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Conspiracy to Defraud

Published online by Cambridge University Press:  16 January 2009

T. B. Hadden
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Extract

The charge of conspiring to defraud is the most important and frequently employed branch of the law of criminal conspiracy. Yet it has been largely ignored in most general discussions of the law of conspiracy, or at best treated as a special case to be exempted from the general attack on a crime which can only be described as an agreement to act illegally. The reasons for this tacit acceptance are largely pragmatic: the charge is clearly useful in bringing to justice a significant number of persons involved in large-scale frauds who might otherwise escape prosecution. A thorough-going assessment of its place in the criminal law is nonetheless long overdue.

Type
Research Article
Information
The Cambridge Law Journal , Volume 24 , Issue 2 , November 1966 , pp. 248 - 271
Copyright
Copyright © Cambridge Law Journal and Contributors 1966

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References

* An account of the history of conspiracy to defraud is to appear in the 1967 volume of the American Journal of Legal History.

1 Central Criminal Court, Sessions Papers, Vols. 130–133, passim.

2 (1916) 25 Cox C.C. 145.

3 (1931) 45 C.L.R. 321.

4 (1916) 25 Cox C.C. at pp. 148–149, citing Cockburn C.J. in R. v. Gurney (1869) 11 Cox C.C. 414.

5 Ibid. at. p. 157.

6 R. v. Carpenter (1911)Google Scholar 22 Cox C.C. 618: the charge was of obtaining money by false pretences.

7 Ibid. at p. 624.

8 (1916) 25 Cox. C.C. at p. 160.

9 R. v. Weaver (1931)Google Scholar 45 C.L.R. 321, supra.

10 While Evatt J.'s account is succinct and accurate in most respects, he was too concerned to prove this particular point to be able to see that the real issue in many of the older cases was much more complex, and that his particular problem was only effectively raised in Warburton's Case (1870) L.R. 1 C.C.R. 274, in which it was strictly unnecessary (see the historical account referred to above). The account is an admirable demonstration of his final conclusion, but at the expense of historical perspective—superb legal argument, but not legal history. There would be little point in spending time on the differences between Evatt J.'s account and that relied on in this article; those with a particular interest in the subject must make their own comparison.

11 Ibid. at p. 354: if Evatt J. intended this as a definition of what amounts to a misrepresentation of fact, a charge of false pretences would also have lain; his elaborate historical argument was therefore partially unnecessary.

12 Since the Sessions Papers are no longer published, it has been necessary for this sample to make use of the reports of cases mentioned simply for their news value. The sample is for that reason clearly incomplete.

13 In R. v. Stock, The Times, July 28, 1961Google Scholar, the prosecution conceded that if a business was a genuine and honest one, though dishonestly conducted, a conviction could not be obtained. If this statement, which was adopted by the court (per Ashworth J.), was intended as more than an explanation of that particular case, it cannot be accepted. The false representation in such a case would not, of course, be that the business was genuine, which is true, but that it is being honestly conducted. The distinction is not particularly helpful.

14 It is also possible to argue that all prosecutions of this kind are founded on the Gaming Act of 1845, s. 17, in which it was made a criminal offence “by any fraud or unlawful device or ill practice… in wagering on the event of any game, sport, pastime or exercise” to win money from another: the conspiracy would then be to commit an existing offence. This is perhaps the best explanation of R. v. Clucas (1949) 33 Cr.App.R. 136Google Scholar, where an indictment was upheld for conspiring to defraud by falsely pretending to be a commission agent, by which means bets were made on credit, with intent to collect any winnings, but to avoid any payment for losses. A charge of simple false pretences was not possible since nothing tangible was obtained as a direct result of the false pretence. See also R. v. Clucas (1959)Google Scholar 43 Cr.App.R. 98, in which the same offender was convicted in similar circumstances of the substantive offence under the 1845 Act.

15 Kenny, Outlines of Criminal Law, 18th ed., p. 417; Williams, Criminal Law, The General Part, 2nd ed., para. 218.

16 [1960] 1 W.L.R. 163.

17 Ibid. at p. 170.

18 (1929) 45 T.L.R. 421; 21 Cr.App.R. 94.

19 [1965] 3 W.L.R. 405.

20 Ibid. at pp. 409–410.

21 It is unnecessary for our purposes to delve deeply into the difficult and related problems posed by cases in which one of the parties cannot be convicted, for example, in abortion cases, or where one or more have been acquitted: for a valuable account, see Williams, supra, paras. 214–215.

22 In R. v. Dawson, supra, the trial lasted for nine weeks, and in the lime fraud case, R. v. Griffiths, supra, for over 10 weeks.

23 [1960] 1 W.L.R. 163 at pp. 170–171.

25 Williams, supra, para. 219.

26 (1819) 2 B. & Ald. 204.

27 R. v. — (1819) 1 Chit.Rep. 698.

28 Ibid.

29 (1836) 7 Car. & P. 448 at p. 451.

