Law Reform

Response to the Home Office Paper FRAUD LAW REFORM ? Consultation on Proposals for Legislation, May 2004

PUBLISHED May 1, 2004

The LCCSA welcomes the creation of a new statutory offence of fraud and has long argued that the definition of any such offence should include an element of dishonesty, which we think will particularly assist jurors in considering their verdicts. However, we have serious reservations as to the proposal that the new offence be split into the 3 separate constituent parts as defined. We fear that the combined definitions are overly restrictive in that behaviour normally considered to be fraudulent may well fail to fall within one of the three components whilst, paradoxically, the individual elements are too widely defined. Our analysis of each of the 3 limbs of the proposed new offence has led us to conclude that they cover many types of behaviour that, whilst of dubious moral probity and possible civil torts, have not been considered fraudulent in the past. This remains a concern despite the need for the Crown to prove that the defendant acted dishonestly. The LCCSA also has serious reservations that within the proposals a theme emerges whereby criminality is defined more by the intent of the perpetrator than the effect upon the victim. So, for example, a fraud by false representation may be committed by a defendant using a stolen credit card in a shop even if the shop assistant is not deceived because s/he ?is not necessarily interested in whether the defendant has authority to use it ??. Not only do we argue with the factual scenario as presented here (it is our experience that, when questioned, shop assistants will invariably confirm that the card would not have been accepted if it was known or suspected it to have been stolen), but we feel that the proposal focuses the criminality on the intent (mens rea) of the offender without paying sufficient heed to the effect (actus reus) of his/her actions.