“Any article” in section 6(1) of the Fraud Act 2006 meant any article the defendant had with him for the purpose or intention of using in the course of or in connection with any fraud and use necessarily related to use in the future and not articles which had been used in the past.

The Court of Appeal, Criminal Division, so held when allowing an appeal by the defendant, Gytis Sakalauskas, against his conviction on 12 September 2013 in the Crown Court at Hull (Judge Mettyear), for possession of an article for use in fraud contrary to section 6(1) of the Fraud Act 2006 (count 3).

Section 6(1) provides: “A person is guilty of an offence if he has in his possession or under his control any article for use in the course of or in connection with any fraud.”

MITTING J, giving the judgment of the court, granted leave to appeal and said that the defendant had exploited the victim’s overdraft facility and used his debit card to obtain large quantities of fuel from filling stations, sufficient to fill a substantial fuel tank. The defendant put fuel in a 25 litre can on 30 October 2012, which police officers found in the boot of the car and in the defendant’s possession on that date. He contended that the judge should have directed the jury that he could be only convicted of count 3, if they were sure that he intended to use the can for fraud on 30 October 2012 or after and not on two earlier dates. The wording of section 6(1) of the Fraud Act 2006 was almost identical to that of section 25(1) of the Theft Act 1968, as amended by the Fraud Act 2006, sections 14(1), 15(1), Schedule 1, paragraph 8(a), which said “A person shall be guilty of an offence if, when not at his place of abode, he has with him any article for use in the course of or in connection with any burglary or theft,” apart from the additional requirement of a place of abode and the nature of the crime. The observations of the Court of Appeal in R v Ellames [1974] 1 WLR 1391 about section 25(1) of the 1968 Act, that “any article” meant “has with him for the purpose or with the intention that they will be used” and that intention to use necessarily related to use in the future, applied with equal force to the section 6 offence. If that were not the case, it was easy to see how an innocent person who knew an article had been used by someone else who had committed an offence, would be guilty under section 6 if he had it in his possession. That had not been Parliament’s intention under section 25 of the 1968 Act. The aim of section 6 of the 2006 Act was to prevent the use of articles intended for use then or in future, not those which had been used in the past. The judge’s directions to the jury made clear or left it open for them to conclude that if the petrol can had been admitted into the defendant’s possession earlier and used on previous occasions, he was guilty of the offence. This had been a misdirection and the conviction was unsafe. The appeal was allowed.