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Fraud in England and Wales AN INTRODUCTION TO UK LEGISLATION | JULY 2020 | SECOND EDITION The way in which criminal fraud is defined, investigated and prosecuted differs across the UK. This guide explains how fraud is usually dealt with under the criminal law in England and Wales. WHAT IS FRAUD? • When a person has in their • the common law offence of possession or under their control, any conspiracy to defraud; and Fraud can be broadly defined as the article for use in the course of, or in deliberate use of deception or dishonesty • offences under the Bribery Act 2010; connection with, any fraud (s6). to disadvantage or cause loss (usually Computer Misuse Act 1990; Forgery financial) to another person or party. • When a person makes, adapts, and Counterfeiting Act 1981; Identity Definitions of fraud vary from country to supplies or offers to supply any Documents Act 2010; Proceeds of country and between legal systems. article knowing that it is designed or Crime Act 2002; or the Financial In England and Wales fraud can be dealt adapted for use in fraud, or intended Services and Markets Acts 2000 with through the criminal justice system, to be used to commit fraud (s7). and 2012. the civil justice system, or both. This • When a person knowingly guide explains the criminal process only. participates in a business which CIVIL FRAUD is carried on with the intention of OVERVIEW OF THE LAW defrauding creditors or for any other Conduct which may constitute a In England and Wales, criminal fraud is fraudulent purpose (s9). criminal fraud can also result in civil mainly dealt with in the Fraud Act 2006 Offences under ss2, 3 and 4 require liability. This means that a victim (the ‘Act’). The main offences are: proof that the person intended to make of fraud may bring a separate claim under civil law to obtain a gain or cause a loss of money or • fraud by false representation; compensation or other remedies property, or expose the victim to the from the civil court. This claim can be • fraud by failing to disclose risk of such loss. information; and brought in addition to, or instead of, Dishonest intent is required for most criminal proceedings. • fraud by abuse of position. of the offences described above. The The law does not recognise a single It is also an offence to make, supply or legal test for dishonesty looks at the cause of action described as ‘civil possess articles for use in frauds and defendant’s actual state of knowledge fraud’. Instead, several different to participate in a fraudulent business or belief of the facts, and carries out an types of claim can be brought, which carried on by a sole trader. objective assessment of their conduct usually involve an element of breach – namely was it dishonest by the of trust, such as a false statement, The legislation applies to individuals standards of an ordinary reasonable a misrepresentation, or withholding and companies (‘bodies corporate’). person? Whether the defendant of the truth where there is a duty to thought it was dishonest is irrelevant.1 disclose the truth, and which results WHEN IS AN OFFENCE in reliance and loss to the victim. Bodies corporate are criminally liable COMMITTED? for frauds committed by the ‘directing Civil fraud claims only need to An offence is committed in the minds and will’ of the company. be proven ‘on the balance of probabilities’, which is a lower following circumstances. If you are ever in doubt about whether threshold than that required in • When a person dishonestly makes a conduct falls within the scope of the criminal cases. false representation with the intention legislation, always seek appropriate of making a gain or causing a loss to legal advice. another person or exposing them to REPORTING CONCERNS the risk of loss (s2). OTHER RELEVANT LEGISLATION Allegations of fraud can be reported Offences under the • When a person dishonestly fails to Theft Act 1968 to Action Fraud (the UK’s national disclose information that they have may also be charged, in particular: reporting centre for fraud and a legal duty to disclose, with the • theft (s1); and cybercrime) by calling 0300 123 2040 intention of making a gain or causing or using the online reporting tool. A a loss to another person or exposing • false accounting (s17). police crime reference number will be them to the risk of loss (s3). Making off without payment under given. Call 999 if you, or someone else, • When a person occupies a position in the Theft Act 1978 (s3) may also is in immediate danger or risk of harm. which they are expected to safeguard be charged. Depending upon the type of fraud, it the financial interests of another Other offences may also have been may be possible to report to: person and dishonestly abuse this committed including: position with the intention of making • Crimestoppers (anonymous a gain or causing a loss to another • obtaining services dishonestly (s11 of reporting); person by