Fraud Bill [HL]

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. I did not read the Law Commission report when it was first published in 2002 but I have read it since. It seems to me that it is a model of what such a report should be. It is very well researched. It is very well argued. It exposes with great clarity the many defects in the existing state of the law. Above all, it contains a draft Bill; so much so that I sometimes think that all we actually need to do is to compare the draft Bill in the Law Commission report with the Bill which is now before the House. That is all that I have done. That brings me to the government response to the Bill, which again is excellent. I obtained it this morning by a miracle—a miracle for me—on the Home Office website. It seems to me again a model of what a government response to such a report should be. It suggests a number   of small changes: improvements in Clauses 2(2) and 3(1) and in the omission of the word ““secretly”” in Clause   4(1)(b), with all of which I would agree. All that is to the good. However, as Horace, I think, says—it is usually Horace:"““Nihil est ab omni parte beatum””." There is a flaw, and the flaw is the one which the noble and learned Lord the Attorney-General has already foreseen, and it is one which has been independently foreseen by three previous speakers: the failure to abolish the common law offence of conspiracy to defraud—as strongly recommended by the Law Commission. I say at once that I have an instinctive dislike, and I think that many judges have, of these catch-all offences such as conspiracy to defraud. Of course, as the noble and learned Lord the Attorney-General has pointed out, it makes it easier for prosecutors, but that surely is the whole danger. It seems to me that offences of such generality, and so amorphous as conspiracy to defraud, offend against one of the more fundamental principles of our judicial system: the principle of legal certainty. How can anyone know whether they are guilty of a conspiracy to defraud until it is too late as far as they are concerned? So I urge the Government to think again on that point. There is a practical argument. We now have good new offences which I greatly welcome. Surely it ought to be a working rule for the Government that for every new offence that they create they should repeal at least two old offences. Here they have a chance to repeal the old common law offence of conspiracy to defraud, and I hope that they will think again before the matter comes to Committee. There is a very strong recommendation in the report on that, but it is the weakest point in the Government’s response. It said that there were differing views as to whether there should be a conspiracy to defraud. There was a reference to a case in the House of Lords called Hollinshead, which is not a shining example of English jurisprudence. Indeed, it underlines the danger of having an offence such as that still as part of our system. If no one else does, and I suspect others will, I will certainly wish to table an amendment in Committee to restore the views of the Law Commission on that point. I would be willing to agree to the compromise proposal, as referred to in the Government’s response, that we should abolish common law conspiracy now, but perhaps not bring that part of the Bill into force until we have seen how the rest of the Bill works. That seems a sensible compromise. The only other point that I want to make is on the concept of dishonesty. I am glad that dishonesty has been chosen as the basis of the new offences. I am indeed glad that there has been no attempt to define dishonesty in the Bill, nor should there be. At this point, I declare an interest as the author, or at any rate the part author, of the decision in Ghosh. When Ghosh came before the court, I was being led by the Lord Chief Justice, the noble and learned Lord, Lord Lane. He takes the credit, although I may have done the   work. There had been a long-running dispute as to   whether the test of dishonesty is subjective or objective. There have been many conflicting decisions in the Court of Appeal, which the lawyers here will recall. In Ghosh, we decided that it was both objective and subjective. That simple approach seems to have silenced everyone from then until now. Some of the academics did not like it to begin with, but it has stood the test of time since 1982, although it has never been formally approved in the House of Lords. It is referred to with approval in the Law Commission report, and it is referred to in the Explanatory Notes. I hope that the noble and learned Lord the Attorney-General might say when he comes to reply that the Ghosh approach is the basis on which we are being asked to enact the Bill. I hope that is not pushing my pride of authorship too far. I certainly would not support a Bill in which the test of dishonesty was to revert to the old-fashioned objective test. I hope that the noble and learned Lord the Attorney-General will be able to say, ““We are enacting this Bill on the basis that Ghosh is the law as we understand it””.