Reform of Fraud Law Comes Closer: Fraud Bill 2005–06
| Date | 01 December 2005 |
| DOI | 10.1350/jcla.2005.69.6.503 |
| Author | Jessica Holroyd |
| Published date | 01 December 2005 |
| Subject Matter | Comment |
COMMENT
Reform of Fraud Law Comes Closer:
Fraud Bill 2005–06
Jessica Holroyd*
A Bill was introduced in the House of Lords on 25 May 2005 which aims
to reform the law of fraud by replacing the deception offences in the
Theft Acts 1968 and 1978 with a new offence. The Bill is based on the
proposals of the Law Commission,1but goes further. Law Com. 276 was
considered by this author in 2003,2where the reasons for reform and
details of the Law Commission’s draft Bill were discussed.
The Law Commission recommended a single new offence of fraud,
which could be committed in three ways. This would not require proof
that anyone has been deceived, nor that any gain, loss or other result has
been brought about as a result of fraud, but is based on certain dishonest
acts or omissions, with a view to causing gain or loss. The Government
Bill adapts these proposals and adds to them some useful innovations.
By clause 2, fraud can be committed by dishonestly making a false
representation. This does not mirror Law Com. 276, where a ‘false’
representation included one where the person making it ‘knows that it
is untrue or misleading, or is aware that it might be’. The Bill replaces
this as: ‘the person making it knows that it is, or might be, untrue or
misleading’. This seems to be a distinction without a difference, and
retains a form of subjectively reckless fraud.
The second form of fraud, in clause 3 of the Bill, differs considerably
from Law Com. 276. Fraud by failing to disclose information can be
committed where a person is under a legal duty to disclose. The Law
Commission’s recommendation would have, as a matter of principle,
required proof that the accused knew ‘the circumstances which gave rise
to the duty to disclose’. This requirement does not appear in the current
Bill.
In addition, the offence is drafted more narrowly than was proposed
by the Law Commission, which would have applied it to cases where
there is no legal duty to disclose, but where, to the knowledge of the
accused, the victim trusted the accused to disclose information, and a
reasonable person would have expected disclosure. This approach,
based on a breach of trust, is rejected by the Home Office who, in its
* Senior Lecturer, University of Luton; e-mail jess.holroyd@luton.ac.uk.
1 Law Commission, Fraud, Law Com. Report No. 276, Cm 5560 (2002), available at
www.lawcom.gov.uk/lc_reports.htm, accessed 18 September 2005.
2 (2003) 67 JCL 31.
503
To continue reading
Request your trial