Fraud by Abuse of Position and Unlicensed Gangmasters
| Published date | 01 March 2016 |
| DOI | http://doi.org/10.1111/1468-2230.12184 |
| Date | 01 March 2016 |
| Author | Jennifer Collins |
Fraud by Abuse of Position
The doctrine of comity is one of the cornerstones of English pr ivate interna-
tional law. Any legal justification for an attempt to deviate from the doctrine
of comity enshrined under the common law principles, at the theoretical level
or at the doctrinal level, must be pertinently analysed and explained. The jus-
tification must be made abundantly clear through an exposition that embodies
a thorough analysis of the case law and its philosophical underpinnings.61 Any
argument or judicial precedent that may contribute to the undermining of
mutual respect for the sovereignty of foreign courts should be subject, with all
due respect, to close and critical scrutiny.
Fraud by Abuse of Position and Unlicensed
Gangmasters
Jennifer Collins∗
This article analyses the Court of Appeal’s interpretation of the fraud by abuse of position
offence in RvVa l u j e v s . Two issues are explored: first, the Court’s welcome clarification of
the meaning of a relevant ‘expectation’; second, the inadequacy of the Court’s reasoning in
deciding that an unlicensed gangmaster ‘is expected to safeguard, or not to act against, the
financial interests’ of his workers.
Criminal lawyers have long expressed concern about the nebulous scope of
the fraud offence found in section 1 of the Fraud Act 2006.1The offence
is drafted in inchoate form, penalising three types of dishonest conduct: false
representations, failures to disclose information, and abuses of positions of trust.
It must be shown that a defendant dishonestly engaged in one of these forms
of conduct, and that he intended, by means of it, to either make a gain for
himself or another, or to cause loss or the risk of loss to another. To date, fraud
by false representation has been most commonly charged.2But clarification of
the scope of fraud by abuse of position is long overdue, given its astonishing
breadth and its perceived role by criminal law commentators as a means of
61 T. Endicott, ‘Comity among authorities’ (2015) Current Legal Problems 1; U. Baxi, ‘The De-
struction of Comity’ in Human Rights in a Posthuman World (New Delhi: OUP, 2007) 180-186;
R. Fentiman, ‘Anti-suit Injunctions – Comity Redux?’ (2012) CLJ 273; Star Reefers Pool Inc v
JFC Group Co Ltd [2012] EWCA Civ 14.
∗School of Law, University of Bristol. I am grateful to Andrew Ashworth and an anonymous reviewer
for commenting on earlier drafts. All errors and omissions are my own.
1 See D. Ormerod, ‘The Fraud Act 2006 - Criminalising Lying?’ (2007) Crim LR 193. For
background, see Law Commission Consultation Paper No 155, Legislating the Criminal Code:
Fraud and Deception (1999); Law Commission No 276, Fraud (2002); Home Office Consultation
Paper, Fraud Law Reform (2004).
2 Ministr y of Justice, Post-legislative Assessment of the Fraud Act 2006: Memorandum to the Justice
Select Committee (London, 2012) para 13.
354 C2016 The Author. The Modern Law Review C2016 The Modern Law Review Limited.
(2016) 79(2) MLR 341–363
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