Conspiracy to defraud: A prosecutor’s guide to the common law and statutory offences

Introduction

A dishonest agreement between two or more persons to defraud another can be a criminal offence in two overlapping ways: under the common law offence of conspiracy to defraud or the statutory offence of conspiracy to commit fraud under the Fraud Act 2006. From the perspective of the prosecutor (including the private prosecutor), which is the more appropriate charge to lay in a particular case, and why?

This article considers the elements of each of the two “conspiracies to defraud”, explores their conceptual overlap, and discusses the key differences between the two offences. With reference to the Attorney General’s Guidance and The Code for Crown Prosecutors, it concludes by discussing best practice for charging in cases of conspiracies to defraud where either offence is available.

Origin and elements

Common law conspiracy to defraud

“Conspiracy to defraud” is a common law offence. The elements of the offence were described in the leading case of Scott v Metropolitan Police Commissioner as an “agreement by two or more [persons] by dishonesty to deprive a person of something which is his or which he is or would be or might be entitled” or to “injure some proprietary right of his”.[1] The elements of the offence are also broad enough to capture an agreement between two or more persons to deceive a person into acting contrary to a duty (whether a public duty or a duty owed to their clients or employers).[2]

The common law offence accordingly requires, as elements:[3]

  1. A dishonest agreement between two or more persons;[4]
  2. Some unlawfulness, either as to the object of the agreement or the means by which it will be carried out; and
  3. Within the agreement, an intention to:
    1. Injure, or potentially injure, the proprietary right or interest of the potential victim; or
    1. Deceive a person into acting contrary to a duty.

However, the breadth of the common law offence is illustrated by the following considerations:

  1. The dishonest agreement need not involve any intent to deceive (at least in cases not involving contravention of a “duty”);[5]
  2. There need not be an intention for the actual fraud to be carried out by any of the parties to the agreement themselves – it can be carried out by a third party;[6]
  3. The required “unlawfulness” need not be an intention to commit any substantive criminal offence – it includes some civil wrongs.[7] This is significant – the dishonest agreement between multiple parties can transform into a crime that which would not be criminal if committed by one person;
  4. The offender need not intend to make any actual gain – it is the intended impact on the victim that constitutes the fraud;[8] and
  5. The intended harm to the victim need not be financial or economic loss – so long as there is an intention by the defendant to “prejudice another’s rights”, that will suffice.[9] For example, an intention to infringe on another’s rights, such as by exploiting another’s patent in the absence of a legal duty to disclose information about its existence,[10] is captured even if no financial or economic loss to the victim is intended.

This breadth allows prosecutors to capture, within a single count, overarching agreements to carry out multiple different frauds against various victims, and to present a continuing course of fraudulent conduct in a simple manner to the fact-finder. For this reason, common law conspiracy to defraud has been described as the “prosecutor’s darling”, and consistently endorsed and utilized by prosecuting authorities.[11] But it’s not all romance – this breadth can cause prosecutors to fail to conduct a sufficiently rigorous assessment of the basis of the charge.[12]

Common law conspiracy to defraud is an indictable only offence, punishable by up to 10 years’ imprisonment, an unlimited fine, or both.[13]

Statutory conspiracy

The Fraud Act 2006 introduced (among other offences) a single offence of fraud that can be committed in three ways:[14]

  • Fraud by false representation (s 2);
  • Fraud by failing to disclose information (s 3); or
  • Fraud by abuse of position (s 4).

Common to each form of statutory fraud is a requirement of “dishonesty” (as is required under the common law offence) and an intention that the offender either:

  1. Make a gain for himself or another; or
  2. Cause loss to another or expose another to a risk of loss.

Conspiring to commit fraud under the Fraud Act is also a statutory offence, under s 1 of the Criminal Law Act 1977. Under that Act, a person is guilty of the statutory offence of conspiracy if they:

… [agree] with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either—

(a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or

(b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible, …

The result is that the statutory offence of conspiracy to commit fraud is committed in the following circumstances:

  1. Two or more persons have agreed to pursue a course of conduct; and
  2. If that course of conduct is carried out in accordance with their intentions, one or more of the parties to the agreement would commit fraud under the Fraud Act 2006 (or would do so but for the existence of facts rendering such commission impossible).

