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Conspiracy to Defraud

  • 18-12-2013 7:29pm
    #1
    subrosa
    Registered Users Posts: 64 ✭✭


    Recently several people have been charged with the Common Law offence of conspiracy to defraud the public in relation to activities at Anglo Irish Bank. How does the decision of the DPP, to opt for this charge, sit with the decision in Minister for Justice Equality & Law Reform -v- Tighe [2010] IESC 61.

    A follow on question is why the Director opted for this offence rather than a statutory offence. Are the proofs different and if so what is gained by the prosecution by bringing this charge?

    To be clear I don't think it's helpful to discuss the case at hand, I'm simply interested in the offence from an academic point of view.


Comments

  • #2
    Pro Hoc Vice
    Closed Accounts Posts: 6,087 ✭✭✭Pro Hoc Vice


    Tighe was a EAW case, 4 charges on the warrant the question was is conspiracy a listed offence under the framework decision. In brief if the requesting country says its an offence under the framework decision then we don't have to prove correspondence. The UK invoked this provision the courts decision,

    "However, in considering three of the four offences in question here, it may not be necessary to debate the question of correspondence, because correspondence is not relied upon in the warrant. On the contrary, it is certified that these three offences are within the list of criminal conduct in the Framework Decision and then, later in the warrant, that they are not. In my view it is uniquely for the issuing State to say whether and if so where in the list of actions set out in the Framework Decision the offence for which they want to put a person on trial is to be found. The decision to charge conspiracy in this case was that of the United Kingdom Revenue Authorities and both the conflicting certifications, that conspiracy is/is not an offence within the Framework Document list, is also of their making.

    I would decline to order the delivery of the applicant on these charges."

    In relation to one of the 4 charges it related to cheating revenue at common law, the Court said,

    "In this case, the warrant does not at all specify the circumstances in which this offence is alleged to have been committed. The contents of the warrant insofar as this offence is concerned, is found at the end of p.4 and the beginning of p.5 and consist entirely of a number of statements of law. There is no statement whatever specific to the accused in respect of this offence. Remarkably, it is not even asserted that he was obliged to disclose his income to the United Kingdom Revenue Commissioners, in the first place."

    So if the offence of defrauding the public purse is still a common law offence (I have no idea) then conspiracy is and I can not see how Tighe changed that.

    I had a quick look at one possible anglo case the only charges I could find relate to statutory offences, can you link to the charges in full.


  • #3
    subrosa
    Registered Users Posts: 64 ✭✭subrosa


    Thanks. I suppose the question was really if the Common Law offence still existed. In Tighe the court stated.
    it is clear that there is no offence in Ireland of conspiracy to cheat the Revenue
    I'd imagine that there is some difference between defrauding the public and defrauding the revenue and I wondered if anyone could explain it.
    infosys wrote: »
    I had a quick look at one possible anglo case the only charges I could find relate to statutory offences, can you link to the charges in full.

    The only info I have is from the Irish Times article.


  • #4
    hullaballoo
    Administrators, Entertainment Moderators, Social & Fun Moderators, Society & Culture Moderators Posts: 18,750 Admin ✭✭✭✭✭hullaballoo


    Moderator: folks, please remember the charter and particularly the sub judice rule.

    This is obviously relating to an ongoing case so please bear in mind the limitations of discussing it.


  • #5
    Pro Hoc Vice
    Closed Accounts Posts: 6,087 ✭✭✭Pro Hoc Vice


    subrosa wrote: »
    Thanks. I suppose the question was really if the Common Law offence still existed. In Tighe the court stated.

    I'd imagine that there is some difference between defrauding the public and defrauding the revenue and I wondered if anyone could explain it.



    The only info I have is from the Irish Times article.

    You bring up an interesting question, but the Criminal Justice (Theft and Fraud Offences) Act 2001 says:

    3.—(1) Subject to section 65 , the Acts specified in Schedule 1 are repealed to the extent specified in the third column of that Schedule.

    (2) Any offence at common law of larceny, burglary, robbery, cheating (except in relation to the public revenue), extortion under colour of office and forgery is abolished.

    I have never come across either Fraud of the Public Revenue or Fraud of the Public at Common Law.

    Tighe does indeed seems to say that such a crime as Fraud in relation to the Public Revenue is too vague and may be in breach of the Constitution but the SC did say,

    "Bearing in mind the decision of this Court in Hilton, this is a further reason to conclude that there is no basis whatever for saying that the Common Law offence of cheating the Public Revenue as it is found in England (and, as far as I am aware, only in England) has any equivalent whatever in Ireland.
    It thus appears that, though the Common Law offence
    is still extant in the U.K."

    And "    Whether an offence corresponds to an offence in Ireland depends on whether the acts constituting the offence, as disclosed in the warrant or associated material, correspond to an offence in this country. This charge is one which has been held not to exist as, or correspond to, an offence in Ireland (see Hilton above). The particulars given in the warrant are entirely silent on any question of fraud, or any specific deception or misrepresentation. The entirely negative offence of failing to make a disclosure of one’s income does not fit at all obviously within any of the headings in the Framework Document, and certainly not either of the two headings which have been ticked. “Fraud” is not specified as an ingredient of the offence (presumably, as we have seen above, because the U.K. Courts have held that fraud is unnecessary to constitute it) and no information as to the “circumstances” of the offence are given which would allow one to conclude either that it corresponds to any other offence actually existing in Ireland or that it is within the conduct described in the Framework Document list."

    This will be very interesting because if the SC has said the Common Law OFfence of Fraud on the Public Revenue did not survive in the New State or the 37 constitution then I can only assume that Fraud on the Public unless it is some totally differenet beast did not survive. A good find on the Tighe case. I will have an interesting lunch discussing this.


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