Fraud Bill [HL]

I entirely agree with the noble Lord, Lord Thomas of Gresford, on this. However, I wish to start by saying that it is a great pleasure to have for the first time the opportunity to debate in this Chamber with the noble and learned Lord, Lord Lyell. The Law Commission rejected the concept of recklessness for two reasons. One was that, at that stage, the law was remarkably unclear about what recklessness meant. Noble Lords who have followed the way that the concept of recklessness has been defined, redefined, clarified and muddied over the years will understand the problem that the Law Commission saw. It is right to say that since that date, the decision of the House of Lords in R v G, to which the noble Lord, Lord Kingsland, referred, stated what the test ought to be. But it is a test in the context of criminal damage. I notice that when the noble Lord, Lord Kingsland, drew his definition, he was referring to a similar area which was to do with a different form of violent conduct. Recklessness is a problem. If one takes the definition from the Criminal Damage Act, one quickly needs to ask whether it is unreasonable for the defendant to take the risk if he is aware that what he is saying or doing may have a certain consequence. That is an added complication, and is my slight refinement on what the noble Lord, Lord Thomas, said about the problem of introducing recklessness. I do not see the merit of introducing recklessness into the Bill. I come back to the concept of dishonesty. I do not see the difficulty in the art dealer example given by the noble Lord. 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. The alternative is to ask the jury to start by looking at whether the dealer is taking an unreasonable risk that the statement is untrue. The simpler approach which the Government have put forward is to say that if someone dishonestly makes a representation knowing that it is untrue, or that it might be untrue—and I emphasise ““dishonestly””—and the fact-finding tribunal decides that he was dishonest, he should be guilty of an offence. I therefore invite the noble Lord to withdraw the amendment.