The context and development of mediumship

There is evidence to suggest that in recent years there has been an increased growth of interest in, and fascination for, areas of the paranormal. A Gallup survey in 2005 found that around 75 per cent of Americans have at least one paranormal belief, with extrasensory perception being the most popular paranormal activity,Footnote ² and O'Keeffe and Wiseman state that recent opinion polls have shown that almost 30 per cent of Americans now believe in the existence of genuine mediumistic abilities (Reference O'keeffe and Wiseman2005, p. 166). A number of theoretical frameworks have been proposed to explain this growth, including that these beliefs help to ‘compensate against social marginality, form part of a wider esoteric worldview or are the consequence of various cognitive defects’ (Rogers, Qualter, Phelps and Gardner, Reference Rogers, Qualter, Phelps and Gardner2006, p. 1090; see also Beischel, Reference Beischel2007; Irwin, Reference Irwin1993).

In conjunction with, and as a corollary of, this increased interest and belief, there has been an explosion of commercial paranormal activity in the United Kingdom, perhaps most notably in the proliferation of television programmes focused upon the paranormal. This includes examples such as Most Haunted, Sixth Sense with Colin Fry, Psychic Detectives, Psychic Private Eyes, Psychic School, Street Psychic, Antiques Ghost Show and Crossing Over with John Edward. There is even a television channel, The Paranormal Channel, which is devoted to these types of television programmes (see generally, Hill, Reference Hill2010). These television programmes have been contentious, and the growth in this area has led to interest being taken in how the broadcast of such phenomena might need to be controlled or regulated. The Office of Communications (OFCOM), for example, commissioned a paper ‘Participation TV: How Should it be Regulated’, illustrating the importance and concern placed on the issue.Footnote ³ There has also been recent disquiet expressed about the rise in scams involving the paranormal. Research conducted by the Office of Fair Trading (OFT) in 2006 estimates that clairvoyant and psychic mailing scams, where people pay for predictions for their future, costs the UK public an estimated £40 million a year.Footnote ⁴ These areas demonstrate the increasing concern there is around paranormal activity, but this concern is not new, hence the attempts that have been made to legally regulate it.

As noted above, mediumship can be seen as part of broader paranormal activity, and it also forms the basis of the religion of spiritualism. A medium is defined by the Oxford English Dictionary (OED) as ‘a person believed to be in contact with the spirits of the dead and to communicate between the living and the dead’.Footnote ⁵ Lee notes that:

In essence, the concept is that a medium is the vehicle via which the spirit of someone who has passed away can communicate with the living. Contemporary activities include large and small group demonstrations, individual one-to-one readings and the use of media such as premium rate telephone lines. Mediumistic activity may have a number of possible uses. Herman argues, for example, that whilst spiritualism is a social practice that operates on the boundary between religion and science, and further may act as a mechanism to confront individual anomie, it also has important links to entertainment. As Herman notes, ‘like Barnum's show, spiritualism was spectacle but it was not any sort of spectacle. It blended the sacred and the profane in a religion of entertainment that anticipated the entertainment offered via electronic media in the twentieth century’ (Reference Herman2006, p. 419).

This sums up the main issue in this area, which is the tension between religion (spiritualism) and science on the one hand, and what may be a form of entertainment on the other. This creates further difficulties in terms of regulation.Footnote ⁶ Herman's point seems especially valid when we consider the uses of mediumistic practice as forms of entertainment in the twenty-first century. Claims of mediumship have, unsurprisingly, been subject to sustained and rigorous critique.Footnote ⁷ There have been numerous attempts to verify the existence of genuine mediumship, with the research showing conflicting results. As O'Keeffe and Wiseman note:

They further argue that such work failed to take into account other possible strategies, including clever guesswork and the applicability of vague and general statements that can be interpreted in many ways, generally known as ‘cold reading’ (Schouten, Reference Schouten1994; Rowland, Reference Rowland2001). They state that several researchers have attempted to devise procedures that eliminate the potential for such stratagems, and then used these to examine some of the best-known mediums of the day. The results of those studies were mixed with ‘some work finding evidence in favour of genuine paranormal abilities and other research supporting the null hypothesis’ (O'Keeffe and Wiseman, Reference O'keeffe and Wiseman2005). They conducted their own study using five mediums recruited from the Spiritualists' National Union (SNU), but were unable to find any ‘evidence to support the notion that the professional mediums involved in the research were, under controlled conditions, able to demonstrate paranormal or mediumistic ability’ (p. 175).

