DOCSLIB.ORG

Fraud in England and Wales

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Fraud in England and Wales 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.
Load more

Recommended publications
  • RE-VISITING the FRAUD ACT 2006 – a STEP TOO FAR? Hannah Willcocks
    RE-VISITING THE FRAUD ACT 2006 – A STEP TOO FAR? Hannah Willcocks Brought into force on 15th January 2007,1 the Fraud Act 2006 (‘the Act’) has now been part of the criminal law of England and Wales for over 12 years. Through the introduction of a new general offence of fraud, its aim was to improve the law by making it: a. more comprehensible to juries, especially in serious fraud trials; b. a useful tool in effective prosecutions; c. simpler and therefore fairer; and d. more flexible so able to encompass all forms of fraud 2 and “deal with developing technology”.3 Following the Act’s implementation, it has generally4 been accepted5 that the Act has managed to overcome the vast majority of the difficulties previously encountered with the old offences of deception.6 In 2012, in its Post-Legislative Assessment of the Fraud Act 2006, the Ministry of Justice (‘MoJ’) concluded that the aims and objectives of the 1 The Fraud Act 2006 (Commencement) Order 2006 (SI 2006/3200). 2 Law Commission, Fraud (Law Com No 276, Cm 5560, 2002), para 1.6. 3 Home Office, Fraud Law Reform: Consultation on Proposals for Legislation (2004) p. 5. 4 For a contrary view see Anthony Arlidge QC, Jonathan Fisher QC, Alexander Milne QC and Polly Sprenger, Arlidge and Parry on Fraud (5th edn, Sweet & Maxwell 2016) 44, para 3-005. 5 See e.g. Simester and Sullivan’s Criminal Law, Theory and Doctrine (5th edn, Hart Publishing Ltd 2013) 610; Andrew Ashworth & Jeremy Horder, Principles of Criminal Law (7th edn, Oxford University Press 2013) 405; Carol Withey ‘The Fraud Act 2006 – some early observations and comparisons with the former law’ (2007) 71(3) Journal of Criminal Law, 220 – 237, 228 – 236; Nicholas Yeo, ‘Bull’s-Eye’, 157 NLJ 212 & 418.
    [Show full text]
  • Think Box 13.5
    Loveless, Allen, and Derry: Complete Criminal Law 7e, Chapter 13 Thinking Point 13.1 Has D committed fraud by false representation under s2 Fraud Act 2006? An auction house sells a painting by Picasso, believing it to be genuine. It turns out to be a forgery. Do they have MR for s2? Answer guidance 1. AR: False representation MR: Knowledge that the representation is false, dishonesty and intention to make a gain/loss/risk loss to another. Any auction house will always harbour a suspicion about the authenticity of art. They will therefore know that their representation might be false. But in the absence of dishonesty, assessed objectively (Ivey) they will lack MR. Thinking Point 13.2 D applies for foreign travel insurance for a forthcoming holiday and deliberately fails to disclose a recent operation involving major surgery. Whilst on holiday, her condition deteriorates and she requires expensive medical treatment. She submits a claim for this under the insurance policy. Has she committed fraud under s3? Answer guidance Yes. Any type of insurance contract is one of ‘utmost good faith’ and D will have both a contractual and also a criminal duty to disclose relevant information. The presence of dishonesty and intent to make a gain/cause loss/expose another to risk of loss will secure conviction under s1. Dishonesty is assessed objectively. Thinking Point 13.3 Has D committed fraud under s4? 1. D, a Citizen’s Advice Bureau adviser, professing to offer free advice and assistance, obtains compensation of £5000 on behalf of an elderly client for whom she had taken legal proceedings.
