You may remember that last week Mrs. Patel appeared at Harrow Magistrates’ Court; she’s being prosecuted by Harrow Council under section 2 of the Fraud Act 2006, the accusation being that she gave a false address in order to get her son into a particular school. She’s pleaded not guilty, and says she was genuinely living at her mother’s at the relevant time.
First of all, aside from this particular case, let me say I have no difficulty in principle with this kind of prosecution. I can well imagine that parents do lie sometimes to gain places at desirable schools, and I disagree that merely rescinding the place is enough to tackle this. If that’s all councils did about it, then parents who cheat would be no worse off for their cheating; you might as well cheat, because the very worst possible outcome would be the same as if you’d acted honestly in the first place. I wouldn’t be at all happy with that, and (unpopular though it is at the moment) I’d much rather allow councils to use legal powers to investigate – if need be by surveillance – and prosecute any offences, than to see social advantage gained by lies. Because if you’re relaxed about this sort of parental behaviour, it means you’re relaxed about the fact that the children of honest parents are as a result sent to worse schools and perhaps worse lives. Compared to that injustice, the impact of councils’ action on the civil liberties of a few parents is laughably insignificant.
But legally, I’m interested in the charge here. Under section 2, fraud is only committed if a false representation is made with intent to gain, or cause loss to another; and section 5 makes clear that means gain or loss in money or other property. To convict, then, in a case like this, the council must succeed in arguing that a school place is some sort of property (even assuming it can prove any false representation has been made in the first place, which Mrs. Patel denies of course). But is it? Property needn’t be a tangible thing – copyright is a form of property, for instance – but it seems a stretch to see a school place as an enforceable right or entitlement akin to property. The alternative would be to argue that wrongly allocating a school place would somehow mean the council lost money – but surely it costs the same to allocate a place to one child as it does another.
No wonder there’ll be legal argument at the hearing on 8 July.
I have no problem with councils using surveillence to investigate criminal offences – this is unlikely to be a breach of Article 8. What does offend against human rights is using surveillence to investigate non-existent offences. Councils are in a better position than most of us to lobby the government for a change in the law.
I agree with James. There is no evidence of a criminal offence here – in fact the whole subject lies outside the scope of the 2006 Fraud Act – and the council is on very thin ice, to say the least, in using RIPA powers to investigate non-offences.
Head of Legal – I think the wording of the Act to be sufficiently clear on what “gain” means.
Looking at the whole of s5(2):
“(2) “Gain” and “loss”—
(a) extend only to gain or loss in money or other property;
(b) include any such gain or loss whether temporary or permanent;
and “property” means any property whether real or personal (including things in action and other intangible property).”
This makes it clear that the Act covers virtually everything recognised in law as “property.” “Things in action” are presumably what we used to refer to as “choses in action”?
Digging out my ancient Snell on Equity (27th Ed 1973) I see that “chose in action” refers to all personal rights of property which can only be claimed or enforced by action and not by taking physical possession (Torkington v Magee [1902] 2 KB 427 at 430 per Channell J).
Snell gave examples: debts; bill of exchange (do they still exist?); policy of insurance; sweepstake ticket; share in a company; a legacy (referred to as an equitable chose); surplus proceeds of sale in the hands of a mortgagee; a legatee’s rights in an unadministered estate or a right to relief against forfeiture of a lease for non-payment of rent.
Would it be stretching things too far to argue that a “contract for a school place” was a “chose in action”?
I suppose this case is before a DJ(MC) and the outcome will be of great interest. It looks like the defence are seeking to avoid committal of the case to the Crown Court.
Head of Legal – come to think of it, do parents of children at schools run by local authorities have a contract with anyone? I think that they do in relation to independent schools.
It seems a bit artificial to call it a chose in action to me, Peter. There is no contract, is there? Where’s the consideration? My feeling is any attempt to shoehorn this into s2 does violence to its wording. But we’ll see what the judge thinks on the 8 July!
