The Law Commission

THE LAW COMMISSION

Report on a reference to the Law Commission under section 3(1)(e) of the Law Commissions Act 1965

THE EFFECTIVE PROSECUTION OF MULTIPLE OFFENDING

To the Right Honourable the Lord Irvine of Lairg, Lord High Chancellor of Great Britain

PART I

INTRODUCTION

1.1      In April 1999 the Law Commission published a consultation paper entitled Legislating the Criminal Code: Fraud and Deception (Consultation Paper No 155). It was prompted by a reference from the Home Secretary who asked us to consider the law of fraud in general, and in particular the question "whether a general offence of fraud would improve the criminal law". A report dealing with most of the issues raised in that consultation paper was published on 30 July 2002. That report does not, however, address the issues raised in the latter section of Part VII of the consultation paper, relating to the effective prosecution of multiple offences of fraud.^[1] We had invited views on the possible use of the concept of a single fraudulent scheme as a means of solving some of the problems which had recently emerged in trying and sentencing those whose fraudulent offending comprised the repeated commission of identical or similar offences on a scale which made it impossible for each offence to be the subject of a count on the same indictment or information. It is with those issues that we now deal, in this report.
1.2      We are conscious of our statutory duty to keep the law under review with a view to its systematic development and reform. We have, therefore, asked ourselves whether the problems identified in relation to the prosecution of multiple offences of fraud are faced in respect of any other types of multiple offending. We have concluded that some of these problems arise in a limited number of offences other than fraud. Consequently, we have decided to make recommendations which will address the problems which arise in respect of these offences.^[2]
1.3      Our work on the effective prosecution of multiple offending has coincided with the publication of the Auld Review^[3] of the operation of the criminal courts and the Government's response to it in the White Paper, Justice For All.^[4] Any recommendations that we make must be capable of fitting in with the court system that is likely to operate in the near future. We intend to feed our recommendations directly into the Government's work to develop the White Paper into legislative form. In order to facilitate this and to avoid duplication of resources at this stage we do not, on this occasion, annexe a Draft Bill to this report.
1.4      In the Fraud Consultation Paper,^[5] we suggested that it should be possible to make use of the concept of a scheme to prosecute repetitious fraudulent conduct which would in any event be criminal (under one or more of the existing deception offences). We suggested that it should be possible to charge a single criminal enterprise, involving the commission of two or more identical or similar offences, as one continuing offence, to be described as a "scheme". The whole enterprise would be regarded as constituting a single substantive offence. ^[6]
1.5      Although a majority of respondents to the Fraud Consultation Paper who addressed these issues were attracted by the idea of the development of an offence which would catch the fraudulent scheme, serious concerns about the practicality and likely effectiveness of this proposal were identified by both supporters and dissenters.
1.6      We were persuaded by these concerns to re-think our proposal. We consulted these respondents further, by means of an informal consultation document in July 2000. We asked whether one way ahead might be to construct an offence which caught "a course of conduct" or which penalised a certain "activity". Once again, we were persuaded by respondents that, save for certain context specific offences concerning social security benefits and fraudulent trading,^[7] the problem cannot adequately be addressed in that way.^[8]
1.7      We were forced to recognise that the nature of the problem is such that there is no single solution which will address all of the difficulties. We formulated two further proposals on which we consulted in our seminar paper in February 2002. The proposals presented in that paper were discussed at a Law Commission seminar^[9] and were favourably received by many respondents. Arising from this most recent consultation, we make two new recommendations: these will be discussed under the headings "a compound allegation" and "a two stage trial procedure". In addition, we make a recommendation for the expansion of fraudulent trading to encompass the non-corporate fraudulent trader. In view of developments in social security legislation which have taken place, there is no need for us to make another recommendation, which we foreshadowed in earlier consultations, for a context specific "activity offence" in connection with fraudulent claims for benefit.^[10] Thus, we are making three discrete recommendations which, depending on the context, will provide prosecutors with a series of new approaches to take when prosecuting multiple offences and which will, we believe, enable certain cases of multiple offending to proceed through trial to sentence more effectively than has, to date, been possible.
1.8      The structure of this report is as follows. We

outline the nature of the problems faced in relation to the effective prosecution of multiple offences, in particular, offences of fraud and theft;^[11]

summarise the present law relevant to these problems;^[12]

consider the extent to which the decision in Kidd creates any significant practical difficulty in cases other than multiple fraud;^[13]

set out our solutions for dealing with the problems and make recommendations with our supporting arguments;^[14]

give our response to issues arising from our recommendations,^[15] and

set out our recommendations.^[16]

Note 1    Paras 7.60 – 7.74. See consultation issue no 10 in Part X of the Consultation Paper where we invited views on the following: [w]hether, where a single fraudulent scheme involves the commission of two or more deception offences, the carrying out of that scheme should be regarded as a single offence, and it should therefore be possible to charge it in a single count of an indictment (issue no 10).    [Back]

Note 2    Offences such as theft, counterfeiting, corruption and internet child pornography encounter problems of the type addressed earlier in relation to fraud.    [Back]

Note 3    Auld LJ, Review of the Criminal Courts of England and Wales (2001).    [Back]

Note 4    CM 5563.    [Back]

Note 5    Consultation Paper No 155.    [Back]

Note 6    See n 1 above, for detail of these consultation issues.    [Back]

Note 7    Existing activity offences may be found, for example, in the Social Security Administration Act 1992, s 111A(1) and in the Companies Act 1985, s 458.    [Back]

Note 8    The difficulties with a course of conduct offence would be particularly acute where the conduct comprised a series of similar offences on which the judge would have to pass sentence. If all the jury had to be satisfied of to convict of the course of conduct offence was that the offending took place on, say, at least three occasions as part of a course of conduct, then the judge, in passing sentence, would be unaware of the view the jury had taken of the extent of the offending beyond the minimum of three.    [Back]

Note 9    The seminar was attended by about forty delegates from bodies including the SFO, the CPS, the DTI, Customs and Excise, academia, the judiciary, the police, the Home Office, the Lord Chancellor’s Department, the Magistrates’ Association, the legal profession, the police and Justice. Others from these groups responded in writing.    [Back]

Note 10    See para 5.6.    [Back]

Note 11    See Part II.    [Back]

Note 12    See Part III.    [Back]

Note 13    See Part IV.    [Back]

Note 14    See Parts V – VIII.    [Back]

Note 15    See paras 7.71 – 7.84.    [Back]

Note 16    See Part IX.    [Back]