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Passenger Locator Forms and fraud – some jurisdictional issues

Passenger Locator Forms and fraud – some jurisdictional issues

With due apologies for parochialism, we will concentrate in this blog on the legal position in England, though it seems likely that similar issues will arise in relation to the law of Wales.

Traditionally, at common law, nothing done outside England and Wales could constitute an offence. When interpreting a statute, the court will generally assume that Parliament was aware of the common law position and did not intend to change it unless the statute unambiguously says otherwise. The received view for many years was therefore that conduct which would amount to a statutory offence if it took place here would not be so if it took place abroad unless the statute expressly said so*.

Why does this potentially create difficulties for prosecuting for fraud travellers who lie to avoid the quarantine restrictions? Regulation 3(1) of the Health Protection (Coronavirus, International Travel) (England) Regulations 2020 requires travellers to inform the government of the countries they have visited upon their arrival in England. The information is to be provided by means of the Passenger Locator Form. However, if the information is provided up to 48 hours beforehand, regulation 3(6) provides that passengers be treated as if they have complied. Moreover, the government is – presumably for logistical reasons – encouraging travellers to complete the online form before they travel. Needless to say, a form completed before travel will not be completed in England.

The extended ambit of fraud

The Criminal Justice Act 1993 (‘the 1993 Act’) was passed to deal with problems arising from the growing international dimension to economic crimes. It expressly extended the ambit of various statutory offences to include conduct outside England and Wales. The offence of fraud is classified as a ‘Group A’ offence under section 1 of the Act. Section 2 of the Act provides as follows:

(1)For the purposes of this Part, “relevant event”, in relation to any Group A offence, means (subject to subsection (1A)) any act or omission or other event (including any result of one or more acts or omissions) proof of which is required for conviction of the offence.

(1A)In relation to an offence under section 1 of the Fraud Act 2006 (fraud), “relevant event” includes—

(a)if the fraud involved an intention to make a gain and the gain occurred, that occurrence;

(b)if the fraud involved an intention to cause a loss or to expose another to a risk of loss and the loss occurred, that occurrence.

(2)For the purpose of determining whether or not a particular event is a relevant event in relation to a Group A offence, any question as to where it occurred is to be disregarded.

(3)A person may be guilty of a Group A offence if any of the events which are relevant events in relation to the offence occurred in England and Wales.

Section 4 of the 1993 Act is also relevant:

(1) In relation to a Group A or Group B offence—

(a)there is an obtaining of property in England and Wales if the property is either despatched from or received at a place in England and Wales; and

(b)there is a communication in England and Wales of any information, instruction, request, demand or other matter if it is sent by any means—

(i)from a place in England and Wales to a place elsewhere; or

(ii)from a place elsewhere to a place in England and Wales.

In our previous blog, we highlighted the difficulty of identifying a pecuniary gain or loss in these cases. The difficulty persists in relation to section 2(1A) of the 1993 Act: if it can be said that the traveller who evades the quarantine charge makes a gain by keeping the money they would otherwise have had to pay, where is the gain made? It can be expected that many travellers will not bank with English banks, and it cannot sensibly be said that a person who keeps the balance in their German bank account at the same level as before has made a gain in England. It is more plausible to say that the government’s loss (in the sense of it not gaining what it might have got) is suffered in England, but that would still require the prosecution to prove that the government had suffered a loss at all.

In order to analyse where the “relevant event” occurs for the purposes of section 2(1), we need to consider the three different ways in which the offence of fraud can be committed under the Fraud Act 2006 (‘the 2006 Act’): by false representation, by failure to disclose information when under a legal duty to do so, and by abuse of position. Fraud by abuse of position has no obvious application here and can be disregarded without further ado.

The “relevant event” in the case of fraud by false representation

In the case of fraud by false representation, it seems there is only one “relevant event”, namely the making of the false representation. Where does that relevant event occur if the false information is entered on an online form by a traveller while abroad? Section 2(5) of the 2006 Act provides that a representation “may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention).” In the explanatory notes, it is said that this provision was intended to capture entering a PIN into a chip-and-pin machine**(it has been noted that this example is problematic, because arguably the only implied representation a person makes when typing a PIN is the true representation that they know the PIN, but that problem does not arise in the present context). This would tend to suggest that the false representation is made in the place where the traveller presses the keys.