The SNU does potentially provide one method of establishing authenticity, which is to see whether the medium is a member of a body that purports to promote and supports spiritualism, including affiliating mediums, healers and others.Footnote ⁹ The SNU was established in 1901 and has full charitable status, and has an accreditation process in order to join, which is potentially evidence of genuine mediumship for the purposes of the law.Footnote ¹⁰ The membership of the SNU is divided into Class A and Class B members. The Class A members are the 350 affiliated churches and centres, and the subscribing members Class B. Those joining the SNU have to accept the seven principles, which are: the Fatherhood of God; the Brotherhood of Man; the Communion of Spirits and the Ministry of Angels; the Continuous Existence of the Human Soul; Personal Responsibility; Compensation and retribution hereafter for all the good and evil deeds done on earth; Eternal progress open to every human soul. Members have the opportunity of working towards an award of a Certificate of Recognition (CSNU), a Diploma (DSNU), a Teachers Diploma (TSNU) and a Fellowship (FSNU). There is then the possibility of being appointed an ‘officiant’, which is granted to those who are considered capable of conducting services such as marriages, funerals and namings. The ministership of the SNU is accorded to those who have been selected as worthy to represent spiritualism by their bearing and example as ministers of religion.

However, despite this accreditation process, the above research shows that, at best, the psychological evidence as to the existence of mediumship is conflicting. By using the psychological tests that have supposedly proven that genuine mediumship exists, or the verification provided by the SNU, it could be argued that there is indeed, evidence of genuine mediumship. The question of course arises as to how we ascertain genuine mediumship for the purposes of the law. Writing of the United States' position in the early twentieth century, particularly around the area of the amending or altering of wills in the light of mediumistic intervention, Lee notes:

Lee's point is that some mediums are undoubtedly sincere, and that cases that are litigated are the exception rather than the rule. We do, however, need to consider how we might measure, or authenticate, legitimate practice, and this has proved to be a difficult issue for the purposes of the criminal law.

The criminal regulation of mediumship

Historically, many of the skills attributed to mediums would have been considered witchcraft (Lee, Reference Lee1922; Macfarlane, Reference Macfarlane1970; Murdie, Reference Murdie2005; Clements and Morris, Reference Clements and Morris1996). Witchcraft was first legally defined in 1541, and was originally an ecclesiastical offence. A series of statutes criminalising such activity were subsequently enacted.Footnote ¹¹ The Witchcraft Act 1735, for example, provided for prosecutions for those who pretended to have such powers, although prosecutions were rare (Davies, Reference Davies1999). That said, Davies notes a number of examples where the Act was invoked, right up to the twentieth century, although the courts were reticent to utilise or recognise the Act. When discussing the application of the Act, Davies notes that ‘the impression gained from such accounts is that there was a certain legal embarrassment about dealing with the Witchcraft Act’ (p. 61).

Whilst the Witchcraft Act 1735 was sparsely used and later repealed by the Fraudulent Mediums Act 1951, it is important to appreciate the interrelationship and overlap between this and the Vagrancy Act 1824. The Vagrancy Act 1824 had as its focus travellers and homeless people, a different folk devil, yet this also captured those professing to read palms, tell fortunes or similar deceptive practices, so ‘reputable’, or at least outwardly respectable, spiritualists were caught by this statute. As Lee notes:

So these vagrancy provisions provided a remedy against fortune-tellers, and, importantly, potentially captured more middle-class practitioners of areas such as astrology. This led to a campaign to amend Section 4 of the Act, which categorised ‘every person pretending or professing to tell fortunes, or using any subtle craft, means, or device, by palmistry or otherwise, to deceive and impose on any of his Majesty's subjects’ as an idle and disorderly person’. Interestingly, these middle-class professionals did not want to abolish Section 4, but merely to change it in their favour, as they disliked being categorised in a group with ‘common fortune tellers and pseudo-astrologers, who they felt tarnished their attempts to establish the area as a real science’ (Davies, Reference Davies1999, p. 62). In fact, the real objections to the Vagrancy Act came not from astrologers, but from the growing spiritualist movement.