exposing them to the risk the Fraud Act 2006); • DWP (benefit fraud); of loss (s4). • Financial Conduct Authority MAIN FEATURES (investment scams or share fraud) or other sector regulators; Criminal offences Fraud Act 2006 Other statutory frauds • HMRC (VAT, tax or customs duties fraud); Common law offences Reporting fraud Action Fraud • Insurance Fraud Bureau (insurance Crimestoppers fraud); Serious Fraud Office • local authorities; Other government agencies and regulators • NHS (health fraud); Investigating authorities Local police forces (main) City of London Police (national lead force for fraud) • SFO (serious or complex fraud or corruption); Serious Fraud Office Crown Prosecution Service • Trading Standards (rogue traders). Prosecuting authorities (main) Serious Fraud Office INVESTIGATING FRAUD Sentencing Not every case reported to the police or Summary conviction Up to 12 months’ imprisonment or a fine or both other agencies will be investigated or prosecuted. Conviction on indictment Up to 10 years’ imprisonment or a fine or both Frauds committed in England and Wales are usually investigated by one of the 43 police forces. The City of London Police acts as the national lead on fraud and The maximum penalties following In some cases, a prosecution may take will sometimes provide assistance to conviction in the Crown Court place in the country where the fraudster other forces. for the offences of fraud by false is based. Where the offence has taken Serious and complex fraud may also representation, fraud by abuse of place wholly outside the jurisdiction of position and fraud by failure to disclose the courts of England and Wales (for be investigated by the Serious Fraud information are a sentence of ten years’ example where a UK victim has been Officewhich can also prosecute. imprisonment and/or an unlimited fine. defrauded while living or on holiday For UK-wide frauds, the English, In the Magistrates’ Court the maximum abroad and parted with money overseas) Scottish and/or Irish authorities will have penalties are a term of imprisonment the investigation and prosecution will concurrent jurisdiction and it will very of 12 months and/or an unlimited fine be undertaken by the law enforcement much depend on the nature of the crime tied to the type of offence, risk of harm agencies of the country involved and not and the level of local involvement as to and, in the case of false accounting, the in England and Wales. who leads the investigation. income bracket of the defendant. FURTHER INFORMATION PROSECUTING FRAUD The Magistrates’ and Crown Courts can also order a convicted person to pay See the resources section of The main prosecuting authority is compensation to the victim for personal our website. the Crown Prosecution Service. injury, loss or damage resulting from the Prosecutions are heard in either the criminal offence. Notes Magistrates’ Court or the Crown Court. 1 R v Barton & Booth (2020) EWCA Crim 575. The government may use confiscation The SFO is a specialist prosecuting and civil recovery orders to seize the authority tackling the top level of serious proceeds of crime, but these funds do or complex fraud. not become available as compensation This helpsheet was kindly reviewed to victims. Compensation orders are and updated by Natalie Sherborn and In some circumstances, it may be considered before, and take priority Katie Davighi at Pinsent Masons LLP. possible for a private individual over, any confiscation and civil or organisation to start a private recovery orders. prosecution. Anyone contemplating a private prosecution should seek INTERNATIONAL professional legal advice from a specialist solicitor or barrister. CONSIDERATIONS In many cases, the fraudster will have PENALTIES AND COMPENSATION committed their offences in England Both the Magistrates’ and Crown Courts and Wales from overseas, often through have discretionary power to administer the internet. This makes it more difficult, a range of penalties on conviction, though not impossible, for the police including: or other law enforcement agencies in England and Wales to find and bring • a custodial sentence; them to justice in the UK. The assistance • a financial penalty; as well as of agencies in the overseas country (or countries) concerned will often be • other consequences such as an order sought along with extradition to the UK to pay compensation. where appropriate. FRAUD ADVISORY PANEL Chartered Accountants’ Hall © Fraud Advisory Panel 2020. Laws and regulations referred to in this Fraud Advisory Panel publication Moorgate Place London EC2R 6EA UK are stated as at 01 July 2020. Every effort has been made to make sure the information it contains is T +44 (0)20 7920 8721 accurate at the time of creation. Fraud Advisory Panel cannot guarantee the completeness or accuracy E [email protected] of the information in this publication and shall not be responsible for errors or inaccuracies.
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