The Law Commission

PART VIPART VI

OUR PREVIOUS PROPOSALS

6.1      So far we have concluded that the present law is defective, but that a general dishonesty offence would not be an appropriate way of remedying its defects. In this Part we summarise the recent proposals put forward by this Commission as alternatives to such an offence. They are to be found within Consultation Paper No 155 and our informal discussion paper. A history of our less recent work on this subject can be found in Appendix B, which summarises the relevant publications dating back to 1976.

Consultation Paper No 155

6.2      Following the Home Secretary's reference,^[1] in 1999 we published Consultation Paper No 155 in which we provisionally rejected not only the option of a general dishonesty offence but also the less radical option of a general deception offence, arguing that the case for such an offence was not made out. Instead we proposed that the existing deception offences should be extended in a number of specific ways.
6.3      One such proposal was that the separate requirement of dishonesty should be discarded – in other words, a defendant against whom all the other elements of a deception offence are proved should not be able to appeal to the fact-finders for an acquittal on the ground that his or her conduct was not "dishonest".^[2] As we explained in Part V above, we have now decided to abandon this proposal.
6.4      The other extensions of liability that we proposed were:

(1) that, for the purposes of the offence of obtaining property by deception, it should be sufficient that the owner of the property is deprived of it, regardless of whether or not anyone else obtains it (thus overcoming any remaining problem analogous to that identified in Preddy);^[3]

(2) that that offence should cease to require proof of an intention permanently to deprive;^[4]

(3) that the offence of obtaining services by deception should apply not only (as at present) where the services are provided on the understanding that they have been or will be paid for, but also where

(a) they are provided free as a result of the deception, or

(b) they are provided with a view to gain (for example, free banking facilities);^[5] and

(4) that, to meet the difficulties in proving an offence of deception where bank and credit cards have been used without authority,^[6] there should be a new offence of dishonestly imposing on another person, without authority, a liability to pay money to a third party.^[7]

6.5      We also expressed the provisional view that the kind of conduct conveniently described as "deceiving a machine"^[8] should be made criminal, but that this should be done by creating a new, "theft-like" offence rather than by extending the concept of deception. This is the basis of a recommendation that we make in Part VIII below, where we also make a recommendation based on proposal (3) above. Proposals (1), (2) and (4) would be rendered unnecessary by the more radical reforms we now recommend in Part VII.

The discussion paper of July 2000

6.6      The responses to Consultation Paper No 155 led the criminal law team to reconsider the proposals we had made. This resulted in our informal discussion paper which was circulated in July 2000 to those who had responded to Consultation Paper No 155. The views expressed in this paper reflected the thinking of the criminal law team at that time, rather than those of the Commission as a whole.

A general deception offence

6.7      The principal change in thinking between Consultation Paper No 155 and our informal discussion paper was in relation to the option of introducing a general deception offence, under which the infliction of financial loss by deception would be an offence in itself, irrespective of the particular kind of transaction involved. Although a little over half of the respondents to Consultation Paper No 155 who considered this issue agreed with our provisional rejection of the arguments for such an offence, those who did not were vocal and persuasive in their views. The benefits of a general deception offence were apparent, they argued, and (unlike the broadly similar benefits of a general dishonesty offence) were not outweighed by concerns that such an offence would be too indeterminate. The need to be able to respond to unpredictable changes in commercial and other practices was emphasised. Developments in these areas have led to a proliferation in the means by which frauds can be carried out, some of which do not easily fit within the existing definitions. It was considered that the breadth of the offence, far from being detrimental, would be highly beneficial, by allowing conduct which is not readily captured under the specific definitions currently employed to be prosecuted.
6.8      Moreover, the view we had expressed in Consultation Paper No 155, that a general deception offence would be too broad to be justifiable, was based partly on our provisional conclusion that the requirement of dishonesty was contrary to principle and should be abolished. As a result of that conclusion we proceeded in Consultation Paper No 155 on the basis that a general deception offence, if created, could not be subject to a requirement of dishonesty: it would have to consist solely in the infliction of loss by deception. As we have explained,^[9] the responses to Consultation Paper No 155 persuaded us that our objections to a requirement of dishonesty were unfounded. This opened up the possibility of a general offence requiring both deception and dishonesty. Such an offence would clearly be less open to objections of undue width than the offence we originally had in mind.
6.9      For these reasons, our informal discussion paper proposed the introduction of a general offence which would cover the infliction by a false pretence^[10] of any kind of financial loss, and the making by deception of any financial gain. This time there was strong support for this proposal: of the 33 respondents who addressed the issue directly, 30 were in favour. In general, respondents thought that the time had come for the patchwork of existing offences that have been modified and developed in response to changing needs to be replaced by one offence, in order to simplify and rationalise the law.

