Fraud Bill [HL] - continued | House of Commons |
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Theft Act (Northern Ireland) 1969 Paragraph 9 makes provision for Northern Ireland equivalent to paragraph 3 of Schedule 1 to the Bill. Paragraph 10 makes provision for Northern Ireland equivalent to paragraph 5 of Schedule 1 to the Bill. Paragraph 11 makes provision for Northern Ireland equivalent to paragraph 6 of Schedule 1 to the Bill. Paragraph 12 makes provision for Northern Ireland equivalent to paragraph 7 of Schedule 1 to the Bill. Paragraph 13 makes provision for Northern Ireland equivalent to paragraph 8 of Schedule 1 to the Bill. Theft Act 1978 Paragraph 14 repeals section 4(2)(a), which specifies the penalties for offences under sections 1 and 2 of the Act, which are both repealed by paragraph 1. Paragraph 15 repeals section 5(1), which defines 'deception' for the purposes of sections 1 and 2 and will likewise be redundant on their repeal. Theft (Northern Ireland) Order 1978 Paragraphs 16 and 17 of Schedule 1 make provision for Northern Ireland equivalent to the provision made for England and Wales by paragraphs 14 and 15. Limitation Act 1980 Paragraph 18 amends section 4 (special time limit on civil actions in cases of theft). It replaces the existing section 4(5)(b), which defines "theft" as including cases of fraud under section 15 of the 1968 Act and blackmail under section 21 of the 1968 Act, with a new provision which refers to fraud (within the meaning of the Bill). It preserves the reference to blackmail. Finance Act 1982 Paragraph 19 amends section 11, which enables the Commissioners of Customs and Excise to institute proceedings under the Theft Act 1968, the Theft Act 1978 etc, notwithstanding the fact that payments may be due to the Intervention Board for Agricultural Produce. The amendment adds the Bill to the list of Acts in respect of which proceedings may be taken. Nuclear Material (Offences) Act 1983 Paragraph 20 amends section 1, which provides that if a person commits a wide range of offences (including "fraud") "in relation to or by means of" nuclear material, he may be tried in the UK irrespective of where he did the acts. The amendment simply deletes the reference to section 15 of the 1968 Act and section 15 of the Theft Act (Northern Ireland) 1969, which are repealed by the Bill. As "fraud" is already mentioned in section 1 in a general way, the 1983 Act provision will bite on the offence in clause 1 of the Bill without the need for a specific mention of the Bill. Police and Criminal Evidence Act 1984 Paragraph 21 amends section 1(8) (on stop and search) by replacing the existing reference to section 15 of the 1968 Act with a reference to fraud contrary to clause 1. The effect is that articles made or adapted for use in frauds will be "prohibited articles" and a constable may search vehicles for them under section 1(2) or seize them under section 1(6). (This does not obviate the need for clause 6 of the Bill as the possession of 'prohibited articles' is not an offence under PACE.) Limitation (Northern Ireland) Order 1989 Paragraph 22 makes provision for Northern Ireland equivalent to the provision made for England and Wales by paragraph 18. Police and Criminal Evidence (Northern Ireland) Order 1989 Paragraph 23 makes provision for Northern Ireland equivalent to the provision made for England and Wales by paragraph 21. Criminal Justice Act 1993 Paragraph 24 makes three amendments to the definitions of Group A and Group B offences for the purposes of the jurisdictional provisions of Part 1 of the 1993 Act. The basic effect of these 1993 provisions is to give our courts jurisdiction over certain specific crimes of dishonesty even where only one element of the offence took place in the UK. So paragraph 24:
Paragraph 25 amends section 2 of the 1993 Act to ensure that the offence of fraud in clause 1 of the Bill can be prosecuted if the only event that takes place in this jurisdiction is the gain or loss of property. Criminal Justice (Northern Ireland) Order 1994 Paragraph 26 makes provision for Northern Ireland equivalent to the provision made for England and Wales by paragraph 27. Criminal Justice (Northern Ireland) Order 1996 Paragraph 27 makes provision for Northern Ireland equivalent to the provision made for England and Wales by paragraph 24. Paragraph 28 makes provision for Northern Ireland equivalent to the provision made for England and Wales by paragraph 25. Powers of Criminal Courts (Sentencing) Act 2000 Paragraph 29 amends section 130 (on compensation orders). Section 130 contains references in subsections (5) and (6)(a) to an offence under the Theft Act 