Clause 4 — Fraud by abuse of position

Orders of the Day – in the House of Commons at 1:45 pm on 26th October 2006.

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Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office) 1:45 pm, 26th October 2006

I beg to move amendment No. 1, page 2, line 22, leave out

'occupies a position in which he' and insert 'by reason of position,'.

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

With this it will be convenient to discuss amendment No. 2, line 22, leave out 'expected' and insert 'under a fiduciary duty'.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

We can probably dispose of these amendments, which continue a useful discussion that we had in Committee, in an equally brief period.

Amendment No. 1 is new and picks up on a point made in Committee by Mr. Grieve. We were considering the following phrase from clause 4:

"A person is in breach of this section if he...(a) occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person".

The hon. Gentleman made the interesting point that it is possible for the person who might be accused of such an offence no longer to occupy the position in question, but to retain a fiduciary duty on the basis of the position that he had occupied. The clause uses the phrase "occupies a position", rather than "occupies or has occupied", which would be a very cumbersome way of putting it. My amendment would replace that phrase with "by reason of position", which would enable the clause to apply not only to the holder of a position, but to a past holder, and thereby encompasses both without any ambiguity. I simply table it for the Solicitor-General's consideration.

Amendment No. 2 relates to a point that was debated in Committee and is not dissimilar to one tabled there by the hon. Member for Beaconsfield. I remain concerned about the interpretation of the phrase "is expected to", which, in the light of the Solicitor-General's explanation in Committee, extends beyond a fiduciary duty to some other expectation. However, we have not yet satisfactorily concluded in whose mind the expectation lies. Is it in that of the person who commits the putative offence, or in that of the person against whom the offence is committed? Is that expectation what a reasonable person might expect, or what a court might expect?

Although the Solicitor-General helpfully explained fiduciary duty in some detail in Committee, he did not convince me that he could offer examples that would not fall into the expanded definition of fiduciary duty as interpreted by the courts, but which would nevertheless constitute criminality that ought to be caught by this provision. In fact, a fiduciary duty is capable of a much wider interpretation than a strict contractual liability, for example. Indeed, it is already being interpreted by the courts in that way, so it would be a more precise term to use in this clause.

I tabled these amendments in an attempt to improve the Bill, rather than to in any way change its meaning. I think that my terms are more precise, but I look forward to the Solicitor-General's response.

Photo of Edward Garnier Edward Garnier Shadow Minister (Home Affairs)

Mr. Heath is entirely right—there was a full discussion in Committee on this clause and these concepts, and I commend to him and to the Solicitor-General the remarks of not only my hon. Friend Mr. Grieve but of my hon. and learned Friend Mr. Cox, who has extensive experience of dealing with fraud cases in the criminal courts.

It is neither necessary nor appropriate for me to offer a third explanation of the points that my hon. and learned Friend the Member for Torridge and West Devon made Upstairs. I fully understand the concerns of the hon. Member for Somerton and Frome about this clause, but I do not want to stand in the way of the Solicitor-General's giving us the Government's explanation.

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department

One of the criteria recommended by the Law Commission for the application of clause 4 was whether a person

"occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person."

Amendment No. 1 would alter the wording of clause 4 to refer to a person who "by reason of position" is expected to safeguard, or not to act against, the financial interests of another person. In our view, such a change would introduce an undesirable lack of clarity into the clause. The phrase "by reason of position" is not only inelegant but is less clear than the criterion of whether a person "occupies a position". I am not sure that there is a great deal of elegance in that phrase, either, but it is clearer.

I understand that the amendment's intention is to catch cases where the defendant no longer occupies the position in question, but it does not clearly express that intention. There is no policy problem here. A defendant will not escape prosecution for fraud by abuse of position, committed while he occupied the position in question, just because he no longer occupies the position at the time of his arrest or trial. It is true that he will not be prosecutable under clause 4 if he manages to abuse the position after he ceases to occupy it, but in any event, there are limits to how he could do that.

