Sakalouskas, R. v

An offence of possessing an article for use in connection with fraud under Fraud Act 2006, section 6(1), requires possession with an intention that the article will be used in the course of, or in connection with, fraud at that time or in the future. It does not criminalise possession merely because the article was used in a past fraud.

A jury must therefore be directed to decide whether the requisite future intention existed when possession was alleged. A direction permitting conviction solely on proof of historic fraudulent use is a material misdirection and renders the conviction unsafe.

The appellant was convicted at Hull Crown Court of two counts of fraud by false representation and one count of possessing an article for use in fraud, contrary to section 6(1) of the Fraud Act 2006. He appealed only against the latter conviction.

The article was a 25-litre petrol can found in his car on 30 October 2012. The Crown relied on its alleged use in earlier fuel frauds. The trial judge directed the jury that it could find possession in connection with those past frauds. The central issue was whether section 6(1) required an intention that the can would be used for fraud on or after the date of possession.

1. Appeal allowed. The conviction for possession of an article for use in fraud was unsafe and was quashed.

2. Section 6(1) of the Fraud Act 2006 makes it an offence to possess or control an article for use in the course of or in connection with fraud. The court held that those words require an intention that the article will be used for that purpose. The intended use must therefore be present or future, rather than a use completed in the past.

3. The wording was materially identical to section 25(1) of the Theft Act 1968. The court applied the binding construction in Ellames [1974] 60 Cr.App.R 7: possession of an article “for use” means possession for the purpose, or with the intention, that it will be used. The words govern both use in the course of the offence and use in connection with it, including preparatory acts or escape.

4. The construction avoided criminalising an innocent person who knowingly possessed an article which another person had used for fraud in the past. Parliament's purpose was to prevent possession of articles intended for fraudulent use, not possession of articles which had merely been used previously.

5. The jury had not been directed that it had to be sure that, on 30 October 2012 or thereafter, the appellant intended the petrol can to be used to obtain fuel by fraud. The direction instead left open conviction because of past use alone. That was a misdirection, so the conviction could not stand.

• Court of Appeal (Criminal Division) — permission to appeal was granted and the appeal was treated as the full appeal. The court allowed the appeal and quashed the conviction for the section 6(1) offence: [2013] EWCA Crim 2278.
• Hull Crown Court — the appellant was convicted after trial before His Honour Judge Mettyear of two fraud offences and one offence under section 6(1) of the Fraud Act 2006.