To Prosecute or Not to Prosecute? A Reconsideration of the Over-Zealous Prosecution of Parents under the Fraud Act 2006
| Author | Chris Monaghan |
| DOI | 10.1350/jcla.2010.74.3.637 |
| Published date | 01 June 2010 |
| Date | 01 June 2010 |
To Prosecute or Not to Prosecute?
A Reconsideration of the Over-
zealous Prosecution of Parents
under the Fraud Act 2006
Chris Monaghan*
Abstract The Fraud Act 2006 has received considerable public attention
and press coverage as a result of the unsuccessful attempt to prosecute a
mother for allegedly lying on her son’s school application form. This article
argues that it was inappropriate to begin proceedings using the Fraud Act
2006 in such circumstances. The use of fraud, which has become a catch-
all offence under the Act, is dangerous. The prosecution attempted to
stretch the statutory provisions of the Act and fell foul of the meaning of
‘gain’ or ‘loss’ and the principle of ‘remoteness’.
This article submits that it is wrong to criminalise behaviour just
because we find it morally or socially objectionable. Consideration will
also be given to whether there are other, more appropriate sanctions
which may be taken in such circumstances.
Keywords Dishonesty; False representation; Remoteness; School
admissions; Meaning of gain and loss
In January 2008, Mrs Mrinal Patel allegedly submitted false information
on her son’s school application form to Pinner Park First School.1
Harrow Council responded by bringing a criminal prosecution against
her under the Fraud Act 2006. Having commenced proceedings Harrow
Council decided to drop the prosecution in July 2009, before the case
came to trial at the Crown Court.
There is certainly a temptation to criminalise such behaviour, because
if the allegations were to be proved true, it would amount to lying in
order to achieve a superior education for one’s child. This invites the
question as to whether it is right to hold criminally liable a person who
has lied on a form. If so, where should the line be drawn? Did Parliament
and the statutory draftsman intend that someone like Mrs Patel should
be prosecuted? An answer can be provided by the response from the
then Secretary of State for Children, Schools and Families, Mr Ed Balls,
who immediately after the prosecution was dropped stated, ‘It’s never
been our intention to make this an issue of criminal sanctions and the
use of the criminal law . . . It is not a criminal offence in education
legislation to give false information in order to gain a school place’.2The
* Visiting Lecturer in Law Anglia Ruskin University; e-mail: christopher.monaghan@
anglia.ac.uk.
1 ‘Ed Balls calls for crackdown on parents lying for school places’, Guardian, 3 July
2009, available at http://www.guardian.co.uk/education/2009/jul/03/ed-balls-school-
admissions, accessed 12 April 2010.
2 Ibid.
259The Journal of Criminal Law (2010) 74 JCL 259–278
doi:10.1350/jcla.2010.74.3.637
Secretary of State for Schools gave his opinion after receiving legal
advice that the Fraud Act 2006 could not be used in these
circumstances.3
Many favour prosecution in these circumstances and the leader of
Harrow Council, Mr Ashton, reacted to the decision to drop the case by
calling for the 2006 Act to be amended to allow prosecutions to succeed
in the future.4Mr Ashton’s comments were made after receiving addi-
tional legal advice to the effect that a prosecution for fraud was unlikely
to succeed. Mr Ashton stated, ‘While we stand by the substance of our
case, subsequent legal advice is that technical arguments over the inter-
pretation of the Act could pose a risk to the success of the action’.5
Education in London remains a highly emotive issue, and for many
parents securing their children a good education is far from certain.6
Increasingly education is being reinforced as vital for the future success
of young people, and without receiving a good well-rounded education
many parents understandably fear that their child will be denied the
opportunities that a good education brings. The schools and local au-
thorities are keen to make a stand against this practice and many are
demanding criminal sanction, as will be discussed below.
This sort of activity was seen as fraudulent by the local authority and
as such with the Fraud Act 2006 coming into effect, it is clear that the
local authority thought that it must prima facie amount to a criminal
offence. An article in The Times,7written a year before Mrs Patel’s case
made the headlines, stated that providing false information on a child’s
school application form could amount to the offence of fraud under the
Fraud Act 2006. This automatic link between providing false informa-
tion on a school application form and the criminal offence of fraud
under the 2006 Act is dangerous, not least as it gives rise to the
expectation that such behaviour automatically constitutes the offence. It
is submitted that such an approach is foolhardy as it imagines that
the Fraud Act 2006 can be used to prosecute activity that is seen as
first, fraudulent and, secondly, wrong, whether morally, socially or
criminally.
The intention behind the drafting of the Fraud Act 2006 was to create
a wide offence to replace the old deception defences. In practice the
deception offences were regarded as difficult to apply due to their
technical nature and the narrowness of each offence. The very fact that
the Act is wide and ambiguous as to what circumstances it can be applied
to led in part to the attempted prosecution of Mrs Patel in 2009. The
3 Above n. 1.
4 Ibid.
5‘School place “fraud” case dropped’, BBC News, 3 July 2009, available at http://news.
bbc.co.uk/1/hi/education/8130541.stm, accessed 17 April 2010.
6 See J. Woods, ‘Ed Balls’s insane education policies make school gate cheats of us
all’, Daily Telegraph, 3 November 2009, available at http://www.telegraph.co.uk/
education/6496152/Ed-Ballss-insane-education-policies-make-school-gate-cheats-of-us-all.
html, accessed 17 April 2010.
7 M. Harvey, ‘The parents who cheat at school’, The Times, 29 April 2008, available at
http://women.timesonline.co.uk/tol/life_and_style/women/families/article3840412.ece,
accessed 12 April 2010.
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