I accept that information obtained during the course of employment could be valuable, but, as I made clear in Committee, we expect breaches of confidentiality to be a matter of civil law. That will certainly be the case once the employee ceases to occupy his position, which must be right.

Clause 4 is designed to tackle financial crime. If a person no longer occupies a position where he is expected to safeguard another person's financial interests, how can he commit such fraud under the clause? He would probably need to commit another type of fraud—perhaps under clause 2—to access or exert influence over the person's financial interests. If he still has de facto access or influence, he surely "occupies" a position. That is one advantage of the way in which the clause is drafted in not being limited to those who have fiduciary duties.

Amendment No. 2 brings us back to our interesting discussions in Committee. Again, the Law Commission expressed a view. It said that although a fiduciary relationship was important,

"We see no reason, however, why the existence of such duties should be essential. This does not of course mean that it would be entirely a matter for the fact-finders whether the necessary relationship exists. The question whether the particular facts alleged can properly be described as giving rise to that relationship will be an issue capable of being ruled upon by the judge and, if the case goes to the jury, of being the subject of directions."

Amendment No. 2 would provide that clause 4 applies only if one person has a fiduciary duty to safeguard the interests of another. We are concerned that in some cases it might be difficult for prosecutors to prove the existence of that duty. While in most cases the clause will apply to circumstances where a duty clearly exists, there will be some cases where a formal fiduciary duty does not exist. These will arise particularly in personal and family relationships.

The great majority of those who responded to our consultations in 2004 supported clause 4, and some made comments that are pertinent to this debate. The Institute of Legacy Management, in welcoming clause 4, referred to the need to tackle the increasing financial abuse of the elderly. It told us that

"charities have noticed an alarming rise in estates where the testator's funds had been misappropriated prior to death".

It cited as a typical example the case of a tradesman—perhaps a milkman—who, having helped an old lady with odd jobs, gains increasing influence with her and misappropriates funds from her account.

The north of England trading standards group said that in most cases where vulnerable elderly people were deprived of property unlawfully, the perpetrators were relatives or workers who were supposed to be supporting the victim's independent lifestyle. Many elderly people are looked after by helpers who do not have formal powers of attorney but take various degrees of responsibility for their finances. Sometimes it is not entirely clear where the fiduciary relationship begins and ends. Very few people abuse their position, but it would not be right to create a technical defence whereby those who had done so did not fall within the full ambit of a definition of a fiduciary relationship and used technical means to evade the appropriate response of the courts and the criminal justice system. One of the aims of the Bill is to remove some of the technical get-outs and defences that have been used under the Theft Acts and other previous legislation.

I can see no problem in fact-finders determining when one person occupies a position in which he is expected to safeguard the interests of another. Furthermore, in most cases the crucial issue will not be the relationship between the defendant and the victim but whether the defendant's actions were dishonest. It seems sensible and desirable to leave the wording of clause 4 as it is, and I hope the hon. Gentleman will feel able to withdraw his amendment.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office) 2:00 pm, 26th October 2006

I am grateful to the Solicitor-General. I have listened with great care, in Committee and today, to what he has said about fiduciary duty. I entirely understand his wish not to have a provision that is capable of exploitation by an unscrupulous defence. However, I do not understand, because he still has not explained it to my satisfaction, which cases he fears would not be caught by fiduciary duty. He mentioned relatives, who would clearly be construed by any court to have a fiduciary duty to the person from whom they were extracting money.

The Solicitor-General gave the example of a milkman who takes money from an elderly person. That is called theft, and it is dealt with by the Theft Acts—it does not need to be covered by the Bill. If the milkman is expected to safeguard the interests of his customers—I am not sure that he is—there is a fiduciary duty. If such a customer has charged him with looking after their investment portfolio in his capacity as milkman—unlikely, but not impossible—they would feel that he has a fiduciary duty. I do not understand the distinction.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

However, I am not prepared to argue about it any longer, because it is not getting us anywhere. The provision is not inadequate, merely loosely worded.

