R v Skeene and Conspiracy to Defraud – Clarity on “What”, but not “Why”

“Whilst no one would demur from the proposition that the offence is ‘exceptionally broad,’ that is not the same thing as an offence without boundaries. It is not literally a catch-all.”

So said Hickinbottom J in his judgment in R v Evans (Eric) [2014] 1 W.L.R. 2817, concerning the scope of the common law offence of conspiracy to defraud. However the relevance to this article is not the substance of the learned judge’s conclusion, but that he needed to state it at all.

There is no other criminal offence in the law of England and Wales where the balance between the generality of what the prosecution must prove, and the potential consequences on conviction is so disproportionate. Whilst statutory offences such as careless driving or basic public order offences might be drafted to capture an array of different behaviours, and with no need to prove any particular consequence, these are only punishable by fines. By contrast, conspiracy to defraud carries a maximum sentence of 10 years and non-custodial sentences on conviction are the exception rather than the rule.

On a first reading for those unfamiliar with its history, it may seem extraordinary that Hickinbottom J considered it necessary to confirm that conspiracy to defraud is not in fact an ‘offence without boundaries.’ However, a review of the case law confirms that, in some instances, the offence has been (wrongly) regarded as carte blanche to treat alleged dishonesty as an offence prosecutable in itself, with no need to address the related conduct- or in other words, whether or how that dishonesty was put into action.

The overreach of this approach became particularly stark following the passing of the Fraud Act 2006. This specifies both a common mens rea (dishonesty, with intent to make a gain for oneself or another, or cause loss to another or expose another to a risk of loss) and the specific actus reus of the three distinct fraud offences set out at sections 2 to 4.

Whilst these offences under the Fraud Act 2006 can be committed in any number of ways, they could not fairly be described as ‘without boundaries’. That being the case, why is an adjacent (and indeed often overlapping) common law offence so apparently illconfined as to require the judicial clarification that it does, in fact, have limitation?

The answer lies in the fact that conspiracy to defraud was expressly preserved by the Fraud Act 2006, despite the preceding Law Commission report recommending its abolition. The explanation at the time – as set out in the corresponding Attorney General’s Guidance last revised in 2012 but still applicable today¹ – was that its preservation was considered to be in the ‘interests of justice’ to facilitate prosecutions where the ‘complete picture’ of an alleged conspiracy could not be properly presented by a series of substantive charges or statutory conspiracies. Anticipating the risk of its overuse, the Guidance recommended that prosecutors should always consider whether the relevant conduct could properly be addressed on a statutory basis. If not, the rationale for charging the common law offence must be recorded and approved by a supervising fraud specialist.

The Guidance also indicated that a review of such cases would subsequently be undertaken, presumably with a view to considering whether it should be abolished after all. However, in practice, no such review has materialised and there seems to have been little decline in prosecutorial appetite for conspiracy to defraud, particularly in large, complex, multi-jurisdictional or otherwise novel cases.

In that context, it should be no surprise that, almost 20 years after the implementation of legislation intended to supersede it, the proper application of conspiracy to defraud continues to be a source of argument.

One recent example is the Court of Appeal judgment in R v Skeene & Anor [2025] EWCA Crim 17, which is worth examining as both a succinct history of conspiracy to defraud in practice, and as confirmation of the matters which must be proved by the prosecution.

The two defendants in Skeene were convicted in May 2022 of three counts of conspiracy to defraud and one count of misconduct in the course of winding up. Each was sentenced to a total of 11 years of imprisonment. The three conspiracy counts related to three investment frauds involving Brazilian teak plantations in which £37 million was obtained from approximately 2,000 members of the public.

Having been refused permission to appeal by a single judge, the defendants renewed their applications against conviction on various grounds. The first and most substantive of these grounds was that:

(i) The indictment was defective with respect to the three fraud counts, on the basis that it failed to adequately define the conspiracy with which the defendants were charged, and
(ii) As a result, the judge’s summing up and directions had failed to properly set out the necessary elements of the offence.

Regarding issue (i), the relevant indictments all followed the same format:

[The defendants], during [relevant time period], conspired to defraud investors in [relevant investment project] by dishonestly:
1. …
2. ….

The indictment then set out a numbered list of acts, ranging from the general ‘Devising and carrying on a scheme that would not generate returns for investors,’ to specified misrepresentations and misappropriations. It was implicit in the structure that each of these acts was alleged to have been carried out ‘dishonestly’ and were put on an ‘and/ or’ basis. In other words, the prosecution did not allege that either or both defendants had carried out or been involved with all of the acts (whether dishonestly or at all). Nor was any particular act averred to have definitely occurred – or if it had occurred, been committed dishonestly.

The defendants submitted that the indictment failed to adequately define the conspiracy with which they were charged. In particular, the list of acts was ‘a menu of options laid out in the particulars, some of which might properly have been regarded as the substance of the agreement, most of which appeared to be simply acts done, at some stage and by someone, in pursuance of some agreement which had already been made’. As such, the defendants submitted that it did not comply with Criminal Procedure Rule 10.2(1), and specifically sub-paragraph (2)(b), which requires an indictment to contain ‘such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant’.

