Fraud
What constitutes a fraud?
A fraud offence can sometimes overlap with theft, however in order for someone to be guilty of the act of fraud, the prosecution must prove that the following:
- The person’s conduct was dishonest
- The person’s intention was to either make a gain, or cause/risk loss to another
- No gain or loss has to have resulted from the person’s conduct
At ULA Solicitors we are able to assist with all the different types of fraud offences.
What are the different types of fraud matters?
There are four main types of fraud which are as follows:
- Fraud by false representation
- Fraud by failing to disclose information where one is legally required to disclose the said information
- Fraud by abuse of position
- Benefit fraud
What will the Crown Prosecution Service consider when deciding to charge someone with a fraud offence?
For each of the fraud offences stated above the CPS will be considering something slightly different in order to make a decision as to charge the defendant.
For fraud by false representation, the CPS will closely consider the conduct of the individual in question. His ought to be one whereby he made a false representation, did so dishonestly knowing it to be untrue or misleading and with an intent to cause a loss or make a gain for themselves.
In terms of fraud by failing to disclose information the CPS will just consider whether the individual in question failed to disclose that which he had a legal duty to disclose, and did so with a dishonest intent.
In terms of the offence of fraud by abuse of position the CPS will consider whether the individual occupies a position whereby he is expected to safeguard another’s financial position, whether the individual abused their position, did so knowing it to be dishonest and intended to make a gain, or cause a loss from their actions. It is important to note that no gain or loss need actually be made.
Benefit fraud, is a slightly different offence. For the CPS to make a decision to charge someone for this offence the individual must have made a false statement or representation, produced or furnished a document or information which is false, failed to notify about a change in circumstances.
How can a solicitor assist?
For all of the above offence an individual would require a criminal defence solicitor. Whether you are called for a voluntary interview at the Job Centre or arrested and taken to the police station you have a right to legal representation. Even though the interview in relation to benefit fraud does not always take place at a police station, this does not mean that an individual will not be charged and hence asked to attend court. A solicitor is valuable from the point of interview until the end of the case. As one solicitor can effectively be elected from the start of the individual’s case and can stay with them through to the end, it is important to elect a solicitor whom you trust and has expertise knowledge in this area.
Fraud cases can result in a lengthy custodial sentence and hence are many times dealt with in the Crown Court. A lot of work can go into preparing the defence case again making it important that you select your solicitor with care. One should note that alongside the solicitor a barrister will also be elected to deal with those cases which are being heard in the Crown Court. The barrister does not need to be selected by the individual, their solicitor will have barristers whom they work closely with and will select from those, someone with the relevant experience and hence best able to represent the client.
Fees?
As fraud is a criminal matter in the UK the government funds representation for those individuals charged with a criminal offence through legal aid. However, one should note that not every individual is able to get legal aid. This falls on two main factors, the income of the individual, and if they are married then the joint income of themselves and their partner. Furthermore, the severity of the offence and hence whether it is in the interests of justice that the client be represented. Therefore, the more serious the offence, the more likely that it is in the interest of justice that the individual is represented, hence legal aid would be granted. Fraud would be one such offence which would fulfilthis latter criterion easily, as it can carry a custodial sentence of up to 10 years.
Fraud by false representation
Section 2 of the Fraud Act 2006 makes it an offence to commit fraud by false representation.
In order for an offence to qualify as a fraud by false representation an individual must make a representation either express or implied, dishonestly with the intention of making a gain or causing loss to another.
The case of R v Ghosh 1982 set out a two stage test for the definition of dishonesty:
i) Whether the individual’s behaviour would be classified as dishonest by the reasonable and honest person
If the answer to the above question is positive then one would consider whether
ii) The individual was aware that their conduct was dishonest and would be regarded as such by the reasonable and honest person.
This offence is triable either way which means that it may be heard in the magistrate’s court or the crown court however, most of the time where the amount of the gain/loss is substantial the matter will be sent to the Crown Court after the initial hearing in the magistrates court, for either a trial or sentencing depending on the plea of the individual concerned. The maximum sentence for such an offence is 10 years imprisonment.
Fraud by failing to disclose information where one is legally required to disclose the said information
Section 1 of the Fraud Act 2006 makes it an offence to commit fraud by failing to disclose information.
Like with the offence fraud offences here the individual must have acted dishonestly in failing to disclose information which he was under a legal duty to do so, and must have intended to either make a gain or cause a loss to another. Again R v Ghosh would apply in determining whether the individual was acting dishonestly. One should note that the disclosure of the information when challenged is not a defence in law. This is because the individual would have continued to be dishonest had the enquiry not been made.
This offence is triable either way which means that it may be heard in the magistrate’s court or the crown court however, most of the time where the amount of the gain/loss is substantial the matter will be sent to the Crown Court after the initial hearing in the magistrates court, for either a trial or sentencing depending on the plea of the individual concerned. The maximum sentence for such an offence is 10 years imprisonment.
Fraud by abuse of position
Section 4 of the Fraud Act 2006 makes it an offence to commit fraud by abuse of position.
Someone is thought to be guilty of fraud by abuse of position where that individual occupies a position in which he was expected to safeguard/not act against the financial interests of another, and abused their position dishonestly, with the intention to make a gain or cause a loss.
The Law Commission has given a lengthy explanation for the term position, namely that it means a position of trust and one carrying a moral obligation. It need not matter whether an individual is successful in their attempt to cause loss or make a gain, one would be guilty of the offence once the abuse of position is carried out.
This offence is triable either way which means that it may be heard in the magistrate’s court or the crown court however, most of the time where the amount of the gain/loss is substantial the matter will be sent to the Crown Court after the initial hearing in the magistrates court, for either a trial or sentencing depending on the plea of the individual concerned. The maximum sentence for such an offence is 10 years imprisonment.
Benefit fraud
This offence is punishable under Section 111A of the Social Security Administration Act 1992.
An individual is guilty of this offence if he or she makes a make statement, furnishes a document false in nature, fails to notify a change in circumstances or cause another to fail to disclose a change in circumstances with a view to obtaining a benefit.
This offence like other fraud offences is triable either way and hence can be heard in both the magistrates and crown court. The maximum penalty one can receive for this offence is imprisonment up to seven years.