On the other matter, the Solicitor-General has taken us further forward by saying in terms that the provision does not apply to someone who had left the position in which they were expected to provide a safeguard. In other words, it deals with somebody who is in position at the time of the offence and does not apply to someone who is no longer holding that position. That is clear enough, although I do not necessarily support it, because I can envisage examples involving a person who has held a position of trust and then abuses it having left that position. Such a person is as guilty of a fraud as they would have been had they retained it. Having said that, I beg to ask to leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Order for Third Reading read.

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department 2:07 pm, 26th October 2006

I beg to move, That the Bill be now read the Third time.

The Fraud Bill is a small Bill but it is intended to do a big job. It aims to deliver an effective legal structure for tackling the growing threat posed by fraud. Fraud affects us all. It causes long-term damage to UK businesses, wrecks ordinary lives by destroying jobs, savings and pensions, and hits the pockets of every citizen of this country. An effective framework for tackling fraud is therefore crucial to citizens as well as to the economy. The Government's strategy is threefold: first, to modernise the law;
secondly, to improve the investigation of fraud;
and thirdly, to ensure that the prosecution and court procedures are efficient and effective. The passage of the Bill will complete the first element of that strategy by ensuring that the criminal law on fraud is fit to meet the challenge posed by the sophisticated techniques deployed by today's fraudsters.

Before concluding our debates on the Bill, as I hope that we can today, it is appropriate to remind ourselves of how we reached this stage. In 1998, the Government asked the Law Commission to review this area of law. It conducted a careful review which led to a final report in July 2002. It identified two key problems. First, deception offences in the Theft Acts were too specific, which made them vulnerable to technical assaults by defence lawyers, who would argue that a particular behaviour fell just outside the definition of the offence charged, or that the defendant had been charged with the wrong kind of deception—in other words, "It's all very technical so we should find them not guilty." Secondly, deception was an essential ingredient of the offence, which required a victim to be deceived, but the increasing use of technology in commercial activity renders this approach artificial and potentially troublesome in legal terms.

The Law Commission recommended a new general offence of fraud, with two significant changes: first, to focus on dishonesty rather than deception; and secondly that proof of gain is no longer essential to prove the crime. It will be enough that the offender intends to make a gain for himself or to cause a loss to another, or to expose another to a risk of loss.

The Bill sweeps away the complex array of deception offences and establishes a general offence of fraud with three limbs. Underlying each limb are two basic requirements that the defendants' behaviour is dishonest and that they intend to make a gain or loss for another.

The first limb is fraud by false representation. The extra element is that the offender must make a false representation knowing that it is or might be false or misleading. The second limb, fraud by failing to disclose information, requires the extra element that the offender fails to disclose information that he has a legal duty to disclose. The third limb, fraud by abuse of position, requires the extra element of abusing a position of responsibility to commit fraud.

In addition to the general offence of fraud, the Bill introduces several other offences, as proposed by the Law Commission. It contains a new offence of obtaining services dishonestly. That replaces the current offence under the Theft Act 1968 of obtaining services by deception, which poses problems as it requires deception.

Clause 6 introduces an offence of possessing articles for use in or in connection with the commission or facilitation of a fraud. It draws upon the existing offence in section 25 of the Theft Act. Clause 7 introduces a higher level offence of making and supplying articles for use in fraud. Clause 9 implements a Law Commission recommendation that the existing offence of fraudulent trading in the Companies Act 1985, which currently applies only to companies, should be "extended to noncorporate traders", such as partnerships or sole traders.

Those offences will replace provisions in our law that are in daily use. It is therefore important that we get the changes right.

The Bill is the result of an extensive review process, started by the Law Commission and continued by the Government, following full public consultation on the proposals. The consultation showed that the Law Commission report was generally widely welcomed, and we were grateful for the thoughtful contributions that were made. The Government listened carefully to the views expressed and, when appropriate, made changes.

We have already discussed the one proposal that caused some controversy—conspiracy to defraud—but I shall not go over that again, except to reiterate that we will reconsider it in three years.

