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)
That is true, although I should have thought that a judge would be capable of explaining to a jury what a fiduciary duty is. In the course of a criminal trial, if a fiduciary duty appears in the relevant statute, the judge ought to be in a position to explain that to the jury. Furthermore, a judge would also be in a position to rule, on a submission of no case to answer, whether the prosecution had laid the basis of whether a fiduciary duty existed.
The difficulty of the present wording of the clause is that, other than leaving the matter to a judge on a ruling of no case to answer, the case is pretty much open to the jury. The old saying, when I was first at the Bar, was that perhaps we should get rid of all forms of criminal code and simply present facts to a jury, which would be allowed to say on its verdict “in order”, “out of order” or “totally out of order.” There is a sense that that is what we are doing with the clause: a set of facts is put to a jury and it is asked, “Is it in order, out of order or totally out of order,” and on that depends guilt or innocence. That worries me.
As I said earlier to the Solicitor-General, hopefully the criminal code is in accordance with moral principles. However, many people are allowed to behave in an immoral fashion and still not face criminal sanction. The wording of the clause leaves a grey area. Let me give an example, which has just come into my head, of the sorts of problems that might arise.
Earlier, I mentioned buying and selling. A person is helping his aged aunt with her affairs, in the course of which she gives him access to all her private papers. From those, he discovers that a bust sold out of the family 20 years before in a house sale was made by Bernini. Nobody knew about that at the time, but it is clear in the family papers to which he has been given a degree of access by his aunt. That bust is now for sale in the antique shop down the road, so he zooms down there; nobody knows that it is a Bernini bust and he buys it at a vastly discounted rate—it is the bargain of a lifetime. He does not tell his aunt; he just takes it home and puts it in his house.
Did that person abuse his position? After all, his aunt allowed him access to her papers. He took advantage of the information that he gleaned from those papers and made use of it for his own benefit. Hon. Members must understand that the aunt was not ga-ga; she just asked him to help her. To what extent would he be caught by clause 4? One might consider what he did to be morally reprehensible, but was it a crime?
I have picked one example; we could pick dozens of others. Mine illustrates my slight anxiety that we might be casting our net too wide on the waters, the consequence of which is to create uncertainty. Of course, Parliament might wish to modify the behaviour of human beings, which is not necessarily an undesirable objective, but we must be careful about making sure that the scope of the criminal law in such an area is properly restricted. Otherwise, as always happens, we encounter the law of unintended consequences.
I have given an illustration, and I hope that the Solicitor-General will discuss the issues that it raises so that the matter can be explored further. It is one thing for somebody to be entrusted formally with something, but are we really going to say that taking advantage of information gleaned in the course of a relationship of friendship, without any formalised trust being involved, is a criminal act and that we wish it to fall within the scope of clause 4? That is the difficult dividing line about which we must think.
I emphasise to the Solicitor-General that I have not reached a conclusion on the subject; I am feeling my way. I suspect that the Bill, having gone through the other place, will probably go on to the statute book in its present form. However, I hope that we can reflect on the serious and difficult issues that I have raised through my amendment before we simply rubber-stamp clause 4.