Clause 6
Fraud Bill [Lords]
4:00 pm
Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)
Welcome to the Chair, Mr. Jones. Hopefully we will make some brisk progress today under your chairmanship. I am sure that we will all have an interesting debate on some of the clauses.
I detect some difference in view between the Opposition parties. The Conservatives seem to want a more specific intention drawn into the clause, whereas the Liberal Democrats want a broader, or general intention of the sort that the Government favour. The objective of the Liberal Democrats seems to be to insert into the clause that which we believe is already there by case law. The view of the Conservatives, unless I have misinterpreted it, is to be much more specific about the nature of the intention.
We have been living with an offence worded in the same way as clause 6 for nearly 40 years. That offence is in section 25 of the Theft Act 1968, which applies not only to burglars but to those going equipped to commit a cheat. A cheat is defined as a crime of obtaining property by deception under section 15 of the Theft Act. The years since 1968 have provided case law on the provisions, the most important of which for our present purposes is Ellames, which I mentioned on Second Reading and is referred to in the explanatory notes.
I will be a bit broader than the explanatory notes in identifying some of the issues here, as that may be helpful to the Committee. Mr. Justice Brown said during the Ellames case:
“In our judgment, the words in section 25(1) of the 1968 Act: ‘has with him any article for use’ mean ‘has with him for the purpose’ (or ‘with the intention’) ‘that they will be used’. The effect of section 25(3) is that if the article is one ‘made or adapted for use in committing a burglary, theft or cheat’, that is evidence of the necessary intention, though not of course conclusive evidence. If the article is not one ‘made or adapted’ for use, the intention must be proved on the whole of the evidence—as it must be in the case of an article which is so made or adapted, if the defendant produces some innocent explanation. We agree with the learned authors of Smith and Hogan: Criminal Law...that section 25 is directed against acts preparatory to burglary, theft or cheat”—
and that questions of Mr. “D’s”, the defendant’s—
“knowledge of the nature of the thing can hardly arise here, since it must be proved that he intended to use it in the course of or in connection with”
the burglary, theft or cheat
“and that the mens rea for this offence includes ‘an intention to use the article in the course of or in connection with any of the specified crimes”.
He continued:
“In our view, to establish an offence under section 25(1) the prosecution must prove that the defendant was in possession of the article, and intended the article to be used in the course of or in connection with some future burglary, theft or cheat. But it is not necessary to prove that he intended it to be used in the course of or in connection with any specific burglary, theft or cheat; it is enough to prove a general intention”—
I think that is the important phrase here—
“to use it for some burglary, theft or cheat; we think that this view is supported by the use of the word ‘any’ in section 25(1). Nor, in our view, is it necessary to prove that the defendant intended to use it himself”—
which is the point that the hon. Member for Somerton and Frome (Mr. Heath) made—
“it will be enough to prove that he had it with him with the intention that it should be used by someone else.”