Conspiracy to Defraud

Conspiracy to defraud is a common law offence. The abolition of the common law offence of conspiracy in the Criminal Law Act 1977 does not affect the offence of conspiracy to defraud.

The offence of conspiracy to defraud requires that two or more individuals dishonestly conspire to commit a fraud against a victim. The offence is extremely wide. It is sufficient for the fraudsters to know that the result of their actions will necessarily result in the defrauding of the victims. The fraudsters do not have to intend to defraud the victim as the primary purpose of the conduct. The offence does not require deception or an intent to cause financial loss.

Acts which may be non-criminal, for example a tort, may become criminal where a conspiracy to defraud exists. In other words an act can be carried out by one Defendant independently and this act would not amount to a criminal offence. Conversely the same act carried out by two persons may constitute an offence of conspiracy to defraud.

Conspiracy to defraud requires an element of dishonesty. However the current definition of dishonesty means that activities which may not normally be a criminal offence may be found to be fraudulent if a jury finds them to be dishonest. Consequently prosecutors have an extremely wide discretion as to whether to commence criminal proceedings for conspiracy to defraud and this can potentially result in unfair prosecutions.

Under the Home Office Consultation paper referred to above, the offence of conspiracy to defraud would be abolished in favour of the two general fraud offences.