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Common Law Fraud Liability to Account for It to the Owner

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FRAUD FACTS Issue 17 March 2014 (3rd edition) INFORMATION FOR ORGANISATIONS Fraud in Scotland Fraud does not respect boundaries. Fraudsters use the same tactics and deceptions, and cause the same harm throughout the UK. However, the way in which the crimes are defined, investigated and prosecuted can depend on whether the fraud took place in Scotland or England and Wales. Therefore it is important for Scottish and UK-wide businesses to understand the differences that exist. What is a ‘Scottish fraud’? Embezzlement Overview of enforcement Embezzlement is the felonious appropriation This factsheet focuses on criminal fraud. There are many interested parties involved in of property without the consent of the owner In Scotland criminal fraud is mainly dealt the detection, investigation and prosecution with under the common law and a number where the appropriation is by a person who of statutory offences. The main fraud offences has received a limited ownership of the of fraud in Scotland, including: in Scotland are: property, subject to restoration at a future • Police Service of Scotland time, or possession of property subject to • common law fraud liability to account for it to the owner. • Financial Conduct Authority • uttering There is an element of breach of trust in • Trading Standards • embezzlement embezzlement making it more serious than • Department for Work and Pensions • statutory frauds. simple theft. In most cases embezzlement involves the appropriation of money. • Crown Office and Procurator Fiscal Service. It is important to note that the Fraud Act 2006 does not apply in Scotland (apart from Statutory frauds s10(1) which increases the maximum In addition there are a wide range of statutory Investigating fraud custodial sentence for fraudulent trading to offences which are closely related to the 10 years). common law offence. The main examples Frauds committed in Scotland are usually can be found in the following statutes: investigated by the Police Service of Scotland, Main criminal offences • Bankruptcy (Scotland) Act 1985 which has regional specialist units within its Common law fraud • Business Protection from Misleading Specialist Crime Division to deal with Fraud is committed when someone achieves Marketing Regulations 2008 complex economic crime cases. a practical result by the means of a false • Companies Act 2006 Serious and complex fraud and other pretence. In other words, where someone • Computer Misuse Act 1990 is caused to do something they would not economic crimes are investigated under otherwise have done by use of deception. • Consumer Protection from Unfair Trading the direction of the Economic Crime Unit, Proving an intention to deceive is essential Regulations 2008 part of the Serious Organised Crime Division in all cases, and can often be inferred from • Criminal Justice and Licensing (Scotland) the actions of the accused. The range of Act 2010 (articles for use in frauds) of the Crown Office and Procurator Fiscal ‘false pretences’ observed in Scottish courts is • Financial Services and Markets Act 2000 Service (COPFS) which is Scotland's incredibly wide, from outright lies to sinister (to protect investors) prosecution service (see ‘Prosecuting fraud’). silence, and the practical results that have • Food Safety Act 1990 (labelling and been achieved are equally diverse. If the substandard food) In the investigation of serious or complex practical result is not achieved there may be a prosecution for attempted fraud. • Forgery and Counterfeiting Act 1982 fraud the Lord Advocate the ministerial head (counterfeiting of bank notes and coins) of COPFS may exercise powers under ss27 Common law fraud is the common ‘catch all’ • Insolvency Act 1986 for most fraud prosecutions in Scotland. and 28 of the Criminal Law (Consolidation) • Weights and Measures Act 1985. (Scotland) Act 1995 to authorise a nominated Uttering investigator to compel the production of The crime of ‘uttering’ occurs when someone tenders ‘as genuine’ a forged document to Civil fraud documents and to require a person to answer the prejudice of another person. Forging a questions and to provide information. These Fraud can also feature in a civil context as document only becomes a crime if it is shown powers are similar to the Serious Fraud to have been tendered (to an individual or a delict (or tort) allowing recovery of loss, the public at large) with an intention to for example where a party is induced to Office’s (SFO) s2 powers. defraud/cause someone prejudice. enter into a contract through fraudulent misrepresentation. As with criminal fraud, For UK-wide frauds, both the English and In many cases, uttering and fraud are the false statement must be made with Scottish authorities will have concurrent interchangeable offences that can equally the relevant intention; however, unlike jurisdiction and it will very much depend on apply to the same circumstances, but for the crime of fraud, recklessness or prosecutors tend to proceed with an uttering