Can the General Fraud Offence ‘Get the Law Right’?: Some Perspectives on the ‘Problem’ of Financial Crime

The Fraud Bill, which received Royal Assent on 8 November 2006, created an offence of fraud in English criminal law which marks a departure of utmost significance from the approach adopted hitherto, whereby a number of related offences cover behaviour deemed to amount to fraud. To mark the passage of the Fraud Act 2006 into law, this article examines the references which were made during its consideration in Parliament to fraud as activity which is serious and which is often erroneously portrayed as ‘victimless’ crime. In joining these key criminal policy-making debates with academic study of white-collar crime, it will be suggested that as yet too little attention is being paid to ‘ambiguous’ popular perceptions of financial crimes for there to be confidence that the fraud offence will, in the words of the current Solicitor-General, ‘get the law right’. In 1998 the Law Commission was instructed to ‘examine the law relating to fraud . . . and to make recommendations to improve the law . . . with all due expedition’. The resulting Consultation Paper published in 1999 Legislating the Criminal Code, Fraud and Deception shows clearly the Law Commission’s appreciation that in the 21st century, challenges arising from the ‘problem of fraud’ owe much to the combination of its base elements of deceit and motivation for securement of advantage or causing loss with the social and economic conditions of the late 20th century, and especially the ‘radical and multifarious advances in the use of modern technology’. The Law Commission explained that this presents considerable difficulties for framing law which is able to ‘keep up’, let alone to stay ‘one step ahead’, of fraud, as fraudulent activity can and does evolve quickly, especially in a fast-changing world. It also stressed that this is a world in which technological advances have ensured electronic means of communication and commercial transaction are commonplace across spheres of everyday life as well as business activity. * School of Law, Keele University; e-mail: [email protected]. The Fraud Bill received Royal Assent on 8 November 2006. This article was passed for press in late December 2006 and therefore references are to key sections of the new Act, rather than clauses of the Bill before it received Royal Assent. 1 Law Commission, Legislating the Criminal Code, Fraud and Deception: A Consultation Paper, Law Com. No. 155 (1999) para. 1.1 (hereafter Legislating the Criminal Code). 2 D. Kirk and A. Woodcock, Serious Fraud: Investigation and Trial (Butterworths: London, 1997) 1. 3 Legislating the Criminal Code, para. 1.3. 4 Ibid. at paras 1.3 and 1.5. 5 Ibid.