30 (1843) 5 Q.B. 49 at p. 61.

31 The practice of evading the object of this rule of procedure by giving as particulars merely a reference to the depositions in the preliminary hearing was severely censured in R. v. Weaver (1931) 45 C.L.R. 321 at p. 333Google Scholar: it was held there that the particulars should be precise enough to establish the issues before the court and the jury.

32 R. v. Churchill [1965]Google Scholar 1 W.L.R. 1174, and citing R. v. Addis (1964)Google Scholar, unreported.

33 We have already mentioned that in some cases of fraudulent trading on credit the particulars may aver a false representation of being a genuine and honest concern, or some more particular false pretence.

34 In R. v. King (1844) 7 Q.B. 782 it was held that the charge itself must always disclose an indictable offence: but since a general charge of conspiracy to defraud was there held to be sufficient as long as the particular victims were specified, the decision does not assist on what form of fraud the particulars would have to reveal in order to sustain the charge.

35 See notably Wright, Law of Criminal Conspiracies (1873); Harrison, Conspiracy (1924); Winfield, The History of Conspiracy and Abuse of Legal Process (1921); Sayre, “Criminal Conspiracy” (1921) 35 Harv.L.R. 393; and Goldstein, “Conspiracy to Defraud the U.S.” (1958) 68 Yale L.J. 405.

36 These aspects of the law are dealt with in the historical survey mentioned above, which is being prepared for publication.

37 R. v. Jones (1832) 4 B. & Ad. 345 at p. 349.

38 R. v. Peck (1839) 9 A. & E. 686 at p. 690: “I do not think the antithesis very correct.”

39 Re London & Globe Finance Corporation [1903] 1 Ch. 728 at p. 732.Google Scholar

40 “Intent in Forgery—II” (1965) 28 M.L.R. 286.Google Scholar

41 R. v. Carlisle (1854) 6 Cox C.C. 366.

42 R. v. Parker and Bulteel (1916)Google Scholar 25 Cox C.C. 145.

43 R. v. Clucas (1949)Google Scholar 33 Cr.App.R. 136.

44 Edgington v. Fitzmaurice (1885) 29 Ch.D. 459 at p. 483 (per Bowen L.J.).

45 See generally Sheridan, L.A., Fraud in Equity (1957).Google Scholar

46 “Conspiracy to Defraud the U.S.” (1958)68 Yale L.J. 405.

47 R. v. Esdaile (1858) 1 F. & F. 213; R. v. Burch (1865) 4 F. & F. 407; R. v. Gurney (1869) 11 Cox C.C. 414; R. v. Aspinall (1876) 1 Q.B.D. 730; 2 Q.B.D. 48: see also R. v. De Berenger (1814) 3 M. & S. 67.

48 R. v. Lewis (1869) 11 Cox C.C. 404; R. v. Hudson (1860) 29 L.J.M.C. 145; and the cases noted in the 1963–64 sample above.

48a N.S.L. Ltd. v. Romford Stadium, The Times, Dec. 7, 1965.Google Scholar

49 The situation is comparable with that where a number of persons agree to boycott another's business, or to pack out his auction rooms in order to exclude any genuine bidders: it is now settled law that in the absence of some independently illegal act, for example, violence or misrepresentation, such concerted action does not amount either to a crime or even to a tort. The incidental concealment of the purpose of the manoeuvre, or of the fact that the action is concerted, is irrelevant since there can be no duty to disclose this.

50 Prevention of Fraud (Investment) Act, 1958; Protection of Depositors Act, 1963.

51 Auctions (Bidding Agreements) Act, 1927: the existing authorities seem to suggest that such an agreement would not be indictable: Doolubdass v. Ramloll (1850) 5 Moo.Ind.App. 109; Rawlings v. General Trading Co. [1921] 1 K.B. 635.Google Scholar

52 It is also essential that overlapping charges be excluded as far as is possible: see R. v. Dawson [1960]Google Scholar 1 W.L.R. 163. This should, of course, be facilitated by the general unification of the law of criminal fraud referred to below.

53 See the historical survey mentioned above.

54 30 Geo. 2, c. 24.

55 R. v. Pywell (1816) 1 Stark. 402; R. v. Kenrick (1843) 5 Q.B. 49; and R. v. Levine (1867) 10 Cox C.C. 374.

56 R. v. Peck (1839) 9 Ad. & R. 686.

57 R. v. Goodhall (1821) R. & R. 461.

58 R. v. Pear (1779) 1 Leach 212: see also a much earlier case, R. v. Chissers (1678) T.Raym. 275.

59 32 & 33 Vict. c. 62, s. 13.

60 R. v. Jones [1898]Google Scholar 1 Q.B. 119.

61 (1794) 2 Leach 647.

62 Prevention of Fraud (Investment) Act, 1939, s, 12.

63 [1956] 2 Q.B. 424.

64 [1964] A.C. 210.