CRIMINAL LAW - CURRENT DEVELOPMENTS

CURRENT DEVELOPMENTS – CRIMINAL LAW


The Fraud Act 2006

The Fraud Act 2006, which received Royal Assent on 8 November 2006, came into effect on the 15 January 2007. Thus, as this development occurred prior to the University of London cut-off date of 15 February, you are expected to be familiar with the provisions of the statute.

Implication - All deception offences as expressed in the Theft Acts 1968 and 1978 therefore no longer represent the law and they been repealed and replaced by the Fraud Act 2006

Fraud Act 2006 we cannot supply copies for your use during the examination and neither do the regulations permit you to bring a paper copy into the examination. Should the examination contain any questions which require knowledge of the statute, the Examiners will be made aware of the position.

Materials to read:

i) Chapter 16 of the subject guide:
ii) The Fraud Act 2006:
iii) http://www.opsi.gov.uk/ACTS/acts2006/ukpga_20060035_en.pdf
iv) Explanatory notes to the statute:
v) http://www.opsi.gov.uk/ACTS/en2006/2006en35.htm
vi) Two articles on the Fraud Act which you will find on the
vii) http://vle.londonexternal.ac.uk/laws/gateway.nsf and then to the criminal law homepage/newsletters/archive (November and
viii) December). For background information download the Law Commission Report on Fraud 2002 (Law Com No. 276) at
ix) http://www.lawcom.gov.uk/docs/lc276.pdf

Offences against property 1 – theft and deception

The Fraud Act 2006, which was enacted following calls for reform, repeals all of the deception offences that were contained in the Theft Acts 1968 and 1978 and replaces them with the offence of fraud (s.1) and the offence of obtaining services dishonestly (s.11).

Section 1 of the Fraud Act creates a new offence of fraud that can be committed in any one of three ways. These are:-

a. fraud by false representation (see s.2)
b. fraud by failing to disclose information (see s.3)
c. fraud by abuse of position (see s.4)

This offence, together with that of obtaining services dishonestly contrary to s.11 which replaces the offence of obtaining services by deception contrary to s.1 of the Theft Act 1978, is therefore potentially examinable.

The Act also provides for preliminary offences of possessing, making or adapting articles for use in fraud and the new offences of fraudulent trading by sole traders. Note that these offences do not form part of the current syllabus and are therefore not potentially examinable.

Note that the common law offence of conspiracy to defraud has been retained.

You should now read the articles on the VLE referred to above for an explanation of the new offences of fraud. Consider these articles in conjunction with the statute before you read these Recent Developments any further.

Some points to note on the Fraud Act

a) Actus Reus: The offences contrary to ss.2–4 are complete where D has the intention to make a gain or cause a loss to the victim (loss or gain are defined in s.5 as being money or property). There is no need for the victim’s interests actually to be imperilled. The focus is on D’s behaviour and the gravity of the offence depends upon his dishonest intention.

b) Mens rea: Dishonesty must be proved in order to establish the offence of fraud contrary to:

i) s. 1 - i.e. the false representation
s.2), the failure to disclose
(s.3) and/or the abuse of position
(s.4) must be made dishonestly. See Ghosh [1982]
(s.1) requires proof of a dishonest act). Dishonesty is one of the central elements of the offence.

Note that it is no longer necessary for the prosecution to prove that the misrepresentation operated on the mind of the victim. It has been argued that the offence of fraud is, in effect, a general dishonesty offence which is overly broad and with uncertain scope, thus possibly infringing Article 7 of the European Convention on Human Rights. The government response to this was:

We are not proposing a general dishonesty offence: dishonesty is an underlying requirement, but is only one of the requirements, and each limb of the new offence sets specific tests which must be met, in addition to dishonesty. We therefore believe it fully meets the requirements of Article 7.

The government made a statement of ECHR compatibility which was available at the start of the bill as it was introduced in each House.

Fraud by false representation: s.2

A representation is defined as false if it is untrue or misleading and the person making it knows that it is, or may be, untrue or misleading.

In contrast to the pre-existing law, there is no need to for the prosecution to demonstrate that the misrepresentation operated on the mind of the victim. This does away with the problem of the victim who is indifferent as to whether the representation is false or not – for example the sales assistant in a shop who knows that if he complies with the credit company’s requirements the shop will receive payment, but is indifferent as to whether or not the customer’s implied representation that he or she is entitled to use the card is true or false. It follows that, as the misrepresentation does not need to act on the mind of the victim, this offence can be committed vis-à-vis a machine. See in particular s.2(5) and the
November article on the VLE.