In the twentieth century, the religion of spiritualism became both more popular and legitimised. The formation of the SNU, discussed above, lies testament to this and being granted charitable status illustrated its legitimacy. Those who practised spiritualism as a religion were unhappy about the association with those also caught by the legislation, and campaigned against both the Witchcraft Act and the Vagrancy Act. The upshot was that proceedings were now only to be brought against mediums under the Vagrancy Act where there was some evidence of fraud and a public complaint had been made. The Home Secretary later advised that no police prosecution could be made without the consent of the Director of Public Prosecutions (DPP) (Clements and Morris, Reference Clements and Morris1996, p. 1575).

As noted above, the Witchcraft Act 1735 was repealed in 1951, and replaced by the Fraudulent Mediums Act. This also repealed Section 4 of the Vagrancy Act as far as it related to mediums and fortune-tellers. The Vagrancy Act is still in force today and has been used to deal with homeless people sleeping rough, especially in Greater London, but its use for this purpose has been heavily criticised.Footnote ¹² The rationale for the FMA, and for repealing the then current laws capturing fraudulent mediums, was that the penalties under the Witchcraft Act 1735 and Vagrancy Act 1824 were deemed to be insufficient, and the FMA was to increase penalties significantly. However, at the same time it was felt that the two Acts were too harsh for what might be termed genuine mediums, that is to say those who practise this as part of their religion.

The FMA was introduced as a Private Members Bill, although Lord Dowding made clear when introducing the Bill into the House of Lords for the second reading, that it had the full support of the Home Office.Footnote ¹³ In introducing the Bill, Lord Dowding made it clear that the law was being reformed ‘as it is applied to spiritualist mediums’, thereby implying that the aim of the Act was to protect those who claimed to be genuine spiritualist mediums. This was to be done by increasing the penalties ‘adequate to deter the practice of fraudulent mediumship’.Footnote ¹⁴ The difficulty for those drafting the legislation was to construct it in such a way that it dealt with fraudulent activities, but would not be perceived as an attack on those who genuinely engaged in spiritualism as a religion. This can be illustrated by the speech of Lord Shepherd, who set out the view of the government:

It was clear from the debates that the spiritualist movement had achieved a major impact on the law being reformed, which is illustrated by Lord Dowding's comments that:

The comments by both Lord Shepherd and Lord Dowding appear to highlight that the aim of the legislation was to protect both the spiritualist medium and also the public from those who were fraudulent, but it could be argued that the former was afforded far better protection by the legislation than the latter. The offence was set out in s.1(1) of the Act which stated that:

There were three qualifications to the offence. Under the FMA the act had to be for reward (Section 2), consent of the DPP had to be sought (Section 4) and, crucially, the third qualification was that the offence would not apply to any act that was performed solely for the purposes of entertainment (Section 5). In terms of the Act, if its aim was to protect the genuine medium and punish those who were fraudulent, the difficulty was how the law was supposed to do this in terms of evidence. For example, someone might genuinely believe in their own mediumistic abilities (thereby negating the intention to deceive), but this does not necessarily mean that objective evidence supports this belief. For the claim of genuine mediumship, the question for the Court would be what evidence would be accepted as indicating that the medium was genuine which would have to be countered by the prosecution when proving, beyond all reasonable doubt, that the medium was a fraud. Members of the SNU, for example, would presumably be considered to be genuine for the purposes of the offence. This would very likely apply to those who had been through the award and appointment procedures outlined in the sections above, which the law may deem as evidence of genuine mediumship. But as the studies have shown, there is contradictory evidence as to whether genuine mediumship exists, and even if the SNU argue that they only accept genuine mediums, not every medium is within the SNU. This makes it very difficult to prove that a ‘medium’ is acting fraudulently unless the fraud is blatantly obvious or the medium pleads guilty.

If a medium is able to call a number of recipients from previous readings to testify that they were happy with the reading, then this may also be evidence that the medium is not fraudulent. The difficulty with this may be the subjectivity of the reading, in that some may view the medium as a fraud and others may not. It is difficult to see in what circumstances the recipient would have acquired the knowledge of fraudulent activity and what that evidence would have to be in order for police involvement and for the Crown Prosecution Service (CPS) to decide to prosecute on the basis of a ‘realistic prospect of a conviction’. This is not to say that fraudulent evidence cannot ever be found, but the fact that an intention to deceive had to be proved meant that the CPS would have to show the medium knew he or she could not contact the dead when giving the reading, which would be difficult to prove if the medium was claiming he or she could.

