Fraud Bill [HL]

moved Amendment No. 1:"Page 2, line 6, leave out ““by words or conduct””" The noble and learned Lord said: My Lords, in moving Amendment No. 1, I shall speak also to Amendment No. 2. It has always been the Government’s intention that the Clause 2 offence should apply to representations made to a machine just as it applies to representations made to a person. However, having reflected on the Bill since Committee, we have concluded that as the Bill stands, it is not entirely certain whether the Clause 2 offence would apply equally to representations made to a machine as it does to representations made to a person. In a letter that I wrote on 15 October of last year I set out how these amendments will clarify the offence to make sure that false representations made to machines would be a crime under the new general offence of fraud. It is clear—and it is stated in the Explanatory Notes to the Bill—that the Clause 2 offence extends to false representations posted on a website. Even if the representation is not read by another person, the information, once transferred to a website, is open to be read and intended to be read by others. The position is not so clear for representations made to a machine, which in some cases may never be read by a person. In its report, the Law Commission notes that it is arguable whether there is a false representation if data are inputted into a machine even if there is no deception of a person. So there is potentially an element of uncertainty here. The commission was naturally very conscious of the problem of representations to machines, but its view was that the problem would be resolved by Clause 11 as it arises only in relation to services; they are not property and hence cannot be the subject of a theft charge. The Clause 11 offence should indeed be used in cases where services have been dishonestly obtained, but on one reading of Clause 2 as it stands, the prosecution might need to rely on a charge of theft where property has been obtained by inputting data into a machine. We consider that it would be undesirable to differentiate between cases where property is obtained fraudulently by a representation made to a machine, which in practice operates on behalf of a person, and where the representation is made directly to a person. For example, we see no need to distinguish between a credit or debit card tendered to a machine in cases where the card is tendered to a person. Indeed, in many everyday situations it is a combination of the two and, increasingly, the sales assistant takes a back seat while the customer inputs the PIN into the card machine. The Law Commission said that its new offence would apply even if the person to whom the card is tendered is indifferent as to whether the representation to him is false, but it may not always be clear in such cases whether the representation is actually made to an indifferent sales assistant or simply to the machine. For example, on occasions the sales assistant may not even look at the card as the card owner himself inserts the card into the machine and enters the PIN. The practical difference between a person misusing a credit card before a sales assistant indifferent as to whether a representation is false and a representation being made without the presence of any assistants seems to us to be negligible. We do not want law enforcers to face unreasonably technical choices in making charges and we consider therefore that the Bill should make it clear that a false representation should be an offence whether made to a machine or to a person. This is done by making amendments to provide expressly that representations may be implied and that a representation may be regarded as being made where it or anything implying it is submitted to any system or device, the aim being to clarify, for example, that the entering of a number into a chip-and-pin machine is a representation. The Clause 2 offence, like the other limbs of the general offence of fraud, is offender-focused. It avoids the need to identify a victim who has been deceived by the actions of the offender. These amendments would ensure that the operation of the offence is properly aligned with this underlying principle. I beg to move. On Question, amendment agreed to.