Practice and Procedure

City lawyers attack new Fraud Act

PUBLISHED January 23, 2007

Lawyers have raised serious concerns about the workability of the new Fraud Act, just seven days after it came into force.

On the whole the Fraud Act 2006 has been welcomed by the legal profession as, for the first time, most offences deemed as fraud are under one statute.

Two of the new offences - fraud by failing to disclose information and by abuse of position - have, however, raised more than one lawyer's eyebrow.

Freshfields Bruckhaus Deringer litigation partner Paul Lomas feels that, although having a clear and concise definition for the crime is a good thing, 'fraud by failing to disclose' is unclear.

"The act appears to go beyond Derry v Peek [1889], where misleading is not seen as fraudulent," explained Lomas. "It opens up the question of what happens when there are questions for companies such as security firms, where they're under an obligation to the client not to disclose information."

Fraud partner at Allen & Overy Mona Vaswani agreed that the act does a good job at pulling together the various offences that constitute fraud, but has concerns over 'fraud by abuse of position'.

"The act does not clearly define who is in such a position, though it is likely to be anyone acting in a fiduciary capacity, " said Vaswani. "This may well result in practical problems as who is caught by the act."

Vaswani added that the act does not abolish the common law offence of 'conspiracy to defraud'. She sees this as problematic, as the police often use this to push fraud cases through and so could side-step the new legislation.

John Smart, fraud partner at Ernst & Young, also raised serious doubts over how useful the act will be in practical terms.

Smart said: "It's likely to have little immediate effect because it's main purpose is to speed fraud cases through the courts and does not address the major bottleneck caused by a lack of police investigation resources.

"The increased scope of sentencing powers available under the act will have only a marginal deterrent effect, because white-collar fraudsters know that the level of detection and prosecution continues to be low."