Conspiracy to commit fraud under the Fraud Act is also an indictable only offence, and is subject to the same maximum penalty as for the substantive offence itself – namely, 10 years’ imprisonment, a fine, or both.[15]

Comparison between the common law and statutory conspiracies to defraud

The common law and statutory offences have a clear overlap – both involve agreements between two or more persons dishonestly to defraud some other person. Both are also inchoate offences – no actual fraud need be committed; it is the entering into the agreement (the conspiracy) that constitutes the offence. Both are subject to the same maximum penalty. Both offences are ‘Group B’ offences for the purposes of establishing the territorial jurisdiction of the courts of England and Wales via the Criminal Justice Act 1993.[16]

Whilst both offences will be available in some circumstances, the common law offence is broader. Indeed, only the common law offence will be available in a case where either:

  • The parties to the agreement intend for the actual fraud to be carried out by a third party (someone outside of the conspiracy);[17] or
  • If the agreement is carried out according to the parties’ intentions, it would not constitute fraud under the Fraud Act, but involve some other form of unlawfulness.  

So, there is clear daylight between the two offences, and the circumstances of the case may dictate the appropriate charge. But, in light of their overlap, which charge should the prosecutor prefer when both charges are available?

The charging decision where both offences are available

Where both charges are available, prosecutors have a choice to make.[18] In 2007, the Attorney General issued guidance to prosecutors on the use of the common law offence in light of the enactment of the Fraud Act 2006. That guidance dictates that, in cases where both charges are available, a charge of statutory conspiracy (or a substantive statutory offence) should be preferred to a charge of common law conspiracy, unless there are good reasons for doing otherwise.[19] Such reasons include:

  • A statutory conspiracy charge, or multiple such charges, would not adequately reflect the gravity of the offence, such as by failing to capture a wider dishonest objective by the offender(s).
  • Such an approach would, contrary to the interests of justice, fail to present to a court an overall picture of the offending, such as in cases involving:
    • Evidence of various significant but different kinds of criminality;
    • Multiple jurisdictions;
    • Different types of victims (e.g. individuals, banks, companies); and/or
    • Organised crime networks.
  • Where charging a series of statutory conspiracies could lead to:
    • Large numbers of counts reflecting the individual conspiracies;
    • Severed trials; and/or
    • Evidence in one severed trial being deemed inadmissible in another.

The Code for Crown Prosecutors also needs to be taken into account, which specifies (at 6.1) that prosecutors should select charges which (inter alia):

  • Reflect the seriousness and extent of the offending;
  • Give the court adequate powers to sentence; and
  • Enable the case to be presented in a clear and simple way.

Evidently (and as has been pointed out elsewhere[20]), the prosecutor’s decision as to which charge to pursue is neither mechanical nor straightforward and involves the exercise of judgement. Whilst recognising this judgement, and also matters such as the interests of justice, the following basic framework can be adopted:

  1. Does the offending satisfy the elements of one or more statutory conspiracies?
    1. If not, only the common law offence should be considered.
  2. If so, how would the case be presented under one or more charges of statutory conspiracy? Would such an approach be capable of adequately capturing the nature and extent of the offending as a whole in a single trial, and in a clear and simple way?
    1. If so, one or more statutory conspiracies should be preferred.
    1. If not, there may be good reasons for preferring a charge (or charges) of common law conspiracy to defraud, in the interests of justice, and according to the particular circumstances of the case. In such cases, prosecutors should carefully consider:
      1. The legal basis of the charge as it is contained within the indictment; and
      1. Whether the use of a single, or fewer, common law conspiracy charges adequately captures the gravity of the offending, including for sentencing purposes.

