Fraud Bill [HL]

Clause 6 makes it an offence for a person to possess or have under his control any article,"““for use in the course of or in connection with any fraud””." I shall return to the words ““for use in”” because they are important. It follows the wording of Section 25 of the Theft Act 1968, which makes it an offence for a person to go equipped to commit a burglary, theft or cheat. The amendments would all limit in some way or another the ambit of the clause. Let me start with the amendments which would limit the possession of articles to those that have been made or adapted specifically for use in committing fraud. Many of the articles used in fraud are not made or adapted for that purpose. For example, a credit card reader has legitimate uses, but it can be used without any adaptation to gather credit card details illicitly. Another example, which one suspects happens more frequently than one knows, arose under Section 25 of the Theft Act 1968. A hotel waiter was convicted of possessing six bottles of wine of a type not stocked in the hotel which he intended to sell for his own profit. Clearly, the wine was not made or adapted for use in a fraud—at least, one strongly suspects that it was not—but plainly that was exactly what the waiter was about to do. There may well be other wine of the kind in a car boot sale which the noble Lord, Lord Goodhart, was worried about. However, even an entirely innocent article such as a bottle of wine can be demonstrably produced in a fraud. We would therefore resist limitation to things that are used or adapted specifically for fraud. We would also suggest that it is highly undesirable to restrict the clause to articles for use in the course of committing fraud and excluding articles for use in connection with fraud. Let me give again the example of the credit card reader. That would be used to gather credit card details illicitly. It is not the reader that is being used in the course of the fraud but the details which are then gathered and subsequently used. The reader would be used only in connection with the fraud. Therefore, to capture that important example, the words need to be as broad as they are. Then it is suggested that there should be a requirement that the possessor of an article for use in fraud should intend to use it in a fraud. I return to my credit card reader example. The person who possesses it may be gathering credit card details illicitly, but have no intention of contributing to the actual fraud. It does not matter that the defendant does not intend to use the article himself; it is enough to prove that he intends it to be used by someone else. This amendment would prevent that. I turn to the final point, which relates to the amendments intended to touch on the state of mind of the defendant. On lawful excuse, there is no exemption in Section 25 of the Theft Act for persons who have a lawful excuse. That has posed no problems because case law has established that Section 25 requires proof that the defendant had the article for the purpose or with the intention that it be used in the course of or in connection with, in that case, the cheat. I invite attention to the decision of the Court of Appeal in Ellames, 60 Criminal Appeal Reports 7, where the court said that the words in that section—"““has with him any article for use””—" meant has with him for that purpose or with the intention that they will be used. Therefore, the requirement which the noble Lord, Lord Thomas, wants to see imported—that there should be an intention—is caught by the words ““for use””. I say that it catches the intention of the noble Lord, Lord Thomas, because, plainly, if something is with you for use in that sense, you must know that you have it. It is not therefore necessary to include the word ““knowingly””. We think it is desirable to use the same language as Section 25 because that will then catch the case law that already exists. For those reasons, I hope that I have shown noble Lords that the offence is because of those words, more narrowly and properly drawn than perhaps they suspected and that none of the amendments that they have put forward would actually improve the Bill.