At first glance, it might appear that s. 4(1)(b) of the 1993 Act assists the prosecution, but this may be illusory. Section 4(1)(b) deems a communication sent from or to England to have occurred in England. The problem here is that on a plain reading of the 2006 Act, “communication” is not an essential element of the offence and thus not a “relevant event” – the offence is complete when the representation is made***.

A similar argument was rejected on appeal in connection with the offence of blackmail in R v Pogmore. In this case, the defendant sent emails to a company in England that contained unwarranted demands with menaces. The prosecution could not prove that the emails were sent from England and Wales. The defendant argued, on the authority of Treacy v DPP [1971] AC 537, that the offence was complete when the demands were sent, regardless of whether they were received, and consequently that jurisdiction could not be established.  

The Court of Appeal rejected this argument based largely on its analysis of Treacy. In that case, Lords Reid and Morris, while disagreeing with the majority on the narrow question of whether the offence of blackmail could be complete without communication of the demand, expressed the view that the court would have jurisdiction if the demand was received in the jurisdiction. Lord Diplock, who set out a much more expansive view of territorial jurisdiction than his colleagues, said it would be sufficient to found jurisdiction if either the guilty acts were done here or the consequences were suffered here. The Court of Appeal felt able to deduce from these statements that the law prior to the enactment of the 1993 Act was that the communication of demands within the jurisdiction was sufficient to found jurisdiction for blackmail and that Parliament had not intended to reverse this.

Given that the Court of Appeal’s analysis is contingent on the law of blackmail prior to the 1993 Act, it cannot be straightforwardly applied to jurisdiction in the case of fraud, and the defendant’s argument in Pogmore could succeed.

There are two possible arguments the prosecution could attempt to circumvent this problem, though neither is free from difficulty:

  • It could be argued that the passenger’s failure to correct the misleading Passenger Locator Form on arrival in England amounts to an implied representation that the information provided in the form was true. Some support for this can be derived from the decision in DPP v Ray [1973] UKHL 3 and there is no doubt that a false representation can be implied (section 2(4) of the 2006 Act). As the Law Commission recognised at 7-25 of its report, however, it is undesirable for the artificial concept of a representation inferred from silence to form part of the criminal law.
  • It could be argued that the representation is made when it is received by the government’s server or communicated to a government official (presuming that either/both events would happen in England). The difficulty here is in equating ‘representation’ with ‘communication’.

Fraud by failing to disclose information when under a legal duty to do so

The better solution for prosecutors would be to discard fraud by false representation altogether and rely instead on fraud by failing to disclose information when under a legal duty to do so, as defined in section 3 of the 2006 Act. As mentioned above, the duty to disclose arises on arrival in England under regulation 3(1). The requirement for passengers to provide information can only sensibly be construed as a requirement to provide truthful information. Thus, while the passenger who completes their Passenger Locator Form truthfully before travel is to be treated, under regulation 3(6), as having discharged their duty, the same cannot be said of the passenger who has provided false information. Such a passenger remains under a duty to provide the accurate information upon their arrival in England, and a failure to do so amounts unequivocally to a guilty act committed in England.

* The Court of Appeal adopted a more expansive view of in R v Smith (Wallace Duncan) (No. 1) [1995] 11 WLUK 56 and (No. 4), relying on Lord Diplock’s speech in Treacy, but it seems doubtful that this approach could be used to plug a gap not catered for by the 1993 Act.

** It has been noted that this example is problematic, because arguably a person who types a PIN makes no representation (Arlidge and Parry on Fraud, 6th ed, 4-071 – 4-079), but that problem does not arise in the present context.

*** Arlidge and Parry argue (4-080 – 4-082) that the old deception offences required proof that the false representation came to the attention of the representee, and that is doubtful that Parliament intended to extend the offence to cover uncommunicated representations. In this specific context, however, the ambit of the offence is extended if communication is treated as an element of the offence.

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