1968. This paragraph inserts a new reference to offences under the Bill. This is consequential on the repeal and replacement of sections 15, 15A, 15B, 16 and 20 (2) of the 1968 Act by the Bill. Terrorism Act 2000 Paragraph 30 amends Schedule 9 (scheduled offences) to reflect the repeal of the section 15 of the Theft Act (Northern Ireland) 1969 (offence of "obtaining property by deception") and the creation of the new offences under section 1 of the Fraud Act 2005. Paragraph 31 amends Schedule 12 to reflect the repeal of section 15 of the Theft Act (Northern Ireland) 1969 and the consequent need to include an express definition of deception. Criminal Justice and Court Services Act 2000 Paragraph 32 makes two amendments to Schedule 6, which defines "trigger offences" for the purposes of Part 3 of the Act. The term is used in sections 63 and 64 (in both cases commission of a trigger offence can lead to drug testing of young offenders on supervision or licence after release). So paragraph 30:
Armed Forces Act 2001 Paragraph 33 amends section 2 which gives similar powers of stop and search to service policemen as are given to regular policemen by PACE. It replaces the existing reference to section 15 of the 1968 Act with a reference to clause 1 of the Bill. It parallels the amendment to PACE made by paragraph 21 above. Licensing Act 2003 Paragraph 34 adds a reference to offences under the Bill to the list of "relevant offences" for the purposes of the personal licence provisions of the 2003 Act. Asylum and Immigration (Treatment of Claimants, etc) Act 2004 Paragraph 35 amends the list of offences, in section 14(2) of the 2004 Act, for which an Immigration Officer may arrest without warrant when exercising a function under the Immigration Acts. Sub-paragraph (1) deletes the existing references to offences repealed by the Bill. Sub-paragraph (2) inserts a reference to provisions of the Bill broadly equivalent to those which are currently mentioned in section 14. Serious Organised Crime and Police Act 2005 Paragraph 36 amends section 76 of the Serious Organised Crime and Police Act 2005 which concerns financial reporting orders. That section provides for a new ancillary order, available to courts at the point of sentence that will require offenders convicted of specified fraud and organised crime lifestyle offences to make such reports of their income and assets as the court sets out in the order. Paragraph 34 ensures that the offences in section 1 and 11 of the Bill can trigger the making of a financial reporting order and deletes the references in section 76 of the 2005 Act to the deception offences in sections 15, 15A, 16 and 20(2) of the Theft Act 1968 and sections 1 and 2 of the Theft Act 1978 that are repealed by the Bill. Paragraph 37 makes similar changes to section 78 of the 2005 Act which concerns financial reporting orders in Northern Ireland. Gambling Act 2005 Paragraph 38 adds a reference to offences under the Bill to the list of "relevant offences" for the purposes of the Gambling Act. Under the Gambling Act a conviction for a relevant offence is a ground on which a licence under that Act may be refused. SCHEDULE 2: TRANSITIONAL PROVISIONS AND SAVINGS Maximum term of imprisonment for offences under this Act Paragraph 1 is a transitional provision to ensure the lower maximum penalty for summary cases applies in any case involving an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003. Increase in penalty for fraudulent trading Paragraph 2 preserves the existing (lower) penalty for cases of fraudulent trading under the companies legislation in which the events occurred before the commencement of this Bill. Section 16(1)(d) of the Interpretation Act provides that "..where an Act repeals an enactment, the repeal does not, unless the contrary intention appears - ...(d) affect any penalty.. or punishment committed against that enactment..". This does not preserve a penalty for an offence when there is merely a change in the penalty (and no repeal of the existing offence). Abolition of deception offences Paragraph 3 makes transitional provision in relation to offences partly committed before the Bill comes into force. Offences committed wholly before the Bill comes into force will be covered by section 16 of the Interpretation Act. Scope of offences relating to stolen goods under the Theft Act 1968 (c.60) Paragraph 4 ensures that the Bill will not affect the operation of section 24 of the 1968 Act in relation to goods obtained before its commencement or as the result of a deception made before its commencement. Dishonestly retaining a wrongful credit under the Theft Act 1968 Paragraph 5 ensures