Unlawful behaviour and conspiracy to defraud: a note on Barton and Booth v R  EWCA Crim 575
May 13, 2020
The common law offence of conspiracy to defraud is sometimes regarded as the bête noire of criminal offences – at least it is from the perspective of many defence practitioners. And this critical stance is not limited to those who defend such charges. The Law Commission has regarded the offence as so wide in its scope that it has no place in coherent criminal law and should be abolished [Law Com No. 276 (2002) paras.1.6 and 3.5]. The editors of Smith, Hogan and Ormerod on ‘Criminal Law’ [15th edition, 2018] put it this way; ‘The offence is one of the most controversial in English Criminal Law . . . It is excessively broad, vague and potentially criminalizes conduct by two or more persons that would not be criminal or even tortious when performed by an individual.’ [page 461]. On the other hand, it is the versatility of the offence, and its applicability to the endlessly varied character of criminal offending that makes it so attractive to prosecutors, and so necessary. A fair and accurate resolution of this conflict lies in a clear understanding of what the offence is intended to achieve and precision in its use.
In Barton and Booth v R  EWCA Crim 575, the Court of Appeal was concerned primarily with confirming the test for dishonesty in criminal offences. The Court was satisfied that the test for dishonesty as given in Ivey v Genting Casinos (UK) (trading as Crockfords Club)  UKSC 67 is correct and that the test described in R v Ghosh  QB 1053 does not apply. However, the Court dealt also with the offence of conspiracy to defraud and in particular, gave clear guidance on what is required in terms of ‘unlawfulness’ there this offence is considered [Barton paragraphs 117 to 124]. This note looks at how the Court dealt with this issue.
The elements of the offence of conspiracy to defraud were set out in Scott v Metropolitan Police Commissioner  AC 819 (pages 840 and 841) and can be summarised as follows:
- there must be an agreement to cause the victim economic loss or to put at risk an economic or proprietary interest. There need be no formality to the agreement;
- D must be party to that agreement, however informally;
- D must play a part in that agreement with the intention of putting that agreement into effect. The size of that part does not matter and putting the agreement into effect need not be D’s sole intention or purpose;
- D must be dishonest, whether by deceit, misrepresentation or otherwise.
It is ‘agreement’ that is at the heart of this offence: the law criminalises agreement where that agreement is unlawful. But the question of what is ‘unlawful’ is one of the issues that has exercised the courts in defining the appropriate limits of the offence.
A series of cases have established that ‘unlawfulness’ does not arise merely because an agreement relates to practices or behaviour that may be unattractive, unreasonable or immoral: see for example Norris v Government of the United States of America  UKHL 16, and R v Goldshield Group plc  UKHL 16. It does not matter that such agreements may not be in the public interest, for example price-fixing or cartel agreements in restraint of trade. To constitute a conspiracy to defraud there must be an unlawful element to the agreement. The situation was reviewed comprehensively by Hickinbottom J in R v Evans (Eric)  1 WLR 2817, where he concluded that a conspiracy to defraud must include unlawfulness either in its object or its means for it to be criminal [paras.29 and 138]. Agreements that seek to achieve a lawful object by a lawful means cannot constitute a conspiracy to defraud – however unattractive they may be.
This analysis has given rise to the argument that for a conspiracy to defraud, there must be unlawfulness in addition to the dishonest agreement to obtain property or proprietary rights by deceit or misrepresentation: that in effect there must be a criminal offence or some tortious act to which the dishonest agreement attaches, over and above the agreement to deceive, itself. Indeed, that was an argument advanced by the appellants before the Court of Appeal in Barton.
David Barton was the owner of Barton Park nursing home in Southport. Over a period of two decades he used his position to groom, defraud and steal from certain elderly and dependant residents. Consistent features in the case of each victim targeted were that they were wealthy, vulnerable and childless. He obtained over £4,000,000 from his criminal activities and was finally arrested as he sought to defraud the estate of one of these residents for a sum of approximately £10,000,000. After a trial of 12 months he was convicted of offences of conspiracy to defraud, fraud, theft, false accounting and money laundering. Rosemary Booth, his general manager, was convicted of participating in a number of the conspiracies to defraud.
Where conspiracy to defraud was concerned, the appellants argued that however unattractive their behaviour, it did not meet the requirements of the offence because taking it at its worst, it did not disclose any unlawfulness beyond aspects of the agreement itself: there was no criminal offence or tortious act to which the agreement attached.
However, the Court was clear that so long as the dishonest agreement includes an element of unlawfulness in its object or means, for example by an agreement to practice a deceit, there is no requirement for additional unlawfulness or aggravating circumstances [Barton para.122]. In the cases of David Barton and Rosemary Booth, ‘the necessary element of unlawfulness was the positive and extensive deceit practiced in the victims and others with the intention of prejudicing a proprietary right or interest (by obtaining property to which the appellants were not entitled).’ [Barton para.123]. No other unlawfulness was required. Both appeals against conviction were dismissed.
This analysis by the Court brings the focus of the offence back to the fundamental element of agreement itself. So long as the offence is applied to a dishonest agreement designed to obtain property or proprietary rights by a deceit or a misrepresentation, that is sufficient. Of course, the criminal law requires that the nature of this dishonest agreement and its characteristics be sufficiently well pleaded to ensure there can be no doubt as to what it applies to. But that is a matter of drafting the indictment and setting out the allegation adequately: defects in indicting conspiracy to defraud properly, and setting out adequate particulars, have proved to be fatal to prosecutions for this offence. However, that issue is distinct from legal analysis of the core elements of the offence.
It is important that there is no blurring of the distinction between the elements of the offence of conspiracy to defraud on the one hand, and the way in which that offence should be indicted on the other. The requirement to describe the specifics of the conspiracy adequately as a matter of pleading should not be allowed to transmute into a requirement that the elements of the offence itself require greater definition than the basic structure set out in Scott. That would be wrong. So long as the allegation reflects the elements of the offence of conspiracy to defraud, and so long as this allegation is translated into an indictment that is drafted with sufficient clarity and particularity, then defendants will know exactly what case they have to meet, and the prosecution will be focused upon an allegation that is clear, certain and unlawful.
Benjamin Myers QC, Nicola Daley and Ray Smith of Exchange Chambers prosecuted Barton and Booth v R at trial. Benjamin Myers QC and Nicola Daley appeared on behalf of the prosecution in the appeal of Barton and Booth v R together with David Perry QC and Katherine Hardcastle of 6KBW College Hill.