It could be argued, therefore, that the exceptions to the offence are geared squarely towards the protection of the ‘genuine’ medium, rather than the protection of the potentially vulnerable recipient of the fraudulent medium, usually the ‘sitter’. This is an important distinction, especially in the light of the new regulations covering such activity. The first exception is the requirement in Section 2 for the person to be acting fraudulently for a ‘reward’, which is money or other valuable thing given. This implies that there is only an offence committed where the medium is acting fraudulently for a ‘reward’, however that is defined. If a medium is a spiritualist, and acting in that capacity to practise their religion, then the assumption is perhaps that there is less motivation for them to be doing that for money, other than perhaps as part of a salary, than someone pretending to be a medium for financial gain outside religious activities. But the requirement of a reward seems to imply that there is no criminality on the part of the medium unless some kind of valuable commodity has exchanged hands, which does not really protect those who are vulnerable who have not provided a ‘reward’ but who have received a potentially distressing fraudulent reading. This would appear to be contradictory to one of the aims of the legislation, to prevent harm to the bereaved, which is not necessarily always purely financially related.

The second exception, which also potentially adds to the ineffectiveness of the offence, is Section 5. This states that Section 1 would not apply to ‘anything done solely for the purposes of entertainment’. It is sometimes difficult to define under what circumstances a sitting with a medium would be deemed ‘entertainment’ and which ones would not. This provision makes it very easy for the ‘fraudulent’ medium to issue a disclaimer and declare that what they were doing was for entertainment purposes only, and was not to be considered real for the purposes of contacting the dead. It would appear that if the medium is declaring that what they are doing is ‘entertainment’ they are, by implication, accepting what they are doing is not ‘real’ because if it was, they would not need the protection that Section 5 offered, as they would be genuine. Therefore, whilst the aim of the Act was supposedly to protect the genuine medium and punish the fraudulent medium, the inclusion of Section 5 appeared to do the opposite and ensured that the fraudulent medium had a ‘get-out’ clause. Just as it would appear unacceptable to exploit the bereaved and vulnerable for money, it is just as unacceptable to exploit them for the purposes of ‘entertainment’, which the law seemed to ignore.

The disclaimer regarding entertainment was not as straightforward as it seemed. In order to invoke the defence in Section 5, it is not clear from whose perspective the ‘entertainment’ element would have to apply. For example, did this refer to the context in which the reading was given? It would appear that if a reading was given during a spiritualist sermon in a church, this would not be considered ‘entertainment’ as it would be viewed as a religious experience and the minister would be unlikely to be reported as a fraud by those attending the service. This presumably means that the entertainment disclaimer would not apply, as a sermon given in a religious setting would not want to be declared ‘entertainment’ by a spiritualist as this would detract somewhat from the religious experience itself. The requirement of an ‘entertainment’ declaration in a church would have led to protests from spiritualist ministers and gone against the spirit of the legislation discussed above. But if the disclaimer was not provided, this would have the potential for the offence to apply. Therefore, the legislation could produce the result that spiritualist mediums would need to declare their sermons as ‘entertainment’ to be sure of not being caught by the legislation, something they might be reluctant to do. So whilst the FMA did appear to protect the genuine spiritualist medium, as intended, by providing the disclaimer, this would not be without its problems for those who were practising their religion.

If the reading was given outside a religious setting, this would make the medium more vulnerable to allegations of fraud and presumably, within this setting, the medium would be more likely to issue the disclaimer. However, it is not clear whether the medium has to intend for the reading to be ‘entertaining’ or whether the recipient has to receive it and be ‘entertained’ for the offence to apply. Also, does it also depend on the setting in which the reading is given? A reading given to a large audience in a local theatre may have the capacity to ‘entertain’ some (and indeed would be considered an entertainment setting), but it is doubtful that this is the motive for attending or the aim of the medium in giving the reading. The audience may well want to believe they may make contact with the deceased and the medium will want to make them believe he/she can make that contact as he/she knows that is why they are attending; it is not clear how this ‘entertainment’ is conveyed other than by leading the recipient to believe it is true. If the audience feel they are being conned, they are less likely to view this experience as ‘entertaining’, but the fraudulent medium would know that as long as an ‘entertainment’ disclaimer was issued then he or she would be free to carry on deceptive practices.