that the Bill will not affect the operation of section 24A in relation to credits falling within section 24A(3) and (4) and made before its commencement. Scope of offences relating to stolen goods under the Theft Act (Northern Ireland) 1969 (c.16 (N.I.)) Paragraph 6 ensures that the amendments made by paragraph 11 of Schedule 1 to the Bill will not affect the operation of section 23 in relation to goods obtained as the result of a deception made before the commencement of paragraph 11. Dishonestly retaining a wrongful credit under the Theft Act (Northern Ireland) 1969 Paragraph 7 ensures that the amendments made by paragraph 12 of Schedule 1 to the Bill will not affect the operation of section 23A in relation to credits falling within section 23A(3) and (4) and made before the commencement of paragraph 12. Limiting periods under the Limitation Act 1980 (c.58) Paragraph 8 ensures that the Bill will not affect the operation of section 4 in relation to chattels obtained before its commencement or as the result of a deception made before its commencement. Limitation periods under the Limitation (Northern Ireland) Order 1989 (S.I. 1989/1339 (N.I. 11)) Paragraph 9 ensures that the amendments made by paragraph 23 of Schedule 1 to the Bill will not affect the operation of Article 18 in relation to chattels obtained as the result of a deception made before the commencement of paragraph 23. Scheduled offences under the Terrorism Act 2000 (c.11) Paragraph 10 ensures that the amendments made by paragraph 28 of Schedule 1 to the Bill will not affect the operation of Part 7 of the Terrorism Act 2000 in relation to an offence under section 15(1) of the Theft Act (Northern Ireland) 1969 where the obtaining is a result of a deception made before the commencement of paragraph 28. Powers of arrest under Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c.19) Paragraph 11 ensures that the amendment to the 2004 Act made by paragraph 33 of Schedule 1 does not affect offences committed partly before the commencement of the Bill. FINANCIAL EFFECTS OF THE BILL The Bill's provisions have negligible financial effects for Government Departments. PUBLIC SERVICE MANPOWER EFFECTS OF THE BILL The Bill has a negligible impact on public sector manpower. SUMMARY OF THE REGULATORY APPRAISAL The changes to the law on fraud carry no significant costs. The proposal to extend the offence of fraudulent trading to businesses other than companies would have an impact on non-corporate traders to the extent of making their position equal to that of corporate traders. A Regulatory Impact Assessment (RIA) has been produced for the Bill and is available on the Home Office website www.homeoffice.gov.uk/documents/cons-fraud-law-reform EUROPEAN CONVENTION ON HUMAN RIGHTS Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provision of the Bill with the Convention (as defined by section 1 of that Act). A statement of Convention compatibility has been signed in respect of the Bill. The main ECHR issue raised by the Bill is whether the new fraud offence in clause 1 of the Bill is sufficiently certain to comply with Article 7 of the Convention. It has been suggested that it is not because it is over reliant on the requirement of dishonesty, such that in practice it is a general dishonesty offence. The primary purpose of Article 7 is to prohibit retroactive criminal legislation. However, it also requires that an offence should be clearly described by law. This requirement is met where an individual can know from the wording of the relevant provision and, if need be, with the assistance of the Courts' interpretation of it, what acts and omissions will make him liable. The Home Office considers that the offence of fraud in clause 1 of the Bill meets the requirements of Article 7. It is not a general dishonesty offence. Rather, the offence is broken down into three separate parts. Each contains a dishonesty element, but provides that the dishonesty be linked to a particular act or omission, such as dishonestly making a false representation. Second, each requires that the act of omission is done for a particular purpose; namely to make a gain or cause a loss. The prosecution will need to prove each of these elements beyond reasonable doubt. Further, dishonesty itself is an element of many existing offences, is readily understood by the Courts and is the subject of considerable case law. Therefore it should be sufficiently clear to the public when the fraud offence in clause 1 of the Bill will be committed COMMENCEMENT Clause 15 of the Bill provides for the Bill's provisions to be commenced by order. |
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