Clause 4
Fraud Bill [Lords]
11:00 am
Dominic Grieve (Shadow Attorney General & Shadow Spokesman On Community Cohesion, Law Officers (Assist the Home Affairs Team); Beaconsfield, Conservative)
As I indicated to the Solicitor-General earlier, the clause has caused me and, I suspect, some of my hon. Friends and others in the House, a little more trouble than previous clauses. I should make it clear to the hon. and learned Gentleman that the problem does not lie in the principle behind the clause: it is generally agreed that if a person is in a position of trust he owes a duty to the person who has entrusted his or her affairs to him not to abuse that position. That includes not abusing the position
“to make a gain for himself or another, or...to cause loss to another or to expose another to a risk of loss.”
That is a well established principle. Barristers, solicitors, accountants know well the underlying principles behind it, and if people have been abused, civil remedies lie against those who have abused their position in that way. Translating that into the criminal law is, on the face of it, perfectly reasonable.
The greater problem comes in defining who is in a position in which he is
“expected to safeguard, or not to act against, the financial interests of another person”.
Who are we talking about? Historically, we have, I think, been talking about people who, in the old-fashioned parlance—that is the nature of the amendment that I tabled—are “under a fiduciary duty” to another person to act in their best interests. The Government have chosen—the Solicitor-General made that clear on Second Reading—quite deliberately to move away from that description to one that, on the face of it, is much looser. Such a person is defined as one who
“occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person”.
Who is to make the judgment on who occupies a position in which they are
“expected to safeguard, or not to act against, the financial interests of another person”?
The law should, as far as is possible, contain a degree of certainty. The way in which clause 4 is worded gives me cause for concern, because it is by no means clear to me who is the person referred to in clause 4(1)(a). If it is an accountant or a solicitor, it presents no problem. I suppose that if we were to move and say somebody who has been entrusted with the affairs of a near relative by a power of attorney or a continuing power of attorney, we would not think there was any difficulty, either. But what happens in those myriad informal relationships that arise and on which human relations depend? Where is the dividing line to be drawn in respect of a person occupying a position in which he is expected to safeguard another’s interests?
There is no list. It is not as if Parliament is being asked to be prescriptive. There is an underlying suggestion that the definition will be left to develop on a case-by-case basis and will gradually be evolved over time by the courts and, presumably, by juries in their verdicts and by judges on submissions. I am slightly anxious about that. It ought to be possible for us to define things more tightly.
My amendment would insert the notion of fiduciary duty, which is well understood, but I should like to make it clear to the Solicitor-General that it is in the nature a probing amendment to provoke debate. I appreciate that there may be other ways to approach the matter.