The
Committee consisted of the following
Members:Chairmen:
Mr.
David Amess, †
Mr.
Martyn Jones †
Brown,
Lyn (West Ham) (Lab) †
Campbell,
Mr. Alan (Lord Commissioner of Her Majesty's
Treasury)†
Cox,
Mr. Geoffrey (Torridge and West Devon)
(Con) †
Cunningham,
Mr. Jim (Coventry, South)
(Lab) †
Fabricant,
Michael (Lichfield)
(Con) †
Grieve,
Mr. Dominic (Beaconsfield)
(Con) †
Gwynne,
Andrew (Denton and Reddish)
(Lab) †
Hands,
Mr. Greg (Hammersmith and Fulham)
(Con) †
Heath,
Mr. David (Somerton and Frome)
(LD) †
Hunter,
Mark (Cheadle) (LD) †
Johnson,
Ms Diana R. (Kingston upon Hull, North)
(Lab) †
Lucas,
Ian (Wrexham) (Lab) †
Mullin,
Mr. Chris (Sunderland, South)
(Lab) †
O'Brien,
Mr. Mike
(Solicitor-General)†
Snelgrove,
Anne (South Swindon)
(Lab) †
Sutcliffe,
Mr. Gerry (Parliamentary Under-Secretary of State for the Home
Department)†
Wright,
Jeremy (Rugby and Kenilworth)
(Con) Mr. G Clarke, Committee
Clerk † attended the
Committee Standing
Committee BTuesday 20
June
2006(Afternoon)[Mr.
Martyn Jones in the
Chair]Fraud Bill [Lords]
Clause
6Possession
etc. of articles for use in
frauds Amendment
proposed [this day]: No. 5, in clause 6, page 3, line 3, after
‘article', insert ‘intended'.—[Mr.
Grieve.] 4
pm Question
again proposed, That the amendment be
made.
The
Chairman: I remind the Committee that with this we are
discussing the following amendments: No. 9, in clause 6, page 3, line
3, leave out ‘for use' and
insert ‘which he intends to be
used'. No.
10, in clause 6, page 3, line 3, leave out ‘connection with' and
insert ‘furtherance
of'. No. 11, in clause
6, page 3, line 3, at end
insert ‘carried out by him or any
other
person'. Mr.
David Heath (Somerton and Frome) (LD): I welcome you to
the Chair of the Committee this afternoon, Mr. Jones. I cannot claim to
have made more than introductory comments on the group of amendments
under consideration during this morning’s sitting, so I will
reiterate. The
clause, as the Committee will recall, deals with the possession of
articles for use in frauds. The issue is whether there should be an
express intent in the clause. There is no mens rea provision at the
moment. Interestingly, in clause 7, there is such a provision, so there
is a difference between the two clauses. The only thing that might be
construed as intent is the importation of the form of words from the
Theft Act 1968: “for use
in the course of or in connection with any fraud.”
I understand that that has been construed
to imply intent. It is certainly not explicit and it requires
interpretation. The
question is whether we should make it absolutely explicit that the
article in question should be in the possession of the person with a
clear intent to commit a fraud. The hon. Member for Beaconsfield (Mr.
Grieve) has already moved amendment No. 5, which would insert the word
“intended” after “article”, so the clause
would read “any article
intended for use in the course of or in connection with any
fraud.” As
I intimated to him in an intervention, my difficulty with that wording
is that an article may be intended for use in fraud but by a different
and separate person from the person who is carrying the article or has
control of it. So I am not sure that the amendment specifically
addresses the issue that we wish to raise.
In amendment
No. 9, I propose an alternative form of words, which makes it clear
that the person who is guilty of the offence has the article in his
possession or under his control and intends it to be used in the course
of, or in connection with, fraud. That makes the connection between
possession and intent absolutely explicit and, I think, improves the
wording of the
clause. Amendment No.
10 would make the connection still more explicit. I understand that the
Solicitor-General may say that it is better to have conformity between
the two pieces of legislation, so that they are expressed in the same
terms. I think that “in furtherance of” is better than
“in connection with” because there are many items that
could be used in connection with fraud but are not intended for use in
a fraud. A printer on which counterfeit documents are produced might be
an article that is used in connection with fraud but there may be no
intent to do that, whether implicit or explicit, in possessing that
printer. The words “in furtherance of” make it clear that
there is a causal relationship and one of intent between possession and
use in the prosecution of a fraudulent or dishonest act. I commend that
amendment to the
Committee. Amendment
No. 11 is perhaps a counter-balance to what I said earlier. If it is
clear that the intent must be proven by the prosecution, it seems to be
entirely reasonable that the provision should not require that the
article for use in the fraud is to be used by the self-same person.
What I am suggesting is that, by
inserting “which he
intends to be used” and
adding “carried out by
him or any other
person” we will retain
the sense by which an article might be carried by one person, to be
used by another, but we insert the clear requirement for intent to be
proven. The clause as
currently worded is capable of being construed in the way that I want
it to be construed, but it is not unambiguous. My amendments would
strengthen the provision, make the intent clear, and to a considerable
degree bring clause 6 into line with clause 7, where the intent is
clearly
stated.