Photo of Edward Garnier Edward Garnier Shadow Minister (Home Affairs)

Another controversy led to the Attorney-General and the Solicitor-General giving an assurance that there would be no resiling from the undertaking not to remove jury trials from fraud cases except through a separate, stand-alone measure, and telling us that a review and consultation was taking place about that. Will the Solicitor-General briefly give the House an up-to-date account of the Government's thinking on that?

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department

The Government appreciate that we need to consider introducing a stand-alone Bill to tackle the way in which some fraud trials have been conducted. We believe that it is important to have the ability to deal with the few non-jury trials in serious fraud cases. We intend to revert to that at some stage and introduce an appropriate measure. We have made it clear that we want to have full discussion here and in the other place about that.

There is a range of steps that we can take to combat fraud. We have provided considerable extra resources for the Serious Fraud Office and the City of London police to tackle fraud; we have set up a wide-ranging review of fraud to examine the UK's long-term response to it, and we plan to introduce a Bill at an appropriate stage to deal with the way in which the courts tackle the most serious cases of fraud.

However, the Bill will deliver one vital component to combating fraud—an effective criminal law. It will remove the fundamental deficiencies in the existing law and ensure that it can capture the true breadth of fraud. The Bill is complete and comprehensive. It will provide us with a criminal law fit for meeting the challenges posed by fraudsters today. It is a measure that is eagerly awaited by stakeholders. It should improve the prosecution process by reducing the chance of offences being wrongly charged. It should provide greater flexibility to keep pace with the use of technology in crimes of fraud.

I commend the Bill to the House.

Photo of Edward Garnier Edward Garnier Shadow Minister (Home Affairs) 2:14 pm, 26th October 2006

On Second Reading in the other place, Lord Lloyd of Berwick said:

"My Lords, it seems to me that this is one of the best Bills to have come out of the Home Office for many a long year."—[ Hansard, House of Lords, 22 June 2005; Vol. 672, c. 1664.]

I would not go that far but we broadly welcome the measure, which deals with a complicated subject. At Second Reading I said this was the 53(rd) criminal justice Bill since 1999. This is the best of a bad bunch and stands comparison with them all. It is, but for two matters, a largely uncontroversial Bill. We are dealing with criminal intent and dishonesty, not bad manners or sharp practice, and the way in which the cases are tackled by the Serious Fraud Office and the Crown Prosecution Service

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. I must inform the House that there has been a failure in the sound system. In the meantime, I wonder whether the hon. and learned Gentleman would raise his voice.

Hon. Members:

He is not paid to shout.

Photo of Edward Garnier Edward Garnier Shadow Minister (Home Affairs)

For a moment, I allowed myself to be fooled into thinking that people were coming into the Chamber to hear my speech. I have a horrible suspicion that it has more to do with what the Minister for Europe and my hon. Friend Mr. Brady will be saying in a moment rather than what the Solicitor-General and I have been discussing. None the less, I will shout as best I can—although, as hon. Members have said, I do not get paid for shouting.

I was in the middle of a particularly purple passage of my remarks, but you have successfully completely thrown me off my train of thought, Madam Deputy Speaker. I will rush back to my handwritten notes and, with my new glasses on, endeavour to get back to the matter in hand.

The common law conspiracy to defraud aspect is perhaps one area of controversy, but happily that has been settled between the parties and we look to the Government to come back to the House in a few years' time with a report on the conduct of the general common law conspiracy to fraud aspect of the Bill.

I was also pleased to hear that the Government are holding to their undertaking that they will not resile from their promise not to introduce section 43 of the Criminal Justice Act 2003, which will in some circumstances dispense with the jury in fraud trials, and to return to the House with a discrete Bill dealing with that. Whether that is in the Queen's Speech in November or in some other Queen's Speech we will await with interest.

This is an empty House but despite its brevity the Bill has important aspects that resonate positively. [Interruption.] When I used the expression, "resonate positively", I woke up not only Keith Vaz but myself. One of the Dukes of Devonshire who sat in the other place in the late 19th century had a dream that he was making a speech in the House of Lords, and he woke up to find that he was.