Key takeaways

From this analysis, the following key takeaways can be drawn:

  • The same conduct may give rise to possible charges under the common law offence of conspiracy to defraud and also the statutory offence of conspiracy to commit fraud under the Fraud Act 2006 and s 1 of the Criminal Law Act 1977.
  • The common law offence is broader than the statutory offence and can capture conduct where the actual fraud is intended to be committed by someone outside the conspiracy, or where the conspiracy, if successful, would not amount to fraud under the Fraud Act 2006. In both such circumstances the statutory offence is unavailable.
  • Where both charges are available, prosecutors should first consider (in accordance with the Attorney General’s guidance) whether the case against the defendant(s) can be adequately presented using one or multiple statutory conspiracy charges. If so, statutory charges should be preferred.
  • If there are good reasons why such an approach would be inappropriate (i.e. adopting such an approach would fail to capture the gravity of the offending as a whole or may lead to multiple separate trials for one overarching conspiracy) the common law offence provides a useful tool to present fact-finders with the full scale of the fraud in a simpler indictment.
  • When using the common law offence, prosecutors should be careful to conduct a properly rigorous legal analysis of the case and to capture the case against the accused in an appropriately clear indictment.

Freddy Faull  

[1]            Scott v Metropolitan Police Commissioner [1974] UKHL 4, [1975] AC 819, per Viscount Dilhorne at 840.

[2]            Wai Yu-Tsang v The Queen [1992] AC 269 (PC). For a more detailed discussion of the scope of the offence, different perspectives on whether the authorities retain two versions of the offence or one, and the necessity of “deceit” in “duty” cases, the reader is referred to A Shaw KC and T Forster, “Conspiracy to defraud” (Practice Note, Practical Law), and Murphy, Blackstone’s Criminal Practice (Oxford University Press, 35th ed, 2025): Chapter A5: Inchoate Offences, A5.64 (Westlaw).

[3]            See R v Barton [2020] EWCA Crim 575 at [117]-[126], for recent treatment of the common law offence and its scope.

[4]            Per the Supreme Court’s decision in Ivey v Genting Casinos (UK) Ltd t/a Crockford [2017] UKSC 67, the test for dishonesty in criminal matters now aligns with the two-stage test in civil actions, with the fact-finder considering: (1) What was the defendant’s actual state of knowledge or belief as to the facts? And (2) Based on the defendant’s (subjective) knowledge or belief about those facts, was their conduct dishonest by the objective standards of ordinary decent people? There is no requirement that the defendant must realise that what s/he has done is, by those standards, dishonest.

[5]            R v Barton [2020] EWCA Crim 575at [121]. See the resources cited in note 2 above for more detail on the requirement of “deceit” in “duty” cases.

[6]            R v Hollinshead [1985] AC 975 (HL).

[7]            E.g. R v Warburton (1870)LR 1CCR 274 (agreement to deprive a partner of his just share of the property or profits of the partnership); Kamara v DPP [1974] AC 104 (conspiracy to trespass and unlawful assembly).

[8]            Welham v DPP [1961] AC 103, per Lord Radcliffe at 123.

[9]            R v Barton [2020] EWCA Crim 575 at [121].

[10]          Attorney General’s Office, “Use of the common law offence of conspiracy to defraud” (Gov.uk, 29 November 2012, first published 2007).

[11]          R v Saik [2006] UKHL 18, per Lord Brown at [123]. For a recent iteration of such support, see “Post-Legislative Assessment of the Fraud Act 2006: Memorandum to the House of Lords Select Committee for the Fraud Act and Digital Fraud” (Gov.uk, 8 June 2022).

[12]          See, for example, Evans v Serious Fraud Office [2015] EWHC 263 (QB).

[13]          Criminal Justice Act 1987, s 12(3).

[14]          Fraud Act 2006, ss 1-4.

[15]          Criminal Law Act 1977, s 3(3), and Fraud Act 2006, s 1(3)(b).

[16]         Criminal Justice Act 1993, s 1(3).

[17]          However, where the conspiracy is to make, adapt, supply or offer to supply articles to be used in fraud, s 7 of the Fraud Act may apply.

[18]          Criminal Justice Act 1987, s 12(1).

[19]          Citing R v Rimmington (2005) UKHL 63, per Lord Bingham.

[20]          A Smith and J Hume, “Conspiracy to defraud: “prosecutor’s darling” or charge of last resort?” (Practical Law, 31 May 2022).