I’m sympathetic to James’s and Submariner’s view; I’ll post again after the hearing.
this is a ridiculous stretch of the fraud act. given the (probably quite justified) cries that something must be done (you just know that phrase heralds a cock-up) someone has grabbed the nearest tool and is currently using a screwdriver to attempt to hammer a carrot into blancmange. the only result will be a mess.
abuse of process.
no case to answer.
not ghosh dishonest. take yer pick.
i agree there is no legally enforceable contract for education between a parent (a child?) and an education authority. void for uncertainty, doubt over consideration … that's just 4 seconds thought.
the important point for me is for the law and legal system to be clear on its own limits. when it gets into areas that are not properly its concern or simply unable to be regulated by the courts, then it begins to erode respect for the law and with it the rule of law. not saying this will bring down the rule of law on its own, but it may just wash away a little of the mortar that holds it together.
must stop now – i have to pop out for some more far-fetched metaphors.
The council's arguments are likely to be a joy for connoisseurs of the tortuous. I wonder if they will end up impaling themselves politically on the argument that a place at one of their schools places has a greater intrinsic or financial value than a place at another of their schools? The kid has a right to a place at one of the council's schools, so the council cannot argue that it has been deprived of anything unless it considers one education to be more valuable than another, I would have thought.
I have to say, I don’t like the new fraud act. It comes perilously close to criminalising lying and if this judgement goes the wrong way who knows where it will end: lying to gain a reputation? Lying to get other’s respect? Looking at the way it’s worded, you only need to be shown to make a gain. There need be no loss to any person and as such this becomes a victimless crime. And why is this not being used to lock up people that work in advertising? Making a representation you know to be untrue. Check. With the intention of making a gain. Check. It’s drawn so broadly that the choice of where to charge potentially becomes oppressive. Let’s hope it is as limited as Mr Hargreaves suggests.
Should lying be criminal? It’s immoral certainly but the law and morality are only mixed by the unwise. You make a moral argument rather than a legal argument as to why Mrs Patel should be charged. An equally moral argument would be that this woman is doing her best to secure the best possible education for her child. Shouldn’t this outweigh, morally, telling a few fibs to some faceless bureaucrats?
I think that this new act was drawn up in response to a few failed, high-profile fraud prosecutions. It’s typical that badly defined powers are abused by the authorities and so, far from using the powers to go after those who commit massive financial crime, it is instead used to pursue people trying to negotiate the absurd school-place selection scheme.
It is also clear that if this case goes the wrong way a very large number of MPs will have to be done over on far stronger self-admitted grounds. The tremendously readable Woman on a Raft has a good piece on this angle over at Another Place, and if a link may be permitted by the grace of Head of Legal, it is here:
http://www.the-daily-politics.com/2009/06/all-schools-in-harrow-are-rubbish.html
This case is absolutely disgusting, what on earth is our country coming to? Why did our stupid government give all the malicious, petty council bureaucrats outrageous snooping powers and ridiculous, faschist prosecution laws. So what if she lied to get her son into a good school? If government MPs spent less time defrauding tax payers and more time ensuring all schools were good, they wouldn't have to waste more tax payers money with this kind of daft investigation and prosecution.
Well, having finally looked up what the 2006 Fraud Act actually says, rather than what they wanted it to say, Hackney has sheepishly dropped the charges. They are now madly spinning this as "she got off on a technicality – a loophole in the law", which as far as I can see translates to "what we claim she did was perfectly legal but we think we should be able to decide the law rather than parliament". It should perhaps be remembered that Mrinal Patel has never been established as misleading them at all – she maintains that she told the council the truth, and the council has not offered any evidence to contradict that. In such circumstances the council ought to have the good grace to wind their necks in.
It appears that the case has been dropped – 3rd July 2009. Just as we argued above: a non-starter legally.
I am just reading this discussion, about 2 years too late, because it is particularly relevant to a mooting problem I will be doing this week.
I am wondering if you wise people know of any new developments around the area of Fraud on school applications. Particularly I am wondering if I can argue that a place at an independent school (as in my mooting problem) could constitute ‘property’ outlined in S.5 of the Fraud Act 2006?
Also, another aspect of where the fraudulent parent will ‘gain’ in relation to his child’s education raised by the mooting problem is whether investment in a prestigious school with the intention of your child joining your ‘family firm’ could constitute a gain in money (as an investment…).
This is difficult and I wish I was the for the appellant as I really don’t think Fraud would realistically, like with Mrs. Patel, stick, but c’est la vie. If any of you are still around, I would appreciate some discussion, it’s an interesting topic if nothing else.
Cheers,
Lucy