Fraud by failing to disclose information: s.3

Note that the duty must be a legal duty. The concept of ‘legal duty’ is explained in the Law Commission’s Report on Fraud. See the November article on the VLE. Note also the possible overlap with s.2 as a failure to disclose information which D is under a legal duty to disclose will also be a false representation.

Fraud by abuse of position: s.4

Section 4 makes it an offence to commit a fraud by dishonestly abusing one’s position. It applies in situations where the defendant has been put in a privileged position, and by virtue of this position is expected to safeguard another’s financial interests or not act against those interests. See the November article on the VLE.

Obtaining services dishonestly: s.11

This new offence combats problems with the ‘deception’ of automated service provision. It is not restricted to the deception of machines but deals generally with the obtaining of services dishonestly. See the December article on the VLE. Note that the service must be a non-gratuitous service and that it is sufficient that D knows that this ‘might’ be the case – s.11(2)(c)(ii) – and it must be proved that D intended that payment would not be made or would not be made in full. The offence is not inchoate: it requires the actual obtaining of the service.
Definitions

The definitions of ‘gain’, ‘loss’ and ‘property’ are aligned with those used in the law of Theft. Gain and loss are defined in s.5 of the Fraud Act 2006 and property is as defined in s.4(1) (read with s.32(1)) of the Theft Act 1968.

Unlawful homicide: murder and manslaughter

R v Coutts [2006] UKHL 39: D killed V during consensual sexual activity which involved the use of a ligature made from a pair of tights which he had tied around her neck. He claimed that he had not intended to kill or cause V grievous bodily harm. Although he was a neck fetishist, he was not violent and had never before armed anyone when using such ligatures during sexual activity. D was charged with murder and convicted. The trial judge, with the support of the prosecution and the consent of the defence, did not leave an alternative count of manslaughter to the jury. He directed the jury that they should convict of murder if satisfied that the appellant had committed that offence and, if not so satisfied, acquit. The Court of Appeal dismissed his appeal, where he contended that a manslaughter verdict should have been left to the jury for their consideration irrespective of the parties’ wishes. The narrow question raised by the appeal is whether, on the facts of this case, the trial judge should have left an alternative verdict of manslaughter to the jury. The broader question, of more general public importance, concerns the duty and discretion of trial judges to leave alternative verdicts of lesser-included offences to the jury where there is evidence which a rational jury could accept to support such a verdict but neither prosecution nor defence seek it. (Lord Bingham)

The House of Lords allowed D’s appeal, ruling that on a charge of murder the alternative verdict of manslaughter should normally be left to the jury – unless, for example, it would result in an unfair trial – if there was material to support it, irrespective of the wishes of the parties. It did not serve the interests of justice where a defendant who had committed a lesser offence was either convicted of the greater offence or acquitted. His punishment would either be too harsh or he would not receive the measure of punishment his crime deserved. The objective must be that defendants are neither over-convicted nor under-convicted, nor acquitted when they have committed a lesser offence of the type charged. The human instrument relied on to achieve this objective in cases of serious crime is of course the jury. But to achieve it in some cases the jury must be alerted to the options open to it. (Lord Bingham) Lord Hutton’s view was that in this case, the lesser offence would have been manslaughter by unlawful and dangerous act. V’s consent to the use of the ligature would not have been legally valid: Brown [1994] HL; Emmett [1999] CA.
R v Dhaliwal [2006] 2 Cr App R 24. In this case the Court of Appeal, following the case of Chan-Fook [1994], held that the ambit of ‘bodily harm’ was restricted to recognised psychiatric illness although it was stated per curiam that unlawful violence on an individual with a fragile and vulnerable personality which is proved to be a material cause of death, even if the result (death) is suicide, is arguably capable of amounting to manslaughter.

Voluntary manslaughter: the defences of provocation and diminished responsibility

Diminished responsibility
R v Hendy [2006] EWCA Crim 819 D killed V while suffering from an abnormality of mind and while intoxicated. The trial judge directed the jury as follows:

1. Have the defence satisfied you that it is more likely than not if the defendant had not taken drink he would have killed as he in fact did? If the answer is ‘no’, the verdict is ‘guilty of murder’. If the answer is ‘yes’, proceed to… 2.