If the disclaimer applies based on the intention of the medium, then it would be unfair if the recipient is taking the reading seriously and not viewing this as entertainment. If the recipient is viewing the reading as genuine and the medium is intending to deceive for money in the guise of ‘entertainment’, then the offence would not be affording much protection to the vulnerable recipient in those circumstances. This provides further evidence that the FMA was aimed firmly at the protection of the medium rather than the vulnerable recipient who may be desperate to make contact with the deceased.

As the above shows, the definition of what is ‘entertainment’ was not clear under the Act but the fact that the clause could be invoked in any setting and at any time made it very easy for the medium to evade liability. The Act was widely criticised. For example, Clements and Morris argue that:

This hints at the crucial problem with framing an offence in this area; the difficulty of attempting to regulate something that is potentially unknown and un-provable. This is exacerbated where there is no systematised licensing or regulatory procedure for people wanting to practise as mediums, outside schemes such as those offered by the SNU. As the debates on the Fraudulent Mediums Bill showed, the aim of the Act was to protect the genuine medium and condemn the fraudulent one. This implies that it was accepted at this time that genuine mediums existed. But the difficulty this legislation represented was how the prosecution identified a fraudulent medium from a non-fraudulent one. If the burden of proof is on the prosecution to prove beyond all reasonable doubt that the medium is acting fraudulently and intending to deceive, what tests are to be used to prove that the defendant is not communicating with the dead? In any event, the usefulness and applicability of the Act was subjected to scrutiny, and ultimately repealed.

The medium in the twenty-first century

As the preceding sections illustrate, the FMA was barely used. Undoubtedly the prosecution of those claiming to contact the dead was hardly a significant priority, especially given the evidential problems. In a written answer by the Home Secretary in 1979, it was revealed that between the years 1971–1974 and 1976–1977 there were five persons proceeded against under the Act.Footnote ¹⁷ Furthermore, between the years 1980–1995, there were only six prosecutions with five convictions. Sceptics were critical of the failure to prosecute those who were viewed as exploiting the vulnerable, and an e-petition was delivered to the Prime Minister's Office in 2007, calling for a revision of the FMA:

Reform appeared via an unlikely source, rather than by any revision of the Act. In 2001 the European Commission published a Green Paper that sought to ‘launch an extensive public consultation on the future direction of EU Consumer protection’.Footnote ¹⁹ The underlying concern was the fragmented set of regulations and enforcement within the member states, which it was felt operated as barriers to the internal market. Consumers were thus hindered from buying across national borders, therefore stifling both competition and efficiency. It was considered that the internal consumer market had not achieved its potential, nor matched the progress made in the business to business market.

In addition there existed a host of Directives; some related to general points such as advertising, whilst others covered specific sectors of the economy of sales practices themselves, that seemed ripe for consolidation. The Green Paper initiative was welcomed by the Economic and Social Committee that identified some specific concerns, but also raised the issue of consumer education, noting that ‘Information and education are also very important, especially for the disadvantaged’.Footnote ²⁰ In fact, the educative element is of crucial importance in terms of mediumship, especially given that this is an area where legal regulation is difficult to satisfactorily apply. The consultation led to a proposal for a Directive concerning unfair commercial practices that was published on 11 May 2005.Footnote ²¹

It may not be immediately apparent how this area of consumer protection is relevant in terms of the regulation of mediums, but the principle of maximum harmonisation has been applied within this field (Collins, Reference Collins2010). This is a problematic issue for a number of reasons (Mak, Reference Mak2008). The consequence for the implementation was to sweep up areas of legislation that were seen as within the compass of the Directive, even if the protection offered by the domestic legislation was in excess of the Directive's requirements (see generally here Howells, Reference Howells2009). Thus, a review of conflicting national law, using commissioned academic research, was carried out prior to the enactment of the Consumer Protection from Unfair Trading Regulations 2008 (CPR, 2008).Footnote ²²

