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URL: http://www.bailii.org/ew/other/EWLC/2002/276(9).html
Cite as: [2002] EWLC 276(9)

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PART IX

ABOLITION OF EXISTING OFFENCES

In this report we have recommended the introduction of two new offences. Any conduct which at present falls within one of the existing deception offences under the Theft Acts would fall within at least one of the new offences. The existing deception offences would therefore become redundant. It would be possible to leave them on the statute book, in the expectation that prosecutors would use the new offences only for conduct which cannot conveniently be charged as one of the existing offences. We believe, however, that this would merely exacerbate the complexity which is one of the main defects of the present law. In practice, moreover, prosecutors would be likely to charge the new offences in the majority of cases, out of uncertainty as to whether the use of the more specific offences posed any risk of unexpected technical difficulties. We do not believe it is sensible to retain offences which add nothing of substance to the rest of the criminal law.

9.2

Conspiracy to defraud is a different matter, since it clearly does embrace some conduct which does not involve deception and would not fall within any of the offences we recommend (or conspiracy to commit those offences). In Part IV we identified the following examples of potentially fraudulent conduct which does not involve deception:

(1) Making a secret gain or causing a loss by abusing a position of trust or fiduciary duty.

(2) Obtaining a service by giving false information to a machine.

(3) "Fixing" an event on which bets have been placed.

(4) Dishonestly failing to fulfil a contractual obligation.

(5) Dishonestly infringing a legal right.

9.3

Of these, (1) would fall within the new fraud offence, and (2) within the new offence of obtaining services dishonestly. (3) would usually fall within section 17 of the Gaming Act 1845; there may be some such cases which fall outside that section and ought to be criminal, but in that case the remedy is to amend the section, or to introduce new offences specifically directed at this kind of activity.

9.4

(4) and (5), on the other hand, represent a huge range of activities which is potentially criminal at common law but, in the absence of misrepresentation, wrongful non-disclosure or abuse of position, would fall outside the new offences we recommend. We accept that there may be a good case for imposing criminal liability in the case of some of these activities where, apart from conspiracy to defraud, no such liability currently exists. As far as we know, however, conspiracy to defraud is very rarely used in this kind of case. If it is thought that certain torts, breaches of contract or equitable wrongs should be criminal, legislation can be framed with reference to the particular kinds of conduct involved. To retain conspiracy to defraud on the ground that it might occasionally prove useful in such a case would in our view be an excess of caution. Since it is not practicable to identify all such cases in advance, it would mean that we could never be in a position to abolish conspiracy to defraud – unless we were willing to replace it with a general dishonesty offence, an option that we rejected in Part V above. The advantages of abolishing it, in our view, greatly outweigh any possible advantage that might accrue from retaining it alongside the new offences we recommend. We believe that those offences cover enough of the ground presently covered by conspiracy to defraud to make it unnecessary to retain that offence any longer.

9.5

This would not of course mean that conspiracy charges could no longer be laid in fraud cases. An agreement to commit an offence is a statutory conspiracy, contrary to section 1 of the Criminal Law Act 1977. There is no reason why the offences we recommend should be an exception to this principle. An agreement to commit either of the new offences would be a statutory conspiracy.

9.6

We recommend the abolition of all the deception offences under the Theft Acts 1968–1996, and of conspiracy to defraud. (Recommendation 5)