2. Have the defence satisfied you that it is more likely than not that if the defendant had not taken drink he would have been under diminished responsibility when he killed? If the answer is ‘no’, the verdict is ‘guilty of murder’. If the answer is ‘yes’, the verdict is ‘not guilty of murder, but guilty of manslaughter by reason of diminished responsibility’.

D was convicted of murder and appealed. The prosecution conceded that the trial judge had not directed the jury in accordance with Dietschmann [2003] (see page 114 of the subject guide), but that the direction was in accordance with the law as it was at the trial, which took place before the decision in Dietschmann. The issue for the Court of Appeal was, therefore, whether the House of Lords in Dietschmann made new law or whether the decision represented the law as it always was. The Court held that the trial judge had misstated the law as it was at the time of the trial and stated per curiam that the House in Dietschmann had not been propounding any new principle of law but merely explaining what the law had been since the enactment of the Homicide Act 1957 and since R v Gittens [1984].

On 29 November 2006 the Law Commission published its recommendations for the law of murder and other homicides. This is the first review of its kind for half a century. The Law Commission Report on Homicide ‘Murder, Manslaughter and Infanticide’ (Law Com. No.304, TSO, 2006). Go to http://www.lawcom.gov.uk/docs/lc304.pdf and see the editorial by Ian Dennis in the Criminal Law Review Crim LR 2007, Feb, 107–108. You can access this article in ull on Westlaw, which is available through the University of London online library at http://www.external.shl.lon.ac.uk/ Note that these are recommendations and do not represent rent law.

Series of offences under

Killing with intention to case grievous bodily harm
Manslaughter

Aggravated non-fatal offences against the person

DPP v Smith [2006] EWHC 94 (Admin): The issue for the court was whether cutting a person’s hair without their consent could amount to an offence contrary to s.47 of the Offences Against the Person Act 1861.

The Divisional Court of the Queen’s Bench held that evidence of external bodily injury or a break in or bruise to the surface of the skin was not required for the purposes of actual bodily harm within s.47 of the Offences Against the Person Act 1861. Hair was part of the human body which was intrinsic to each individual and the cutting off of a substantial part of a person’s hair, without that person’s consent, in the course of an assault was capable of amounting to the offence contrary to s.47 even where it did not leave any mark or break the skin. Chan Fook [1994] and Ireland [1998] HL followed.

Failure of proof and justificatory defences

R v Altham [2006] EWCA Crim 7: The defendant was charged with an offence contrary to s.5(2) of the Misuse of Drugs Act 1971 – he had been smoking cannabis (a controlled drug) for 15 years to alleviate the constant pain he suffered as the result of injuries he had suffered in a road traffic accident. The Court of Appeal held that the trial judge had been entitled to hold that the defence of necessity should not be left to the jury. The role of the defence according to Scott Baker LJ ‘cannot be to legitimise conduct contrary to the clear legislative policy and scheme…’. Further, the state was not in breach of its obligation under Article 3 of the European Convention on Human Rights by not permitting him to take any steps that were necessary to alleviate his medical condition notwithstanding that those steps breached the criminal law: it had done nothing to subject the appellant to either inhuman or degrading treatment and thereby engage the absolute prohibition within Article 3.

Excusatory and mental disorder defences

DPP v Mullally [2006] ALL ER (D) 49 (Nov) - The defendant drove a car having consumed excess alcohol after the police were in attendance, having responded to her call to them. The Divisional Court of the Queen’s Bench held that the Justices had fallen into error when they decided that her response to the threat was objectively reasonable. According to the Queen’s Bench Division, once a reasonable person knew that the police were in attendance, they would have concluded that they would have been given protection by the police. The Justices were wrong to have acquitted the defendant and the matter would be remitted to them with a direction to convict.
Inchoate offences

R v Abu Hamza [2006] EWCA Crim 2918 - The Court of Appeal held that it was an offence contrary to s.4 of the Offences Against the Person Act 1861 for a person to incite a foreign national in England or Wales to commit murder abroad. The offence was not restricted to situations HM/N/where those committing the murders were to be British subjects. Section 4 enacted the ingredients of substantive offences. It did not lay down rules of jurisdiction and there was nothing in the wording of the section to suggest that the conspirators, or the person incited, should be British subjects.

