Correct on the date of publication - 17 November 2025

Question: 

I am investigating a complicated fraud, can I charge all ten people with the common law offence of conspiracy to defraud or must they be charged with specific offences under the Fraud Act 2006?

Answer:

'Conspiracy to defraud' captures an agreement by one person with any other person or persons that a course of conduct shall be pursued to dishonestly deprive a person of something which is his, or to which he is or would be or might be entitled to. It must be given a wide enough meaning to embrace every conspiracy the objective of which was dishonestly to injure some proprietary or other right of the victim. The offence was confirmed in statute following section 12 of the Criminal Justice Act 1987. It does not create a statutory offence, it is still contrary to common law, but it provides for charges of the offence and the penalty. Section 12 of the Act provides that common law conspiracy to defraud may be charged even if the conduct agreed upon will involve the commission of a statutory offence. The Attorney General issued guidance for prosecutors on the use of the offence. 

The guidance divides cases into two types -

a) Conduct that can more effectively be prosecuted as conspiracy to defraud.
b) Conduct that can only be prosecuted as conspiracy to defraud.

The guidance describes situations where the common law offence is more appropriate. Such cases may involve the following -

  • Evidence of several significant but different kinds of criminality
  • Several jurisdictions involved
  • Different types of victims, e.g. individuals, banks, web site administrators, credit card companies
  • Organised crime networks
Trying to use statutory offences would lead to large numbers of separate counts, severed trials for single or discrete groups of conspirators and evidence from one severed trial might not be admissible in other trials. The result of this would be that the courts would not be shown the full nature and breadth of criminality of the defendants. By wrapping it all up in one charge of conspiracy the court could see the full picture and makes the task of the jury and sentencer much easier. It is because of this that defence lawyers do not like the offence.

View the full Legal Q&A document here, with links to related and similar legal questions.

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