The Department of Trade and Industry (DTI) report concluded that Section 1 of the FMA could not be retained within the principle of maximum harmonisation (Twigg-Flesner et al., Reference Twigg-Flesner, Parry, Howells, Nordhausen, Micklitz, Stuyck and Wilhelmsson2005). The FMA was one of the pieces of legislation encompassed by the Directive and therefore replaced by the CPR (2008), which in turn implemented the Unfair Commercial Practices Directive (UCPD). The protection afforded by the FMA was said to be encompassed within Article 6 (1)(f) of the EU Directive. Article 6(1) is concerned with misleading actions:

Whilst (f) refers to:

It seems clear that the second limb of using a fraudulent device under the FMA is outside the ambit of the Directive. This leaves us with the first limb, concerned with the practice of purporting to act as a medium, or to exercise similar powers. The issue therefore revolves around the attributes, qualifications and status of the ‘medium’, and this in turn appears to reflect the genuine/fraudulent medium dichotomy. The difficulty is to apply this section to the range of services which mediums offer, and to consider how the situation differs from the position under the FMA. Under the FMA, a significant exclusion related to the exchange of money, acting for reward, without which a prosecution could not be brought. The definitions of business and ‘commercial practice’ support this concept, so a commercial practice is ‘connected with the promotion, sale, supply of a product to or from consumers whether occurring before, during or after a commercial transaction (if any)’.Footnote ²³ The services offered by a medium are caught within the definition of a product, which includes ‘any goods or services’. The offering of the ability to speak to the dead is not considered one of the thirty-one automatically unfair commercial practices, although perhaps the closest is number seventeen, which covers ‘falsely claiming that a product is able to cure illnesses, dysfunction, or malformations’.Footnote ²⁴ A key shift within the new Regulations is that it is not necessary to show an intention to deceive, but even more fundamentally the target shifts from protecting the medium to protecting the ‘consumer’.

Under the Regulations, the offence is set out in Regulation 9: ‘a trader is guilty of an offence if he engages in a commercial practice which is misleading under Regulation 5.’ Regulation 5(2) treats an action as misleading if it contains false information, or if its overall presentation in any way deceives or is likely to deceive the average consumer. As Cartwright notes:

Cartwright goes on to note that if an enforcement agency such as Trading Standards were arguing misleading action, and therefore that the presentation deceived, or intended to deceive, the average consumer, again no mens rea would be implied.Footnote ²⁵

So, we effectively have a strict liability offence. This should make the offence easier to prove than under the FMA, which did require a mens rea. The sceptics who sought the repeal of the FMA because of its lax regime have welcomed this change, on the grounds that it effectively reverses the burden of proof. However, the deception element is not lost, as a misleading action has two conditions. The first element is whether the information ‘in any way deceives or is likely to deceive the average consumer’ and the second element that ‘it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise’.Footnote ²⁶ So we have shifted from an intention to deceive to providing information that deceives or is likely to deceive the average consumer. Presumably, the information provided by the medium is the qualification that she or he has the ability to contact the dead and provide information to the client, and there are only two possible subjective views:

1. (1) The medium genuinely believes that she or he does have this ability.

2. (2) The medium does not believe that she or he has this ability.

Position (2) is equivalent to the position under the FMA, as clearly the medium would therefore have an intention to deceive. This is also caught by the new regulations, as the information provided is false and likely to deceive the consumer into contracting, as no consumer is likely to seek a reading from a medium who expresses the view that they do not have the very ability that is sought.

The key issue is how the Regulations can be applied in situation (1) above. To make the medium liable the information will have to be viewed as objectively false. This could encompass two positions. First, that in this instance the medium has no grounds to believe that she or he has such an ability, so the belief is itself unreasonable. Second, the far stricter view would be that all information as to this ability is false, which involves taking a view as to the non-existence of mediumistic powers. This latter position is unlikely, given that claiming to contact the dead is not contained within the automatically unfair practices provisions. So we are left with the situation where the issue will be an interrogation as to whether the information provided is true or not, which is essentially a test of the medium's ability.

A separate question is whether the burden of proof will rest on the medium to prove that the ability exists, or on the prosecution to demonstrate it does not. Under the FMA this rested firmly with the prosecution, but the new regulations appear to provide that the burden is reversed with ‘the psychic's responsibility to prove they did not mislead or coerce credulous consumers’.Footnote ²⁷ Given the lack of objective scientific evidence, the only possible measure could be the belief of those receiving the information. Satisfied clients provide evidence of the medium's ‘powers’ and it is only the unsatisfied client who is likely to report the medium in the first place to Trading Standards. Thus, perhaps, the only medium who may fear prosecution is one who fails to convince those paying.