R v Saik [2006] UKHL 18 - The case for the prosecution was that D, who operated a currency exchange office, had in the course of that business converted sterling which was or represented the proceeds of drug trafficking or other criminal activity into foreign currency. D’s qualified plea of guilty to a charge of conspiracy to launder money contrary to s.1 of the Criminal Law Act 1977 was accepted by the court. He claimed that although he suspected that the money was the proceeds of crime, he did not in fact know that it was. A defendant will be guilty of the substantive offence of money laundering where he knows or has ‘reasonable grounds to suspect that such property… represent[s] another person’s proceeds of… criminal conduct’ but, in the case of conspiracy, s.1(2) of the Criminal Law Act 1977 provides that: ‘where liability for any offence may be incurred without knowledge on the part of the person committing it of any particular fact or circumstance necessary for the commission of the offence, a person shall nevertheless not be guilty of conspiracy to commit that offence by virtue of subsection (1) above unless he and at least one other party to the agreement intend or know that that fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place.’ D’s appeal against conviction to the Court of Appeal failed but he succeeded in his subsequent appeal to the House of Lords. Conspiracy to commit an offence is a different harm from the actual commission of the substantive offence in that conspiracy imposes criminal liability on the basis of a person’s intention. For the purposes of conspiracy,
knowledge required proof of a true belief, even where a lesser form of mens rea (or no mens rea) was required for the substantive offence.

In July 2006 The Law Commission published its recommendations on assisting and encouraging crime. Inchoate Liability for Assisting and Encouraging Crime: Law Comm 300. You can access this report at http://www.lawcom.gov.uk/docs/lc300.pdf Note that these are recommendations and do not represent current law.

Corporate manslaughter.






















2006 CURRENT DEVELOPMENTS – CRIMINAL LAW

R v Wang [2005] UKHL9: The House of Lords ruled that established and binding authority indicated that a judge had no power to pre-empt the jury verdict by directing it to convict. It is however, the judge’s duty to direct the jury to acquit is there is no evidence to prevent the accused being wrongfully convicted.

R v Hassan [2005]: The House of Lords held that a defendant was not entitled to rely on the defence of duress, where he has voluntary association with known criminals. He should actually have foreseen compulsion to commit crime. R v Hudson (1971); R v Baker (1999) were disapproved as being too favourable to the defendant.

R v Claydon [2005] The Court of Appeal held that the offence of incitement cannot be made out where the person incited was not legally capable of committing the substantive offence. It was immaterial if the person incited has the mens reas for the offence.

R v Faqir Mohameed (2005); Ahluwalia (1992), Thorton (1996)l Dryden (1995); Humpheries (1995) - Reasonable man.

R v Willoughby (2005) – D who recruited his friend to help him set fire on his building during which his friend was killed. D appeal against his conviction for manslaughter which failed. The court held that two categories of manslaughter i.e. by unlawful and dangerous act and by gross negligence are not necessarily mutually exclusive. Indeed in some instances the defendant may be guilty of the offence by both routes.

R v Carrey and Others (2006) - The defendant conviction for manslaughter in respect of girl he attached and died while running uphill 109 yards from the scene of the attack. The court held that the only dangerous act committed by the defendant was punching he victim which was not the legal cause of her death. His conviction was quashed.

Criminal Justice Act ss. 75 and 76

DPP v Santana-Bermudex (2004) - It was held that where someone by act or word or a combination of the two exposed another to a reasonably foreseeable risk of injury which materialised, there is evidential basis for actus reus of an assault occasioning bodily harm. Consentual acts of sexual intercourse were not unlawful merely because there might be a known risk of health to one of the participant. This should be separated from deliberate desire to spread dangerous diseases.

R v Sofoniou (2004) - The case laid to rest R v Halai thus confirming the retrospective effect of s.1(3) of the Theft Amendment Act 1996 which made it clear that giving a mortgage was a service within the meaning of Theft Act 1978 s.1

R v Mitchek (2004) - The defendant wrongly removed his wrongly packed car and by so doing damaged a wheel clamp. The defendant claimed lawful excuse under s.5(2) of Criminal Damage Act 1971 because he had a civil right of ‘recaption’ (self-help). It was held that the right only extended to situations where the person had to enter land to reclaim something that had wrongly been taken there and the defendant was convicted.

R v G according to Andrew Ashworth set the stage for ‘more nuanced discussions of the extent to which requirement for criminal liability should have subjective or objective element rather than a crude subject and objective characterisation. He adds that the moral and social arguments are not all stacked on one side.