Fraud Bill [HL]

My Lords, my name also is on the amendment. I thank the noble and learned Lord the Attorney-General for expediting this document. It has been extremely helpful in our approach to Third Reading. The Attorney-General has helpfully summarised in paragraph 8 of his draft advice the judgment of the noble and learned Lord, Lord Bingham, the then Lord Chief Justice, in the joined cases R v Rimmington and R v Goldstein. The latter part of the portion of the judgment which appears in paragraph 8 reads,"““good practice and respect for the primacy of statute do in my judgment require that conduct falling within the terms of a specific statutory provision should be prosecuted under that provision unless there is good reason for doing otherwise””." The Attorney-General’s draft goes on in paragraphs 12, 13, 14 and 15 to consider the circumstances in which there might be good reason for doing otherwise. Paragraph 15 is quite unexceptionable. It sets out the specific circumstances in which the definition of fraud in the Bill does not stretch to certain potentially undesirable activities. It might, therefore, be appropriate for those to be prosecuted under the common-law offence of conspiracy to defraud. More interestingly, the noble and learned Lord the Attorney-General considers a second category in paragraphs 12, 13 and 14, which is,"““Conduct that can more effectively be prosecuted as conspiracy to defraud””." This category was not really dealt with in the Law Commission’s report on fraud; that report dealt with the substantive law. Here, the noble and learned Lord the Attorney-General has turned to matters of sentencing and admissibility. As I understand the thrust of these paragraphs, there may be circumstances in which it is right to use conspiracy to defraud because prosecuting under statutory offences, even though they cover the activity concerned, would not give rise to an appropriate sentence, and because the collection of statutory offences, unlike the offence of conspiracy to defraud, would not reveal to the court the full nature of the crimes prosecuted. In short, there are circumstances in which conspiracy to defraud will be used by the prosecution for sentencing purposes. Also included within this second category are admissibility matters, which, again, were not explored, at least with any intimacy, by the Law Commission. The noble and learned Lord the Attorney-General refers, particularly in paragraph 13, to circumstances where, under specific statutory accounts, trials might be severed, whereas, if the offence of conspiracy to defraud were used, a trial might embrace all the matters of alleged criminality that were put before the court by the prosecution. I make no judgment about whether it is appropriate or not to use sentencing and admissibility reasons to retain conspiracy to defraud, because, like the noble Lord, Lord Goodhart, I am content that the noble and learned Lord the Attorney-General should have his three years to see how these matters progress. But, in replying on the contents of the document, I would be most grateful if the noble and learned Lord could just glance at those three paragraphs and, perhaps, unpack what is said in them. I am particularly grateful for the way in which the noble and learned Lord has set out his future intentions in paragraph 10. The case lawyer, first of all, will consider and set out in writing why it would be appropriate for the common-law offence to be used; then, that judgment will be looked at again and reinforced, or otherwise, by the supervising lawyer. That seems an eminently sensible and reassuring way in which to progress. I also note in paragraph 11 that the noble and learned Lord has stated that the information from the records of the case officer or the supervising officer ““will be collected retrospectively””—those are his words—and then reviewed in 2009. At that point the noble and learned Lord will take a view on where we stand with regard to the offence—whether we need to continue with it as it is at the moment, or in some different form, or whether we can satisfactorily dispense with it. Despite the fact that I have asked the noble and learned Lord these questions, I would not want him to think anything other than that I find this document most useful.