In terms of how Trading Standards may deal with such claims, there has been very little in the way of reported cases. One unreported case in 2010 involving a fraudulent faith healerFootnote ²⁸ resulted in an 18-month sentence, but this was initially brought under the previous regulations (Trade Descriptions Act 1968) in addition to actions for false representation under the Fraud Act and obtaining property by deception under the Theft Act. In fact the Trading Standards offences were dropped during the preliminary hearings.Footnote ²⁹ Interestingly, the view of Trading Standards was that had the new regulations been in force these would have been utilised, most likely in tandem with the broader criminal provisions, and that the police would be encouraged to proceed under the Fraud Act where possible. This provides a potential problem if Trading Standards want the police to prosecute under the Fraud Act but the police want Trading Standards to prosecute under the regulations. The Fraud Act is discussed in detail below.

The above provides a useful litmus test of the reaction to the new regulations. Further reactions were mixed. For example, the chief executive of the British Humanist Association, Hanne Stinson, welcomed the new law, saying that ‘we hope the new regulations will make real changes to the current situation, where psychic practitioners are permitted to make completely unsubstantiated claims and to take payment for their service, without fear of legal action’.Footnote ³⁰ But the spiritualist movement appears to have differing views. A spokesman for the SNU, Minister Steven Upton, has supported the recent changes as being good news for genuine spiritualists and the vulnerable consumer. However, an organisation has been set up, the Spiritualist Workers' Association (SWA), to campaign against the new laws, stating:

The SWA have argued that the new laws are discriminatory and a ‘fundamental attack on our right to practise our religion’, according to its head, David McEntee-Taylor. He has further gone on to say that:

The SWA delivered a petition to the prime minister in April 2008 asking him to consider the ‘discriminatory’ nature of the regulations and to consult with various spiritualist organisations before the changes were implemented, but the government refuted that the new laws were discriminatory. Slapper has also argued that the new law is not discriminating against religious beliefs as ‘it is just saying that if you charge people for providing a service, you must trade fairly or risk prosecution’.Footnote ³³ Similarly, an expert in consumer law, Rupert Earle has stated that ‘if the spiritual worker is charging money then they are turning spiritualism into a consumer product and … the consumer should be protected’.Footnote ³⁴

As mediums are not referred to directly in the regulations it remains to be seen whether the law affords more protection for vulnerable consumers than the FMA appeared to do. It also remains to be seen whether genuine mediums have lost the protection the FMA afforded them and whether more will be subject to sanctions under either the criminal law or the civil law or both. It has been suggested that, in order to protect themselves under the legislation, mediums should issue disclaimers such as ‘this is for entertainment purposes’ or that the reading is a ‘scientific experiment’. The websites of both the SNU and the SWA provide examples of disclaimers that may provide an appropriate defence to potential claims such as those mentioned, but they argue that neither of those mentioned is satisfactory for them given that they are providing a religious experience and not entertainment nor a scientific experiment. The validity of these disclaimers will have to be tested in court but it does appear that the law is affording less protection to the genuine medium than the previous law did. Whether the law is now affording more protection to the vulnerable consumer than previously will also have to be tested in court and it remains to be seen whether there is an increase in prosecutions and convictions under the new regulations.

There is a further potential offence under the criminal law relating to this area, which would involve an attempt to prosecute a fraudulent medium under the Fraud Act 2006. The Fraud Act was enacted to abolish the previous deception offences under the Theft Acts 1968 and 1978. Under Section 2 of the 2006 Act, there is an offence of fraud by false representation and this would appear wide enough to encompass fraudulent mediums. This section is not, however, without its problems. The actus reus of the offence is committed by the defendant making a false representation, which may be express or implied (Section 4(4)). A representation is false if it is untrue or misleading. If a person is pretending that he is a medium then he will be caught within this legislation as he will be making a false representation that he is in contact with the dead. It will be very difficult, however, to prove that the representation of talking to the dead is false if the medium is alleging what he is doing is true. It is not clear to whom the statement has to be untrue or misleading. For example, it could be to the person to whom the statement is being made or it could be to the reasonable person. If there is no tried and tested method of proving that the defendant can contact the dead then the Crown will not be able to prove that the representations that the defendant is making are either untrue or misleading to the recipient in the sitting or whether it is to be judged objectively.

