An Employee's Theft of his Employer's Trade Secrets: Fraud by Abuse of Position

摘要

Employees frequently misappropriate their employer's trade secrets, either for their own benefit or for the benefit of a new employer. The previous employer's remedies are an injunction, damages, disclosure and delivery up. But the criminal law has had a very limited role to play in these common scenarios, mainly because information, however valuable, is not regarded as property for the purposes of the Theft Act. A recently reported case—R. v Secretary of State for the Home Department Ex p. Corbiere Ltd—a judicial review decision which focused attention on whether or not the ex-employee in question should be deported, also shed some light on an alternative criminal offence which might have some role to play in this area. The offence is "fraud by abuse of position" under the Fraud Act 2007. This note considers the decision and its potential implications for employers who have had their trade secrets "stolen" by their ex-employees.