As a result, not only was the indictment itself defective in failing to make clear the case that the defendants were required to meet, but the trial judge’s summingup and route to verdict were also flawed. The defence asserted that the prosecution’s burden went beyond proving the existence of an agreement between the defendants to defraud (i.e. dishonestly to prejudice another person’s economic interests, as per the judgment of Viscount Dilhorne in Scott v Metropolitan Police Commissioner [1975] AC 819). Instead, it was incumbent on the prosecution to prove that one or more of the numbered acts had actually occurred pursuant to the conspiracy. As such, the jury ought to have been directed (akin to a Brown direction²) that they must conclude, not only that there had been an agreement to defraud, but they must agree that one or more of the numbered acts had occurred in pursuit of that agreement -and their agreement must be in respect of the same act(s).

Unfortunately for the defendants, the Court of Appeal gave short shrift to those submissions. In tracing the history of conspiracy to defraud (and in particular, the form of indictments) from Scott, via R v Landy [1981] 1WLR 355, R v Hancock [1996] 2 Cr App R. 554 and R v K [2005] 1 Cr App R 25, the court concluded that the essential ingredients of a conspiracy to defraud are those set out in Scott. This is an agreement to dishonestly prejudice another’s economic interests. If those elements are made out the offence is complete. In support of their position, the defendants had little law to rely on, beyond some dicta in R v K expressing the need for clarity in drafting indictments and the general statement of Hickinbottom J in Evans, set out earlier.

In exploring this history, the Court of Appeal in Skeene distinguished the position in Brown, which concerned a statutory offence for which a particular element (the making of a false or misleading statement) was essential. Consequently, it was necessary for the jury to be unanimous on the conduct forming that element of the offence. By contrast, a conspiracy to defraud does not require the prosecution to prove that any particular acts flowed from the agreement. As succinctly described by Thomas LJ in R v K, ‘provided there is that certainty in the agreement, it matters not how the participants individually intended to go about or actually went about defrauding the intended victims of their money.’

In the case of Skeene, the numbered acts were included on the indictment, not because they were an essential element of the offence, but because they were provided as an indication of the matters on which the prosecution intended to rely in seeking to prove the existence of a dishonest agreement between the defendants.

As well as informing the defendants of the case they had to meet, they acted as a safeguard to prevent the prosecution shifting its position without leave of the court. Therefore, the indictment as it was drafted did comply with CrimPR 10.2(1), in that it made clear to the defendants how the prosecution intended to prove the necessary elements of the offence. Similarly, the judge’s summing up and directions properly addressed the issues on which the jury were required to agree.

With reference to the original trial, it was noted that the defendants had opposed the introduction of additional counts of forgery, instead asserting that these could properly be included as one of
the numbered counts in support of the substantive conspiracy charges. This indicated that the defendants knew and accepted that none of the numbered particulars were, in themselves, essential
elements of the offence that had to be proved by the prosecution and agreed on by the jury.

The judgment in Skeene should be praised for setting out clearly, and without demur, what the law is concerning conspiracy to defraud. However, this still leaves the debate unresolved as to what the law should be. A lay observer is likely to find it incredible that such a serious offence remains available to prosecutors nearly 20 years after legislation codifying offences intended to supersede it. We can only guess the reaction of juries if they learned that, although the prosecution may have put forward a vast ‘menu’ of particulars alleged to have been the result or implementation of the conspiracy, they do not need to be convinced of any of them – either individually or as a group.

In direct contrast to a case requiring a Brown direction, it seems very likely, if not inevitable, that each of the 12 jurors would come to a different conclusion on the defendant’s conduct, and yet they could properly reach a guilty verdict regardless. It is not so much a case of the prosecution having their cake and eating it, but rather being permitted as many cakes as necessary to suit their case.

Skeene is no exception to the many concerns raised about the continuing life of conspiracy to defraud. The ongoing LIBOR/EURIBOR rigging appeals heard by the Supreme Court last month are a good example. As indicated by the Attorney General’s guidance, the retention of the common law offence was intended as a safety net where statutory offences were inadequate. But in practice, it appears to often be treated as a tool to make difficult cases seem straightforward. As also clearly indicated by the guidance, the expectation – in line with the Law Commission’s recommendation – was that conspiracy to defraud would be likely to be phased out as the embedded modern statutory regime.

Whilst the issue may have slipped off the political radar in the intervening years, it remains a live issue for criminal courts – and a compelling example of ‘better late than never.’

Notes:
¹ https://www.gov.uk/guidance/use-of-thecommon-law-offence-ofconspiracy-to-defraud–6

² As per R v Brown (Kevin) (1984) 79 Cr App R 115, in which a jury is directed that, where an indictment alleges various matters in respect of an element of the offence – ach of which was sufficient in itself to satisfy that element – it is sufficient for the jury to convict on the basis of only one such matter, provided that they are in agreement that the same matter is proven.

This article was originally published in The Knowledge – April 2025 and Fraud Intelligence 28 April 2025