The mens rea of the offence also appears difficult to prove in relation to mediums. First, the defendant has to have knowledge that his or her false representation is, or might be, untrue or misleading. Therefore, the fraudulent medium will be caught by this if he or she knows that his or her representation to contact the dead at the very least might be untrue or misleading. But again, this will be difficult to determine if he or she is maintaining that he or she can contact the dead. If he or she believes that he or she is a genuine medium, but actually is not, then in those circumstances the actus reus is committed if it turns out that he or she is making false representations. However, this part of the mens rea will not be satisfied if his or her belief is believed that he or she was a genuine medium. This causes problems in proving the case against not only the fraudulent defendant but also the deluded defendant who thinks he or she is a genuine medium. The second part of the mens rea is that the defendant has to intend, by making the false representation, to make a gain for himself or another or to cause a loss to another or expose another to a risk of loss. The Act defines both ‘gain’ and ‘loss’ (Section 5). The gain and loss extend only to gain or loss in money and other property and property means any property, both real or personal. A gain is defined by keeping what a person has, as well as getting what a person does not have. As the offence is a conduct crime, the defendant does not actually have to make a gain or cause a loss – it just has to be intended. Therefore, if someone is pretending to contact the dead they will only be liable if he or she intends to make a gain from that or cause a loss. This part will presumably be the easiest to prove if some kind of transaction has taken place and the ‘medium’ has gained or caused a loss, though there may be problems defining this if it is not a straightforward money transaction. If a fraudulent medium is giving a reading for money then this will be a straightforward gain and will come within the offence. However, this legislation will not protect a vulnerable consumer if the medium is being fraudulent without intending a gain or loss. This may be the case if the medium is pretending, or being deluded into thinking, he or she is a genuine medium either within or outside a religious setting. This puts the recipient of the reading in a similar position to one he or she would have been in under the FMA and the regulations above, as it is the transaction of some kind which makes the actions of the fraudulent medium criminal. But this would seem to suggest that the vulnerable consumer would not be in a more protected position under the Fraud Act in relation to this aspect of the offence.

The final part of the mens rea of the offence is that the defendant has to make the false representation dishonestly. This is to be decided by application of the Ghosh test.Footnote ³⁵ This test requires an application of two limbs. The first limb is the objective one of whether the defendant has acted dishonestly according to the standards of ordinary honest people. If the jury is satisfied that the defendant is pretending to contact the dead for money then presumably this part of the limb will be satisfied. This may well be decided according to the individual views of the jury members as to whether they believe in mediumship or not. Those who do not believe may think all mediums are making false representations so will be more likely to decide that this part of the limb is satisfied. But if those on the jury do believe in mediumship and there is an absence of strong evidence that the defendant is pretending, they may well decide the defendant is not acting dishonestly. If this limb of the test is satisfied, then the jury has to consider the second limb, which is whether the defendant must have realised that what he or she was doing was, by those standards of ordinary honest people, dishonest. This is presumably easily satisfied if the jury is convinced that the defendant is pretending to contact the dead for money. This will make his or her actions subjectively dishonest. It is difficult to imagine a scenario where the jury decide the defendant cannot contact the dead to satisfy the first limb but then decide that the defendant would not consider his actions to be dishonest. There may be a situation where the jury do not believe in mediumship so find dishonesty under the first limb but then decide that the defendant honestly believes in contacting the dead and really believes that he or she is not being subjectively dishonest. But this would be unlikely given that the jury would also have to be satisfied that he or she knew that the representation to contact the dead was untrue or misleading, or even under the wider test that it might be untrue or misleading. Therefore, if the first limb of the Ghosh test is satisfied, then it is very likely that the second limb would also be satisfied.

It is unlikely that fraudulent mediums could be liable under the other fraud offences which are failing to disclose information that there is a legal obligation to disclose (Section 3), and fraud by abuse of position (Section 4). As the above shows, there are a number of problems in proving fraud by false representation so it would not appear that the Fraud Act provides an easier solution to obtaining more criminal convictions for fraudulent mediums than either the FMA or the consumer regulations. The main difference though is that under the consumer regulations the mens rea is not required but under the Fraud Act it is. This would seem to suggest that an action under the regulations would be easier to prove but this remains to be tested in the courts.