Fraud Bill [HL]

moved Amendment No. 24:"After Clause 10, insert the following new clause—"    ““CONSPIRACY BETWEEN HUSBAND AND WIFE TO DEFRAUD    After section 5(2) of the Criminal Law Act 1977 (c. 45) (abolitions, savings, transitional provisions, consequential amendments and repeals) insert— ““(2A)   A person may be guilty of the common law offence of conspiracy to defraud if the only other person with whom he agrees to conspire is his spouse or civil partner.”””” The noble Baroness said: Amendment No. 24 is on a matter to which I referred briefly at Second Reading. It would abolish the exemption given to married couples and civil partners in Section 2(2)(a) of the Criminal Law Act 1977. The consequence of that section is that at the moment if a husband and wife or, indeed, civil partners are the only persons who can aspire together to commit a fraud they cannot thereby be convicted because the activity in which they are engaged does not constitute an offence. They must first conspire with somebody else before that activity becomes an offence. Prior to the Criminal Law Act 1997, conspiracy was a common law offence. That Act replaced common law conspiracy with a statutory offence. Two common law conspiracies were preserved; namely, conspiracy to defraud and conspiracy to do acts tending to corrupt public morals or outrage public decency. Many of the old common law rules and concepts remain in being, albeit restated in statutory form. Under one such rule, with which I am concerned today, a husband and wife are not guilty of conspiracy if they alone are parties to the agreement. The offence of conspiracy is complete only once an agreement between two or more persons has been made to commit an offence. The agreement of course does not have to be put into effect; and the fraud does not actually have to be carried out. So, I direct my attention to Section 2(2)(a) of the Criminal Law Act because that is where the common law rule exists that a husband and wife are not guilty of conspiracy if they alone are parties to the agreement. I have concerns about this issue. I was perhaps a little flippant at Second Reading in the way I introduced it. It is a matter about which I have serious concerns. The Bill is the only way at the moment that I have to raise the matter and amend the law in respect to conspiracy to defraud. I appreciate that other conspiracy offences would not be within the scope of the Bill. The rule as it stands causes real problems. If a jury is not satisfied that there was another party to the conspiracy to defraud, it has to be directed to acquit the husband and wife or, indeed, in future, civil partners. Can that really be right in the 21st century? As I have said before, it harks back to an age where a wife was considered to be the husband’s chattel and was not able to make a separate stand-alone decision in her own right. It seems extraordinary that that same concept appears to have been transferred into a very modern Act that enshrines civil partnerships as being legal in this country. When the Civil Partnerships Act went through I wondered whether somebody had been given the task of trawling through statute law and, wherever husband and wife might be referred to, adding civil partners as an amendment. It seems to me that by adding ““civil partners”” to this provision, what was already a bad loophole that needed to be closed has merely been extended. When I raised the matter briefly at Second Reading on 22 June, the noble and learned Lord the Attorney-General stated at col. 1673 that—and I paraphrase—the Law Commission was going to be looking at the law of conspiracy more generally as part of a codification project. That was going to be next year, it hoped. The noble and learned Lord made the generous offer that at the very least he would let the Law Commission know what I had said on that occasion. I hope the noble and learned Lord will understand something of my impatience and slight scepticism about whether anything might be done, or at least done as soon as I would hope. Of course I welcome any work by the Law Commission on this, as on other matters. I consider its work an invaluable resource, particularly to me as a layman, as it puts its work in language that I can readily understand. However, if it is the case that the Law Commission merely hopes to issue a consultation paper next year, I wonder what the timetable might be for any potential reform. There is then no guarantee that any recommendation it may make will be put into effect. I gently remind the noble and learned Lord that that was the subject of our last debate on the matter. In that debate, the noble and learned Lord was hoping to reassure the House by saying that there were other matters that could be taken into consideration to see how   fraud prosecutions would pan out. He referred to matters such as multiple offending provisions and the Lord Chief Justice’s protocol by saying ““Let’s see what happens””. He offered a review of conspiracy to defraud in three years’ time. I do not find that too reassuring for the narrow point that I make here. The noble and learned Lord gave some encouragement by saying there might be other opportunities to amend law in future Home Office Bills. As Home Office spokesman on these Benches, I look forward to six more Home Office Bills from October. My goodness me, I was hoping the Home Office might take a breath in the year after that. I am giving him the opportunity here of a vehicle to put the law right easily with regard to this narrow point by closing a loophole. I look forward to the noble and learned Lord’s response. My noble friend has been able to say how helpful he has been. I hope I will be able to say the same. I beg to move.