Fraud Bill [HL]

Perhaps I can say to the noble and learned Lord, Lord Lloyd, who felt unable to support any of my amendments, that the vast majority of them were probing amendments. He will have noted that, following the Attorney-General’s response, I have usually expressed myself to be entirely satisfied and withdrawn the amendment. Outright hostilities have been entered into on only one, or perhaps two occasions. The difference between me and the noble and learned Lord, Lord Lloyd, is that he has exaggerated those differences. I have just glanced at my Second Reading speech, when I said:"““We, as my noble friend Lady Anelay has said, support this Bill and congratulate the Government on bringing it forward””." I went on to say:"““However, it contains one major flaw; that is, the continuation of the offence of conspiracy to defraud””.—[Official Report, 22/6/05; col. 1670.]" The noble and learned Lord, Lord Lloyd, and I are very close on these matters. I devoted my entire Second Reading speech to the question of conspiracy to defraud, and I apologise to the Committee that I have not tabled an amendment to that effect. I had thought that I had done so; but when I saw the Marshalled List I realised that I had not. I am lucky to be able to lean on the noble Lord, Lord Goodhart. In response to my Second Reading speech, the Attorney-General kindly wrote to me. He pointed out first of all that the balance of consultation responses was not quite as thin in support of the Government’s position as I had supposed. I entirely accept that more organisations than I had thought wrote in to support retaining the offence of conspiracy to defraud. At the same time, the analysis made by the noble and learned Lord, Lord Lloyd, of the contrasting responses is accurate. Those who responded to the consultation in wanting to eliminate the offence of conspiracy to defraud were not as close to the day-to-day prosecution of the offence as those on the other side. I have a question to ask the Attorney-General about some statistics in his letter. At the bottom of page 3, the letter states:"““In 2003, 14,928 defendants were proceeded against in England and Wales for crimes of fraud; 1018 of these were for the common law crime of conspiracy to defraud. That means that fewer than 7% of all defendants in fraud cases are prosecuted under common law conspiracy to defraud””." I wonder how many of those 14,928 defendants were single defendants. In those circumstances conspiracy to defraud would be an inappropriate count, in which case, the 7 per cent would perhaps be higher. I have no idea what the figure is; but I should have thought it relevant to look at conspiracy to defraud only in cases when it could be a count. It may be that those 14,928 defendants were all defendants in cases when conspiracy to defraud could have been used but was not—I am just not sure. The noble Lord, Lord Goodhart, rightly drew to the attention of the noble and learned Lord the Attorney-General paragraph 9.4 of the Law Commission’s report. The Law Commission freely admits that dishonestly failing to fulfil a contractual obligation and dishonestly infringing a legal right are two sets of circumstances not covered by the new definition and therefore would still be capable of being dealt with by conspiracy to defraud. But the noble Lord, Lord Goodhart, went on to quote from the report:"““We accept that there may be a good case for imposing criminal liability in the case of some of these activities where, apart from conspiracy to defraud, no such liability currently exists. As far as we know, however, conspiracy to defraud is very rarely used in this kind of case””." Is that not a very good suggestion? To the extent that the Government are concerned about those two categories, there is no reason why they should not receive specific attention in the Bill which would remove the need for conspiracy to defraud beyond peradventure. The real problem is that there will be a temptation for the prosecutor to use conspiracy to defraud, even though the other offences are open to him, because in some cases it is an easier way of both representing the case in court and adding an enormous amount of flexibility in the way the case is put by the prosecution. That surely is the danger. Throughout the Law Commission’s report, the theme of removing conspiracy to defraud is linked with the fundamental concept of legal uncertainty. It is surely right that a defendant should know as much as possible about the actus reus of the offence. But under conspiracy to defraud, a great deal of the actus reus can be dreamt up as the case is developed. Indeed, it is well known that the degree of participation by everyone in a conspiracy to defraud can be of a very varied weight and magnitude, yet nevertheless each individual will be caught. How much better to rely on the new definitions set out in the Bill. The noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Goodhart, have suggested, as an alternative to removing conspiracy to defraud from the Bill now, an alternative whereby the Government would leave it on the face of the Bill but agree after a period to remove it, on the assumption that it is indeed otiose. Can the noble and learned Lord help us here? If conspiracy to defraud were left on the Bill, what instructions would the noble and learned Lord give to the CPS about its approach to the use of the offence in future indictments in relation to the new main offence? Would he say, for example, that it should be used only in circumstances where it was absolutely clear that the alleged offence could not fall under any one of the three new clauses? That is because it would be highly undesirable if conspiracy to defraud was still used as an overlapping category in a prosecution. That would defeat the whole purpose of the Bill. It would undermine all the work done by the Law Commission.