Past, Present and Future Tension. Does s 6 of the Fraud Act 2006 Apply to Pre-existing Fraud? R v Smith [2020] EWCA Crim 38
| Author | Tony Storey |
| Published date | 01 April 2020 |
| Date | 01 April 2020 |
| DOI | http://doi.org/10.1177/0022018320916930 |
| Subject Matter | Case Notes |
Case Note
Past, Present and Future
Tension. Does s 6 of the
Fraud Act 2006 Apply to
Pre-existing Fraud?
R v Smith [2020] EWCA Crim 38
Keywords
Fraud, possession of an article for use in fraud
Andrew Smith (S) operated a gardening business, All Seasons Tree & Garden Landscapes. He conducted
some work for a customer, Sydney McFarlane (M). The work did not go as planned and M contacted
trading standards. In due course S was charged with fraud, contrary to s 1 of the Fraud Act 2006 (the
2006 Act) and with having ‘in his possession ...any article for use in the course of or in connection with
any fraud’, contrary to s 6 of the 2006 Act. On the latter charge, the Crown alleged that S had subse-
quently created a false cancellation notice, purportedly signed by M, in order to try to conceal the earlier
fraud.
S appeared before HHJ Cooper and a jury at Cambridge Crown Court in June 2019. HHJ Cooper
directed the jury that s 6 applied in such circumstances. S was convicted and appealed.
Held, dismissing the appeal, that the words ‘in connection with’ in s 6 of the 2006 Act were ‘broad’
with ‘no technical or restricted meaning’. Rather, they were ‘ordinary words of the English language’.
Moreover, they ‘must add something to what precedes them – ‘in the course of’ – otherwise they would
be otiose’ (at [30]). Section 6 therefore covered an article which was to be used ‘in connection with’ a
pre-existing fraud (at [31]). According to Singh LJ, giving the unanimous judgment of the Court, ‘it
could well be said, applying the statutory language to the facts of the case, that the offence under section
6(1) has been committed because the article is intended to be used in connection with the fraud’ (at [31]).
Commentary
In July 2002, the Law Commission published its proposals on reform of this area of law (Report on
Fraud (Law Com No 276)). However, the Report did not include any discussion of, let alone proposals
for, the creation of an offence dealing with possession of articles for use in, or in connection with, fraud.
In May 2004, the Labour government published its own consultation paper, ‘Fraud Law Reform:
Consultation on Proposals for Legislation’. Unlike the 2002 Report, this article did invite discussion
around a proposed offence of ‘possessing equipment to commit fraud’. In November 2004, the govern-
ment published the responses it had received (‘Fraud Law Reform: Government Response to Consulta-
tions’). On the mooted possession offence, the government noted that:
The proposal for this new offence was welcomed by almost everybody. It represents an addition to the Law
Commission proposals, and replaces the ‘going equipped to commit a cheat’ offence in section 25 of the Theft
The Journal of Criminal Law
2020, Vol. 84(2) 181–183
ªThe Author(s) 2020
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DOI: 10.1177/0022018320916930
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