The concept of deception

6.10      Our informal discussion paper also discussed certain difficulties that currently exist in relation to the concept of deception, and would continue to exist if a new general offence were defined in terms of that concept.
6.11      First, as we explained in Part III above, there is a problem where the victim is indifferent to the truth of the proposition asserted by the defendant to be true, and it is therefore debatable whether he or she can be said to have been deceived – for example, where the fraud consists in the unauthorised use of a credit card or similar payment instrument. Our informal discussion paper suggested that this problem would be avoided if the law's focus were shifted away from the mind of the victim on to the conduct of the defendant, and to this end it proposed that the new general offence be defined in terms of "false pretence" rather than deception. It would still have to be proved that the loss or gain resulted from the pretence. In order to meet the argument that a pretence has no effect unless it is believed, however, the paper proposed that it should be sufficient if the victim responded in some way to the actions of the defendant as a whole (as distinct from responding to the pretence in particular), even if that response were "automatic" and not based on any positive belief in the truth of the pretence. This idea attracted only limited support: many respondents argued that it would be less artificial simply to recognise that the element of pretence is not essential in the first place. We are now persuaded by this argument. Misrepresentation is therefore one, but only one, of the ways in which the new fraud offence we recommend in Part VII could be committed.
6.12      Secondly, as we also pointed out in Part III, a requirement of deception cannot be satisfied where no human being is deceived because the defendant's false assertion was made only to a machine. It follows that, at present, it is not normally an offence to obtain services (as distinct from property, the dishonest acquisition of which is theft) by "deceiving" a machine. Our informal discussion paper proposed to meet this problem by taking the idea of "automatic" response by a human being and applying it to the literally automatic responses of machines. There was general agreement among respondents that the dishonest obtaining of services from machines should be brought within the criminal law, but again there was some opposition to the idea of doing this by stretching the concept of pretence. We are now persuaded that an offence designed to cover such conduct should be formulated simply in terms of the dishonest obtaining of services, rather than requiring that the services be obtained in a particular way which is analogous (but not identical) to deception; and we make a recommendation to this effect in Part VIII below.

Note 1    See para 1.1 above.    [Back]

Note 2    We proposed that it should instead be a defence that the defendant believed he or she had a legal right to act as he or she did.    [Back]

Note 3    [1996] AC 815. There was overwhelming support for this proposal. Representatives of the business community, in particular, argued that there are still types of transaction in which the need to prove that the property received by the alleged fraudster is the same as that of which the victim has been deprived creates an obstacle to prosecution.    [Back]

Note 4    There was no consensus on this proposal – though many of the respondents who disagreed with it seemed to be concerned more with theft (to which it did not apply) than with obtaining by deception.    [Back]

Note 5    There was general support for this proposal.    [Back]

Note 6    See para 3.29 above.    [Back]

Note 7    There was general support for this idea. It became apparent, however, that the proposal would cause difficulties because, without close study of the relevant agreements, it is often unclear whether a particular transaction does or does not impose on the credit-card issuer a legal obligation to reimburse the merchant who accepts the card (or card details) in payment.    [Back]

Note 8    See para 3.29 above.    [Back]

Note 9    See para 5.13 above.    [Back]

Note 10    The paper proposed the substitution of “false pretence” for “deception” for reasons summarised at paras 6.11 below. We now recommend, for similar reasons, that the requirement of deception be replaced by one of misrepresentation: see para 7.15 below.    [Back]