    [Show full text]
  • Failing in Corporate Governance and Warning Signs of a Corporate Collapse
    A Service of Leibniz-Informationszentrum econstor Wirtschaft Leibniz Information Centre Make Your Publications Visible. zbw for Economics Abid, Ghulam; Ahmed, Alia Article Failing in corporate governance and warning signs of a corporate collapse Pakistan Journal of Commerce and Social Sciences (PJCSS) Provided in Cooperation with: Johar Education Society, Pakistan (JESPK) Suggested Citation: Abid, Ghulam; Ahmed, Alia (2014) : Failing in corporate governance and warning signs of a corporate collapse, Pakistan Journal of Commerce and Social Sciences (PJCSS), ISSN 2309-8619, Johar Education Society, Pakistan (JESPK), Lahore, Vol. 8, Iss. 3, pp. 846-866 This Version is available at: http://hdl.handle.net/10419/188173 Standard-Nutzungsbedingungen: Terms of use: Die Dokumente auf EconStor dürfen zu eigenen wissenschaftlichen Documents in EconStor may be saved and copied for your Zwecken und zum Privatgebrauch gespeichert und kopiert werden. personal and scholarly purposes. Sie dürfen die Dokumente nicht für öffentliche oder kommerzielle You are not to copy documents for public or commercial Zwecke vervielfältigen, öffentlich ausstellen, öffentlich zugänglich purposes, to exhibit the documents publicly, to make them machen, vertreiben oder anderweitig nutzen. publicly available on the internet, or to distribute or otherwise use the documents in public. Sofern die Verfasser die Dokumente unter Open-Content-Lizenzen (insbesondere CC-Lizenzen) zur Verfügung gestellt haben sollten, If the documents have been made available under an Open gelten abweichend von diesen Nutzungsbedingungen die in der dort Content Licence (especially Creative Commons Licences), you genannten Lizenz gewährten Nutzungsrechte. may exercise further usage rights as specified in the indicated licence. https://creativecommons.org/licenses/by-nc/4.0/ www.econstor.eu Pak J Commer Soc Sci Pakistan Journal of Commerce and Social Sciences 2014, Vol.
    [Show full text]
  • Imagereal Capture
    Some Aspects of Theft of Computer Software by M. Dunning I. INTRODUCTION The purpose of this paper is to test the capability of New Zealand law to adequately deal with the impact that computers have on current notions of crimes relating to property. Has the criminal law kept pace with technology and continued to protect property interests or is our law flexible enough to be applied to new situations anyway? The increase of the moneyless society may mean a decrease in money motivated crimes of violence such as robbery, and an increase in white collar crime. Every aspect of life is being computerised-even our per­ sonality is on character files, with the attendant )ossibility of criminal breach of privacy. The problems confronted in this area are mostly definitional. While it may be easy to recognise morally opprobrious conduct, the object of such conduct may not be so easily categorised as criminal. A factor of this is a general lack of understanding of the computer process, so this would seem an appropriate place to begin the inquiry. II. THE COMPUTER Whiteside I identifies five key elements in a computer system. (1) Translation of data into a form readable by the computer, called input; and subject to manipulation by the introduction of false data. Remote terminals can be situated anywhere outside the cen­ tral processing unit (CPU), connected by (usually) telephone wires over which data may be transmitted, e.g. New Zealand banks on­ line to Databank. Outside users are given a site code number (identifying them) and an access code number (enabling entry to the CPU) which "plug" their remote terminal in.
    [Show full text]
  • Common Law Fraud Liability to Account for It to the Owner
    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).
