Forgery Reforged: Art‐Faking and Commercial Passing‐Off Since 1981
| Author | David Crystal‐Kirk |
| DOI | http://doi.org/10.1111/j.1468-2230.1986.tb01706.x |
| Published date | 01 September 1986 |
| Date | 01 September 1986 |
FORGERY REFORGED: ART-FAKING AND
COMMERCIAL PASSING-OFF SINCE
1981
INTRODUCTION
PRIOR to 1981 it was commonly held among criminal lawyers that
the law relating to forgery-based offences was unsatisfactory. This
led to the passing of the Forgery and Counterfeiting Act 1981.
While this did away with many of the objections arising under the
old law, this paper argues that the effect of the 1981 Act is to
extend the scope of forgery quite considerably, to include among
other things the production of art fakes and the passing off of
manufactured goods as the brand goods of another; and that this is
a proper extension of the scope of the offence in view of the
inadequate protection otherwise afforded by the law in general
against certain frauds.
It is inescapable that all artifacts are statements about themselves.
This point is nicely made by the poet Stephen Spender’s description
of a steam locomotive as a “black statement of pistons.”
The information stored or recorded, as it were, in an artifact
may be information about the artifact itself, or about something
connected with it, or about something relatively unconnected. For
example, a chair informs one that it is apt for the purposes of
sitting on; a rare Ming vase,
inter
alia,
that any other like it cannot
be unique-which might be an important economic consideration
to an art collector; a pair of jeans with the manufacturer’s label on
it tells by whom and possibly when or where it was manufactured.
Thus it can fairly be said that, just as a document may explicitly,
so
may an artifact implicitly, store or record information. Just as
an artifact may inform, a false one (one that pretends to be what it
is not) may mislead. It may even have been deliberately made false
in a calculated strategy to mislead, to be used with a view to gain
by the perpetrator and a corresponding loss (or prejudice) suffered
by any person duped. It was this kind of fraud that the law of
forgery was designed to combat, yet it may come as a surprise to
learn that, at least historically, forgery was construed to have a
very narrow technical meaning, at odds with the man in the street’s
understanding of the term and not altogether logical or sensible.
THE
COMMON LAW
AND
THE
FORGERY
ACT 1913
At common law there was much debate as to what amounted to
the
actus
reus
of
forgery. Several elements appeared capable of
being relevant,
e.g.
writing, signature, document, prejudice
to
another’s right, misuse of writing/document
,
but precisely what
constituted the
actus
reus
was never settled.
In order to clarify the matter, the offence was codified in section
1
of the Forgery Act 1913. While this section described forgery, it
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