element in the existing offences referred to. We consider there is a difference in making dishonesty alone the basis of an offence and making it an element in an offence that has other distinct elements constituting the actus reus.
We would be interested in commenting on more specific proposals in due course.
