Fraud: Offences, Ontology, and Connections

As a collection of offences, fraud is ontologically problematic. Fraud offences have existed at the interface of civil law and criminal law for hundreds of years and it is this interconnectedness that has resulted in fraud and financial misconduct being viewed with ambivalence in the twenty first century.²³⁹

Upon the introduction of the Fraud Act in 2006, the Attorney-General claimed the law had previously been ‘too precise, overlapping and outmoded to give effective coverage over the breadth of frauds committed today’.²⁴⁰ Certainly by the twenty first century, fraud and financial misconduct were legislated for in great detail.

Increased opportunities and mechanisms for committing contemporary frauds are simultaneously mirrored by the increased criminalisation of financial misconduct, which is far greater than in the eighteenth century. However, the dislocation between the existing laws against fraud and how these were applied to everyday offending was no less apparent in the eighteenth century. As shall be demonstrated in this chapter, fraud’s existence in legal no man’s land has caused great confusion for both the public and legal professionals since the twelfth century.

In the eighteenth century, there were accusations that the laws surrounding fraud were as equally outmoded as expressed by the Attorney-General in 2005. In a 1753 open correspondence to the Duke of Newcastle, the famous magistrate, Henry Fielding lamented:

“Trade being alarmed, complained to the above magistrate, who apprehended many of these cheats. But as the laws then in being were insufficient to bring them to justice, they mostly escaped punishment; and

239 For modern discussions of fraud and white collar crime see: John P. Locker and Barry Godfrey, Ontological Boundaries and Temporal Watersheds in the Development of White-Collar Crime.

British Journal of Criminology (2006) 46, 976-992; Shapiro, American Sociological Review;

Sutherland American Sociological Review; Sarah Wilson, Origins; Wilson and Wilson, Journal of Criminal Law.

240 Speech to Annual Financial Crime Conference, 15 November 2005 https://publications.parliament.uk/pa/ld200506/ldhansrd/vo050622/text/50622-04.htm

(accessed 2nd January 2016)

61 the tradesman, beside the loss of their goods, were put to additional, fruitless expenses”.²⁴¹

The central focus of this chapter is to identify the defining characteristics of fraud offences during this period. Furthermore, this chapter will also explore how the law developed from the Tudor period to the eighteenth century, illustrating how these laws undulated between very narrow, and very broad application. In exploring these changes, this chapter will go on to explain why these laws changed in the way that they did, and will contextualise the state of the law and the offences available to prosecutors of fraud from 1760 to 1820.

In exploring the central offences that made up the laws of ‘fraud’, this chapter will further demonstrate why the law was not always fit for purpose during the eighteenth century. The enforcement and operation of these laws will then be explored alongside how these fraud offences operated within the wider law. Through more traditional legal methods of researching statutory and case law, the central doctrines and ontology of fraud offences will be identified in order to better demonstrate how fraud was positively defined. Fraud offences will then be negatively defined by comparatively drawing out the contrasts with other criminal offences of the time.

An even wider contextualisation of fraud offences will be illustrated through an exploration of the laws of fraud in comparison with civil law doctrines, particularly those relating to contract law. It will reveal that pre-1757 law resulted in many prosecutors being left without recourse to the criminal law due to the limitations of the doctrines underpinning fraud, or due to the lacunae created where fraud intersected with other areas of law.²⁴² This will in turn demonstrate how the laws developed post-1757 in order to extend the application of fraud offences and provide greater recourse to the criminal courts for prosecutors. This will begin to

241 John (and Henry) Fielding: An Account of the Origin and Effects of a Police set on Foot by the Duke of Newcastle 1753, p.17

242 Thorsten Beck, Asli Demirguc-Kunt and Ross Levine “Law and finance: why does legal origin matter” Journal of Comparative Economics 31 (2003) 653-675

62 demonstrate how these developments reflect a shift in jurisprudence, with the sympathies of the court beginning to favour particular actors, namely shopkeepers and those extending credit.

In first exploring the definitions and blackletter law surrounding fraud offences, this chapter will introduce the foundations of knowledge necessary to answer the three central questions of this thesis. The first question - what was fraud? - is partially answered in that the doctrines and offences of fraud will be identified. As stated in the introduction to this thesis, an initial doctrinal approach to the definition of fraud will be taken in order to define fraud offences. In identifying the black letter laws of fraud and then seeking to understand how these laws developed by identifying the underlying doctrinal framework shaping this jurisprudence, this allows for a second stage in the identification of eighteenth century fraud, that being how was fraud enforced. In the chapter following this one, the choices of litigation open to prosecutors of fraud will be considered and this can only be done having first identified the types of fraud offences.

The second central thesis question of who was prosecuting fraud, will also require a foundational understanding of the development of the law in this area. How the jurisprudence developed reflects the social, economic, and political priorities of the time. Many of the cases explored in this chapter were decided in the appellant court, known as the Twelve Judges. There were very limited opportunities for appeal within the English legal system and the Twelve Judges was the only available forum within the system where points of law could be clarified and the common law honed.

These judges sat in trials of first instance across the justice system, and in all courts, both civil and criminal. This multiple jurisdiction of the judicial system is significant as those individual judges had a firm grasp of the legal developments across all areas of law. Consequently, developments in contract law, or property law, may have influenced the jurisprudence relating to the criminal law, and vice versa. This cross-pollination of doctrines is particularly relevant to fraud offences that, as argued in the introduction to this thesis, sat at the interface between the criminal and the civil

63 law. In explaining this interconnection in more detail, we can better understand how the laws of fraud developed and why.