Clause 4 — Fraud by abuse of position

Part of Orders of the Day – in the House of Commons at 2:00 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) 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.