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Fraud Bill [HL]

moved Amendment No. 15:"Page 2, line 19, after ““dishonestly”” insert ““and secretly””" The noble Lord said: The noble Lord, Lord Goodhart, described the last amendment as ““semi-probing””. In my military days, my commanding officer was the late, lamented, Lord Vivian. I well remember him hovering over a luckless tank troop leader and asking him whether he was in a tactical or a non-tactical situation. The poor man replied, ““Well, I’m semi-tactical, sir””. I shall not tell you what Lord Vivian’s response was. This is not a ““semi-probing”” amendment, but a proper, full-blown amendment that has some outside support, I might say. We believe that secrecy should be a requirement of fraud by abuse of position. If the victim knows what is happening, the defendant’s conduct cannot be considered as fraudulent. The consultation paper proposed that there should be one exception to the requirement of secrecy in cases where the defendant believes that the victim is unaware of the   abuse, but is wrong in that belief. The Law Commission report stated at paragraph 7.42 that this exception would, for instance, apply in cases where the defendant was under police surveillance. However, the exception is worded far more broadly than that. For instance, suppose a defendant employee uses a company telephone for private purposes. The employer knows and is agreeable to that, given that company policy allows employees to use telephones for private purposes. However, the employee does not know that the employer knows and does not know that employees are permitted to use the telephones for private purposes. On the current wording of Clause 4, that would probably amount to fraud, although we can see no reason why that should be the case. That view is shared by Liberty. The Criminal Law Solicitors’ Association also stated that,"““secrecy is an essential element of this offence””." Indeed, the CPS said:"““In the absence of an element of secrecy, it is accepted that the new offence would probably be too wide””." I beg to move.