Expenses: In the Spirit of the Rules?

[mcgillianaire]

I wrote my Criminal Law exam yesterday where I answered three questions on Theft, Burglary, Robbery, Blackmail and Fraud. Then I got home and discovered this topical article written by Jonathan Fisher QC, a criminal barrister, and published in The Times:

A police investigation into the MPs expenses scandal will swiftly identify false accounting as the criminal offence most likely to have been committed by the most egregious of the SW1 claimants. The offence is committed when a person dishonestly, with a view to gain, produces a record or document that he or she knows is misleading, false or deceptive in a material particular. An expenses claim constitutes a record or document produced for an accounting purpose and, if submitted dishonestly, the maker is liable to a maximum of seven years imprisonment on conviction. A greater number of MPs ought to be worried because the offence can also be committed where a person knows his expenses claim may be misleading and likely to induce another person into believing that the claim was properly allowable. Proof that an expenses claim was misleading is not required. The purpose of the law is to defeat an argument that a claim was certain to mislead.

Later he goes on...

For centuries lawyers have debated whether a person who obtains a victim’s consent to suffering a loss (such as an elderly homeowner massively overcharged by a rogue decorator) is liable for theft where his conduct cannot be impugned in civil law. The present drift of the law suggests that it is no defence for a person to contend he is not guilty simply because he acted within the letter but outside the spirit of the law. As Lord Steyn explained in a House of Lords decision, the purposes of the civil law and the criminal law are different and sometimes there is disharmony. When this occurs, it is wrong to assume that criminal and not civil law is defective. The test of dishonesty applied by a jury in a criminal trial is two-fold. First, the jury asks whether the action was dishonest according to the ordinary standards of reasonable and honest people. If the answer is “yes”, the jury asks whether the defendant realised that reasonable and honest people would regard what he did as dishonest. If a jury concludes that an MP had not realised reasonable and honest people would regard his action as dishonest, the verdict would stand as eloquent testimony of the remoteness of our lawmakers from the perception of the vast majority of law-abiding people.

That test of dishonesty is known as The Ghosh Test and is the test used in just about every question I answered yesterday. And the bit at the beginning about the criminal offence of false accounting is from section 17 of the Theft Act 1968, which is also the source of the offences of Theft (sections 1-6), Robbery (section 8), Burglary (sections 9 & 10) and Blackmail (section 21).

I'd love to see an MP 'brought to justice' under the provisions of this Act but I doubt if it would ever happen. Could it? Should it?