This is a serious subject on which I must not become too flippant by digressing. I congratulate the Law Commission and, as I have said, those officials who worked with the Law Commission and the Government, whether it was in the Home Office or whether it was in the Law Officers' Department, on producing a Bill of this calibre. I commend the Bill, as it now stands, to the House.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office) 2:20 pm, 26th October 2006

I shall start where Mr. Garnier finished by supporting his commendation of the Law Commission and all those who have worked on the Bill. I include in that not only the Solicitor-General and his team, but those in another place who did the hard work before we started the Bill. That did a great deal to ensure that the Bill was in good order, so we had little to do in Committee and on Report. This is a good Bill, and I support it wholeheartedly.

Fraud is an extraordinarily important matter. I have long felt that we have not had adequate safeguards in place in this country to deal with white-collar crime or even minor fraud. As the Solicitor-General has said, there are three elements to making sure that the system is robust. The first is to get the legislation right; the second is to get the investigation right; and the third is to get the prosecutions and legal procedure right. The Bill is significant, although some areas of the law are still weak. The review will provide us with further food for thought in ensuring that we have an adequate battery of legislation in statute law.

I am less sanguine that we have got the investigation side of things right. I have listened to the Solicitor-General on the additional resources for the Serious Fraud Office and the City of London police. As he knows, however, there have been huge deficiencies in the successful investigation and prosecution of fraud in recent years. Our provincial police forces, which are very good at many things, are very poor in that particular area. They do not understand fraud, which they find difficult to investigate effectively. Too often, I have seen minor fraud in particular not being investigated properly, because the resources are not there. We must address that point nationally and locally to ensure that the resources are put in and that the expertise is available to do the job effectively. This is not a derogatory comment about the police, but it is sometimes beyond the normal competence of a police officer to deal with specific financial and accountancy issues, which are beyond the training of most police officers, most members of the public and most Members of Parliament. That is why we need dedicated resources.

On the prosecution of fraud, I do not accept that we need to move away from a jury-based system for the prosecution of serious fraud, and if the Solicitor-General intends to introduce a Bill in the next Session of Parliament that does that, we will resist it. Looking across the Atlantic, some of the largest fraud cases ever prosecuted—the Enron prosecutions—were put before a judge and jury in a Texas court. Why should it be thought that a British jury is incapable of assessing the facts in a case of fraud, when a Texas jury can deal perfectly adequately with such matters? It seems to me that there is no difference and that the Government are therefore barking up the wrong tree in trying the remove the jury element. There are ways in which we can facilitate the jury consideration of fraud trials and manage cases better, but those areas have not been addressed properly.

As far as this Bill is concerned, I am satisfied that it is good legislation, and I commend it to the House.

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department 2:25 pm, 26th October 2006

With the leave of the House, Madam Deputy Speaker.

On Texas juries, the system is different in Texas for all sorts of reasons. One of those reasons is the element of plea bargaining in fraud cases, which is not carried out in the same way in our jurisdiction.

I close by thanking all those who have worked hard to make the Bill possible. I thank Opposition and Government Members for the constructive nature of the debate throughout. I thank the Chairmen of the Committee, Mr. Amess and my hon. Friend Mr. Jones, and the members of the Committee for their exemplary work. I thank my Parliamentary Private Secretary, my hon. Friend Mr. Cunningham, for his unstinting assistance. I also thank the officials, lawyers and staff of the House, who have worked extremely hard to bring the Bill to this stage. The Attorney-General and I led on this Bill, but the Home Office took responsibility for policy and most of the background work was done by Home Office officials, whom I thank. I also thank Mr. Justice Wilkie, who was then a law commissioner and who produced the Law Commission report to which we are indebted.

The Bill has a big job to do, and we have worked hard to send it into law in good shape. I hope that it works to deter those who are tempted by fraud, and if it fails to do so, I hope that it assists in convicting, imprisoning and punishing those who commit fraud. I commend the Bill to the House.

Question put and agreed to.

Bill accordingly read the Third time, and passed without amendment.