More than a million people a year take public exams in the UK. Now, alongside invigilators patrolling in the exam halls will be the reassuring presence of the criminal law.

Jerome Drean, 34, and Elnar Askerov, 23, were recently sentenced to nine months imprisonment, suspended for two years, after Drean took £20,000 for posing as Askerov in exams. Both men pleaded guilty to “conspiracy to defraud” the University of York. Drean, a very clever banker, sat economics exams in Askerov's place using a false ID card bearing his own photo but Askerov's name. They were caught when a lecturer in the hall noticed that someone was preparing to sit the exam who wasn’t on the course and that Askerov wasn’t present.

This type of fraud is thought to be more widely practised than has yet been exposed but the number of prosecutions is likely to rise over coming years. Sentencing the men, Judge Stephen Ashurst said that such fraud “erodes the confidence the public can have in academic degrees”. He said their conduct was “deeply offensive to the thousands of diligent students who do work hard’’.

The crime under which the men were prosecuted, conspiracy to defraud, is a serious one. It carries up to a ten-year prison sentence. This common law offence covers situations in which people dishonestly agree to deprive a person of something that is his, or to which he might be entitled. It also, though, covers events whereby people conspire, as in the York case, to bring about a situation that would, or might, “deceive a public official performing public duties to act contrary to such a duty”. So, there can be a conspiracy to defraud even where there’s no risk of causing economic loss to anyone or of prejudicing someone’s economic interests. York University didn’t suffer a direct economic loss from the fraud.

The term “public official” can be given a wide interpretation and includes university officials and many examining bodies. The charge has been used in various circumstances. In 1990, for example, in R v Moses and Ansbo, the defendants were convicted of conspiracy to defraud after facilitating work permit applications by immigrants barred from working. The defendants were officials who ignored stamps on the applicants’ passports indicating they weren’t entitled to work, and processed the forms, thereby tricking other officials into contravening their duty by granting unlawful work permits.

The law has judged irregularities in exams in other settings. One unsuccessful prosecution was in the 1976 case of Oxford v Moss. Paul Moss was a civil engineering student at Liverpool University. In May 1976 he was accused of stealing "intangible property", namely confidential information from a proof of the civil engineering exam paper due to be sat the following month. After he’d read the questions he returned the paper to the place from which he’d swiped it. It was agreed by both sides that he didn’t intend to steal the paper itself but merely to look at the questions. The court held that, for the purposes of the Theft Act 1968, confidential information doesn’t amount to "property" and cannot be stolen. Mr Moss was condemned by the court as a cheat but acquitted of the theft charge.

Another case avoided the criminal law. Francis Foecke argued with Bristol University for 15 years after he was accused of cheating in his final exams for computer sciences and mathematics in 1986. He’d been awarded first-class results in all 13 papers. A committee set up by the university ruled after a two-day hearing that he had cheated in parts of answers to three questions. His solutions were exactly the same as some of the model answers prepared by the examiners, even including replication of some of their errors.

Apart from cheating allegations being made around the time of an incident, there’s also a chance that the law will be used long after such events. If someone dishonestly says they have qualifications that they haven’t got, and they get a job because of that representation, that is a criminal offence. It even applies to some self-employment. In 1990 Robert Callender was convicted at Maidstone Crown Court of having been engaged by businessmen after dishonestly representing himself as a fully qualified accountant. It used to be called “gaining a pecuniary advantage by deception” but is now straight fraud prosecuted under the Fraud Act 2006.

If the law does become more involved in this area, it could well have a heavy workload. In 1992 a paper published in the Journal of Economic Education indicated that of 476 economics students surveyed by American academics, more than 80 per cent of respondents said that they had observed another student cheating. That, though, might just apply to economists. Lawyers often have other plans about how to gain a pecuniary advantage.

Professor Gary Slapper is Director of the Centre for Law at The Open University

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