Fraud Bill [Lords]

I am delighted that someone such as my hon. Friend the Member for Broxbourne (Mr. Walker) has found this afternoon’s debate such an enjoyable occasion, because, as he knows, the Government are here to provide us with pleasure, and they have, in fact, done it 53 times since 1997. This is, I think, the 53rd Bill that they have introduced to do with the criminal justice aspect of criminal policy. Probably, on this 53rd occasion, this is the one Bill that I can more or less wholeheartedly welcome, so long as they implement it. I have tabled a number of parliamentary questions to the Home Secretary—this one, the last one and the one before that—to ask which Bills have been brought into force, which of their provisions have been repealed before they came into force, which have been repealed since coming into force and which are yet to come into force, and it is quite amazing how one gets back a telephone bill of an answer, too big to be e-mailed by the relevant Home Office department, to show how active the Government have been in producing legislation, but how dilatory and, indeed, how repetitive they are in the work that they do in bringing it into force. So they are a Government who chase headlines, but thanks to the Law Commission—on behalf of the official Opposition, I send my thanks to the Law Commission—here at least we have a Bill that looks pretty good. I also thank the Joint Committee on Human Rights for producing its 14th report, which deals in part with the Bill, and there is some good reading to be had in there, not least because it points out some of the concerns that the Government ought to have—I am sure that the Solicitor-General has them—about aspects of the European convention on human rights and the way in which it bites on the Bill, particularly in relation to articles 5 and 7. A number of hon. Members have expressed our interest and support for the continuance of jury trial. My hon. Friend the Member for Beaconsfield (Mr. Grieve) and the hon. Members for Somerton and Frome (Mr. Heath) and for Meirionnydd Nant Conwy (Mr. Llwyd) and others have all expressed views in support of jury trial and quite sensibly stated that the problem with some of the more difficult fraud trials is not the jury’s participation but the case management and the way in which the prosecution case has been presented to the jury. As my hon. Friend the Member for Beaconsfield pointed out, very often those cases have fallen apart well before they get to a jury. Certainly, if there was much space in Government’s armoury for arguments against the use of juries in fraud trials, that space has been utterly emptied by the production of the Bill, which is, no doubt, intended to simplify and clarify the criminal law in relation to dishonesty. I trust that the Government will be extremely slow to introduce not only another criminal justice Bill, but a Bill to implement section 43 of the Criminal Justice Act 2003, to abolish juries. As my hon. Friend and I have said, we broadly welcome the Bill and are prepared to allow the Government the three-year period to consider the aspects of it that have been discussed in the other place and in the House in relation to the common law offence of conspiracy to defraud. However, I remind the Government of what my noble Friend Lord Kingsland reminded the Attorney-General of on 29 March, when the Bill was read for the Third time in the other place. I quote his remarks as recorded in the Lords Hansard:"““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 a good reason for doing otherwise’.””—[Official Report, House of Lords, 29 March 2006; Vol. 680, c. 779.]" In essence, what other hon. Members and I are asking for is that there should be clarity and certainty in the criminal law. The Solicitor-General and I are familiar with the expression ““the certainty of indictment””, and that rubric should flow across into statute law, just as much as it does in the drafting of a criminal indictment. Although we are happy to give the Government that three-year extension while they consider the common law conspiracy offence, it is something that ought not just be let to run. Whether there is sunset clause or some other device, it is not something that the Government should allow just to roll off into the long grass. What we are essentially talking about is dishonesty—a concept that is often easy to recognise and sometimes a lot more difficult to define. Definitions are important in all statutes, but particularly in criminal law statutes and certainly in the Bill. By and large, the definitions in the Bill are sufficiently clear and the sort of thing that a judge—I declare an interest as a Crown court recorder and as someone who practices as a barrister not at the criminal Bar but at the civil Bar—can easily explain to a jury at the end of a trial. We must bear in mind the fact that some areas of definition will need to be teased out. My hon. Friend the Member for Beaconsfield ran through those relating to the expressions ““loss”” or ““gain”” in clauses 3 and 5. More importantly, that relating to the word ““expected”” in clause 4(1)(a) has far-reaching implications that require careful thought. Issues relating to duty flow from that. My hon. Friend and the Solicitor-General had a private debate earlier about fiduciary duty. Speaking as a defamation specialist, when one talks about qualified privilege, one often talks about the duty to pass on a defamatory allegation even though one might know that it is defamatory and might be damaging. That duty can be described as either legal, moral or social. Therefore the fiduciary duty about which my hon. Friend and the Solicitor-General were talking might not be the only sort of duty caught by an expression such as ““expected””. I therefore urge the Government to think carefully in Committee about what they mean, what they want the courts to mean, and what they think the police and prosecuting authorities ought to be doing when faced with a case that might fall under clause 4, entitled ““Fraud by abuse of position””. As I said, there is a clear need for certainty in the criminal law, and as long as that is provided by the time the Bill leaves this House, either to go back to the other place or to get Royal Assent, none of us should complain. I want to say one or two more things about clause 4, as that, in conjunction with the problems described in relation to clauses 6 and 7 on criminal intent, is where most of the difficulty with the Bill will lie. The hon. Member for Meirionnydd Nant Conwy had great fun with his Liberty briefing on A, M and—