negligence is sufficient for civil fraud. the nature of the crime and the level of local charge if a forged document is used. involvement as to who leads the investigation. Prosecuting fraud be used for the purpose of investigating may remit to the High Court for sentence a serious or complex fraud which is any case where they hold that any The sole prosecuting authority in Scotland is prosecutable in England, Wales or Northern competent sentence that they could the Crown Office and Procurator Fiscal Service Ireland. The SFO also works with Scottish impose would be inadequate. The (COPFS). Most fraud prosecutions are dealt authorities in relation to UK-wide fraud. maximum penalty at the High Court is an with by the local Procurator Fiscal. The unlimited fine and/or life imprisonment Procurator Fiscal has the duty to consider the Once a decision has been made as regards subject to any restrictions imposed by evidence available to them and make further the nature of the crime and the evidence statute. enquiries as necessary. available to the prosecutors, the individual may be served with either: On conviction the Crown may seek to use its In line with the government’s prioritisation powers under the Proceeds of Crime Act 2002 of serious crime, the Crown Office has • A summary complaint: used for less to confiscate from the accused a fixed sum of serious crime and heard by a Sheriff sitting established a Serious and Organised Crime money relating to the benefit obtained from without a jury. The maximum penalty Division which includes an Economic Crime their general criminal conduct in a criminal on conviction is imprisonment for up to Unit (launched on 17 March 2011) with lifestyle case and from their particular criminal 12 months and/or a fine up to the primary responsibility for the investigation conduct otherwise. ‘prescribed sum’. and prosecution of serious fraud and It is important to note that where insufficient • An indictment: used for more serious economic crimes of a scale and importance evidence exists to commence a criminal crimes. The case will then proceed either that require handling by that specialised unit. prosecution, a case may be referred to the with a Sheriff (lower-level judge) and jury The local Procurator Fiscal may, therefore, Crown Office’s Civil Recovery Unit to enable or in the High Court. If a prosecution is choose to pass the matter to them if they legal action to be taken to recover the successful, the maximum penalty at Sheriff consider the crime serious enough. proceeds of crime through the civil courts and jury level is an unlimited fine and/or instead. The SFO does not have jurisdiction to imprisonment of up to five years subject prosecute in Scotland, although its powers to any wider power granted by statute for under s2 of the Criminal Justice Act 1987 may particular offences. In addition, the Sheriff Practical differences The steps to be taken by businesses to Summary of main differences prevent and identify fraud on or within their organisations are the same throughout Main provisions Scotland England and Wales the UK. While the terminology and support structures may change, within both Criminal offences Common law fraud Fraud Act 2006 jurisdictions the relevant authorities seek to Uttering Other statutory frauds address the same problem. One important difference in criminal law between the two Embezzlement may lie in the fact that Scottish courts Other statutory frauds require ‘corroboration’ of evidence (ie two independent sources of evidence pointing to Prosecuting authorities Crown Office and Procurator Crown Prosecution Service the crime having been committed). In most fraud cases this is unlikely to make a practical (main) Fiscal Service Serious Fraud Office difference and in both jurisdictions businesses should seek to identify and retain as much Investigating authorities Police Service of Scotland Local police forces information as they can in order to assist a (main) City of London Police successful prosecution. (national lead force for fraud) Serious Fraud Office Sentencing: Summary conviction Up to 12 months Up to 12 months imprisonment or a fine imprisonment or a fine up to the prescribed sum or both The Fraud Advisory Panel gratefully or both acknowledges the contribution of Conviction on Up to life imprisonment Up to 10 years imprisonment Tom Stocker (Pinsent Masons LLP) indictment or unlimited fine or both or a fine or both and Barbara Bolton (Tods Murray LLP) in the preparation of this Fraud Facts. Fraud Advisory Panel, Chartered Accountants’ Hall, Moorgate Place, London EC2R 6EA. Distributed by Tel: 020 7920 8721, Fax: 020 7920 8545, Email: [email protected]. Company Limited by Guarantee Registered in England and Wales No. 04327390 Registered Charity No. 1108863 © Fraud Advisory Panel 2014 All rights reserved. If you want to reproduce or redistribute any of the material in this publication, you should first get the Fraud Advisory Panel’s permission in writing. The Fraud Advisory Panel and the contributors will not be liable for any reliance you place on the information in this Fraud Facts.
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