R v Scott (Scott v Metropolitan Police Comr)

Conspiracy to defraud does not require an agreement to deceive the intended victim. Where the victim is a private person, the conspirators must dishonestly intend to cause economic loss by depriving that person of property or a present, future or possible right. Dishonestly injuring a proprietary right also suffices.

The intended means need not include a fraudulent misrepresentation. Dishonesty of any kind is sufficient. The abolition of the substantive common law offence of cheating by the Theft Act 1968 did not abolish the distinct common law offence of conspiracy to defraud.

The appellant agreed with cinema employees that films would be removed temporarily, without their employers’ permission, for the commercial production and distribution of infringing copies. He pleaded guilty at the Central Criminal Court to conspiracy to defraud and to conspiracy to contravene section 21(1)(a) of the Copyright Act 1956, after the trial judge rejected his submission that conspiracy to defraud required deceit.

The Court of Appeal dismissed his appeal against conviction but reduced his sentence. It certified whether the Crown had to prove an agreement to deprive by deception, or whether dishonest prejudice to another’s rights without lawful justification was sufficient. The appellant also argued that the Theft Act 1968 had abolished conspiracy to defraud and that the common law charge could not lie where the conduct also constituted a statutory summary offence.

1. Appeal dismissed unanimously. Viscount Dilhorne delivered the leading speech. Lord Reid, Lord Diplock, Lord Simon of Glaisdale and Lord Kilbrandon agreed that the conviction should stand.

2. Per Viscount Dilhorne, fraud is not confined to conduct involving deceit. The object of a conspiracy must be distinguished from the means intended to achieve it. In its ordinary use, to defraud means dishonestly to deprive a person of something belonging to that person, or something to which that person is, would be or might become entitled. An agreement dishonestly to injure another’s proprietary right also constitutes conspiracy to defraud.

3. Per Lord Diplock, where the intended victim is a private person, the conspirators’ purpose must be to cause economic loss by depriving the victim of property or a right, whether corporeal or incorporeal, to which the victim is or might become entitled. The intended means must be dishonest, but need not involve the fraudulent misrepresentation required for the civil tort of deceit. Dishonesty of any kind is sufficient.

4. The appellant’s conduct satisfied those requirements. The clandestine bribery of cinema employees was dishonest. Copying and hiring out the films caused more than nominal damage to the goodwill of the copyright and distribution-right owners, deprived them of profits which they might otherwise have earned, and inflicted pecuniary loss.

5. Per Viscount Dilhorne and Lord Diplock, section 31(1)(a) of the Theft Act 1968 abolished the narrower substantive common law offence of cheating, subject to the public-revenue exception. It did not mention fraud or conspiracy to defraud. The latter had developed as a distinct common law offence and therefore survived intact.

6. Per Viscount Dilhorne, section 33 of the Interpretation Act 1889 permitted prosecution at common law where the conduct also constituted a statutory offence, while preventing double punishment. The existence of the offence under section 21(1)(a) of the Copyright Act 1956 therefore did not preclude conviction for conspiracy to defraud.

7. Lord Diplock added that, where the intended victim performs public duties, it is sufficient that the conspirators dishonestly intend to cause that person to act contrary to public duty; economic loss need not be intended. That question did not arise for decision because the victims here were private persons.

1. House of Lords: Dismissed the appeal and affirmed the conviction for conspiracy to defraud.

2. Court of Appeal (Criminal Division): Dismissed the appeal against conviction, reduced the sentence on the conspiracy-to-defraud count from two years to one year, and certified a point of law of general public importance.

3. Central Criminal Court: Judge Hines rejected the submission that conspiracy to defraud required deceit. The appellant then pleaded guilty and received sentences of two years and one year on the relevant counts.