The
Solicitor-General (Mr. Mike O'Brien): Welcome to the
Chair, Mr. Jones. Hopefully we will make some brisk progress today
under your chairmanship. I am sure that we will all have an interesting
debate on some of the
clauses. I detect some
difference in view between the Opposition parties. The Conservatives
seem to want a more specific intention drawn into the clause, whereas
the Liberal Democrats want a broader, or general intention of the sort
that the Government favour. The objective of the Liberal Democrats
seems to be to insert into the clause that which we believe is already
there by case law. The view of the Conservatives, unless I have
misinterpreted it, is to be much more specific about the nature of the
intention. We
have been living with an offence worded in the same way as clause 6 for
nearly 40 years. That offence is in section 25 of the Theft Act 1968,
which applies not only to burglars but to those going equipped to
commit a cheat. A cheat is defined as a crime of obtaining property by
deception under section 15 of the Theft Act. The years since 1968 have
provided case law on the
provisions, the most important of which for our present purposes is
Ellames, which I mentioned on Second Reading and is referred to in the
explanatory notes. I
will be a bit broader than the explanatory notes in identifying some of
the issues here, as that may be helpful to the Committee. Mr. Justice
Brown said during the Ellames
case: “In our
judgment, the words in section 25(1) of the 1968 Act: ‘has with
him any article for use’ mean ‘has with him for the
purpose’ (or ‘with the intention’) ‘that
they will be used’. The effect of section 25(3) is that if the
article is one ‘made or adapted for use in committing a
burglary, theft or cheat’, that is evidence of the necessary
intention, though not of course conclusive evidence. If the article is
not one ‘made or adapted’ for use, the intention must be
proved on the whole of the evidence—as it must be in the case of
an article which is so made or adapted, if the defendant produces some
innocent explanation. We agree with the learned authors of Smith and
Hogan: Criminal Law...that section 25 is directed against acts
preparatory to burglary, theft or
cheat”— and that
questions of Mr. “D’s”, the
defendant’s— “knowledge
of the nature of the thing can hardly arise here, since it must be
proved that he intended to use it in the course of or in connection
with” the burglary, theft
or cheat “and that the
mens rea for this offence includes ‘an intention to use the
article in the course of or in connection with any of the specified
crimes”. He
continued: “In
our view, to establish an offence under section 25(1) the prosecution
must prove that the defendant was in possession of the article, and
intended the article to be used in the course of or in connection with
some future burglary, theft or cheat. But it is not necessary to prove
that he intended it to be used in the course of or in connection with
any specific burglary, theft or cheat; it is enough to prove a general
intention”— I
think that is the important phrase
here— “to use it
for some burglary, theft or cheat; we think that this view is supported
by the use of the word ‘any’ in section 25(1). Nor, in
our view, is it necessary to prove that the defendant intended to use
it himself”— which
is the point that the hon. Member for Somerton and Frome (Mr. Heath)
made— “it will be
enough to prove that he had it with him with the intention that it
should be used by someone
else.” Mr.
Dominic Grieve (Beaconsfield) (Con): I shall take this
opportunity to clarify a remark that the Solicitor-General made
earlier, when he thought that there was a difference of approach
between the hon. Member for Somerton and Frome and me. I do not believe
that there was. I understood fully the difference between the two forms
of wording and, as I acknowledged at the outset, the wording proposed
by the hon. Gentleman may be better than mine, but our intention was
identical. I want to make it clear that I certainly was not seeking, by
way of the amendment, to narrow the provision so that it had to be
proved that the person intended to use the article in some specific
form of fraud. On the contrary, the proposal was merely that it would
be for use in
fraud.
The
Solicitor-General: I am grateful to the hon. Gentleman for
that clarification of his position and I accept that both Opposition
spokespersons want an outcome that is not too different from what the
Government want. The question is whether we need to import that by way
of amendment or whether it is, in effect, already
imported. Section 25
of the Theft Act 1968 needs to be replaced by clause 6, because it does
not cover cases in which the possession takes place in the home, and
the objective is that the provision should include such cases. Concern
about it being used against people who have no fraudulent intention is
misplaced, as Ellames makes it clear that an intention is required.
Amendments Nos. 5 and 6 are unnecessary because the Ellames case will
be imported, in effect, into the
clause. Amendments
Nos. 10 and 11 are also unnecessary. The part of Ellames that I quoted
makes it clear that the intended fraud does not have to be committed by
the possessor; it may be committed by someone
else. The same case
provides authority for attaching a wide meaning to “in
connection with”. This part of the Ellames judgment is relevant
to that. I think that I have already quoted some of it, but essentially
it says: “The
object and effect of the words ‘in connection with’ is to
add something to ‘in the course
of’.” Whether
“in furtherance of” would carry such a wide meaning is
open to question. We do not want to risk not covering any of the huge
variety of acts that may be preparatory to fraud. Opposition Members
may believe that “in connection with” is too wide, but I
do not agree, as the whole offence is underpinned by the requirement
for a general intention to commit fraud, so no truly innocent person
has, in my view, anything to
fear. All four
amendments are not only unnecessary but undesirable, because they would
take us away from the section 25 wording and thus deprive us of the
case law associated with the existing provision, and the case law has
been extremely useful in making it clear to the courts where they ought
to be going. Accepting the amendments would have implications for
section 25, which will remain in force to cover burglary and theft. We
do not want to have one form of wording for one set of offences and
different wording for a very similar set of offences relating to fraud.
The courts would want to construe what the difference was, and we know
from this discussion that no difference is
intended. It is
necessary to ensure that we keep the similar case law and the similar
intention. I do not think that there is any great disagreement of
principle between any of us on how we would like the clause to be
applied, but I want to ensure that we maintain the clarity of the
provisions, that the courts know what they are about and that the jury
is therefore able in due course to make a judgment about the outcome of
a
case.
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