Clause 6
Fraud Bill [Lords]
4:00 pm
David Heath (Shadow Leader of the House of Commons & Shadow Cabinet Office Minister, Cabinet Office; Somerton and Frome, Liberal Democrat)
I welcome you to the Chair of the Committee this afternoon, Mr. Jones. I cannot claim to have made more than introductory comments on the group of amendments under consideration during this morning’s sitting, so I will reiterate.
The clause, as the Committee will recall, deals with the possession of articles for use in frauds. The issue is whether there should be an express intent in the clause. There is no mens rea provision at the moment. Interestingly, in clause 7, there is such a provision, so there is a difference between the two clauses. The only thing that might be construed as intent is the importation of the form of words from the Theft Act 1968:
“for use in the course of or in connection with any fraud.”
I understand that that has been construed to imply intent. It is certainly not explicit and it requires interpretation.
The question is whether we should make it absolutely explicit that the article in question should be in the possession of the person with a clear intent to commit a fraud. The hon. Member for Beaconsfield (Mr. Grieve) has already moved amendment No. 5, which would insert the word “intended” after “article”, so the clause would read
“any article intended for use in the course of or in connection with any fraud.”
As I intimated to him in an intervention, my difficulty with that wording is that an article may be intended for use in fraud but by a different and separate person from the person who is carrying the article or has control of it. So I am not sure that the amendment specifically addresses the issue that we wish to raise.
In amendment No. 9, I propose an alternative form of words, which makes it clear that the person who is guilty of the offence has the article in his possession or under his control and intends it to be used in the course of, or in connection with, fraud. That makes the connection between possession and intent absolutely explicit and, I think, improves the wording of the clause.
Amendment No. 10 would make the connection still more explicit. I understand that the Solicitor-General may say that it is better to have conformity between the two pieces of legislation, so that they are expressed in the same terms. I think that “in furtherance of” is better than “in connection with” because there are many items that could be used in connection with fraud but are not intended for use in a fraud. A printer on which counterfeit documents are produced might be an article that is used in connection with fraud but there may be no intent to do that, whether implicit or explicit, in possessing that printer. The words “in furtherance of” make it clear that there is a causal relationship and one of intent between possession and use in the prosecution of a fraudulent or dishonest act. I commend that amendment to the Committee.
Amendment No. 11 is perhaps a counter-balance to what I said earlier. If it is clear that the intent must be proven by the prosecution, it seems to be entirely reasonable that the provision should not require that the article for use in the fraud is to be used by the self-same person. What I am suggesting is that, by inserting
“which he intends to be used”
and adding
“carried out by him or any other person”
we will retain the sense by which an article might be carried by one person, to be used by another, but we insert the clear requirement for intent to be proven.
The clause as currently worded is capable of being construed in the way that I want it to be construed, but it is not unambiguous. My amendments would strengthen the provision, make the intent clear, and to a considerable degree bring clause 6 into line with clause 7, where the intent is clearly stated.