    [Show full text]
  • Crimes Act 2016
    REPUBLIC OF NAURU Crimes Act 2016 ______________________________ Act No. 18 of 2016 ______________________________ TABLE OF PROVISIONS PART 1 – PRELIMINARY ....................................................................................................... 1 1 Short title .................................................................................................... 1 2 Commencement ......................................................................................... 1 3 Application ................................................................................................. 1 4 Codification ................................................................................................ 1 5 Standard geographical jurisdiction ............................................................. 2 6 Extraterritorial jurisdiction—ship or aircraft outside Nauru ......................... 2 7 Extraterritorial jurisdiction—transnational crime ......................................... 4 PART 2 – INTERPRETATION ................................................................................................ 6 8 Definitions .................................................................................................. 6 9 Definition of consent ................................................................................ 13 PART 3 – PRINCIPLES OF CRIMINAL RESPONSIBILITY ................................................. 14 DIVISION 3.1 – PURPOSE AND APPLICATION ................................................................. 14 10 Purpose
    [Show full text]
  • Fraud Risk Management: a Guide to Good Practice
    Fraud risk management A guide to good practice Acknowledgements This guide is based on the fi rst edition of Fraud Risk Management: A Guide to Good Practice. The fi rst edition was prepared by a Fraud and Risk Management Working Group, which was established to look at ways of helping management accountants to be more effective in countering fraud and managing risk in their organisations. This second edition of Fraud Risk Management: A Guide to Good Practice has been updated by Helenne Doody, a specialist within CIMA Innovation and Development. Helenne specialises in Fraud Risk Management, having worked in related fi elds for the past nine years, both in the UK and other countries. Helenne also has a graduate certifi cate in Fraud Investigation through La Trobe University in Australia and a graduate certifi cate in Fraud Management through the University of Teeside in the UK. For their contributions in updating the guide to produce this second edition, CIMA would like to thank: Martin Birch FCMA, MBA Director – Finance and Information Management, Christian Aid. Roy Katzenberg Chief Financial Offi cer, RITC Syndicate Management Limited. Judy Finn Senior Lecturer, Southampton Solent University. Dr Stephen Hill E-crime and Fraud Manager, Chantrey Vellacott DFK. Richard Sharp BSc, FCMA, MBA Assistant Finance Director (Governance), Kingston Hospital NHS Trust. Allan McDonagh Managing Director, Hibis Europe Ltd. Martin Robinson and Mia Campbell on behalf of the Fraud Advisory Panel. CIMA would like also to thank those who contributed to the fi rst edition of the guide. About CIMA CIMA, the Chartered Institute of Management Accountants, is the only international accountancy body with a key focus on business.
    [Show full text]
  • Criminal Law: Conspiracy to Defraud
    CRIMINAL LAW: CONSPIRACY TO DEFRAUD LAW COMMISSION LAW COM No 228 The Law Commission (LAW COM. No. 228) CRIMINAL LAW: CONSPIRACY TO DEFRAUD Item 5 of the Fourth Programme of Law Reform: Criminal Law Laid before Parliament bj the Lord High Chancellor pursuant to sc :tion 3(2) of the Law Commissions Act 1965 Ordered by The House of Commons to be printed 6 December 1994 LONDON: 11 HMSO E10.85 net The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Commissioners are: The Honourable Mr Justice Brooke, Chairman Professor Andrew Burrows Miss Diana Faber Mr Charles Harpum Mr Stephen Silber QC The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London, WClN 2BQ. 11 LAW COMMISSION CRIMINAL LAW: CONSPIRACY TO DEFRAUD CONTENTS Paragraph Page PART I: INTRODUCTION 1.1 1 A. Background to the report 1. Our work on conspiracy generally 1.2 1 2. Restrictions on charging conspiracy to defraud following the Criminal Law Act 1977 1.8 3 3. The Roskill Report 1.10 4 4. The statutory reversal of Ayres 1.11 4 5. Law Commission Working Paper No 104 1.12 5 6. Developments in the law after publication of Working Paper No 104 1.13 6 7. Our subsequent work on the project 1.14 6 B. A general review of dishonesty offences 1.16 7 C. Summary of our conclusions 1.20 9 D.
    [Show full text]
  • Chapter 8 Criminal Conduct Offences
    Chapter 8 Criminal conduct offences Page Index 1-8-1 Introduction 1-8-2 Chapter structure 1-8-2 Transitional guidance 1-8-2 Criminal conduct - section 42 – Armed Forces Act 2006 1-8-5 Violence offences 1-8-6 Common assault and battery - section 39 Criminal Justice Act 1988 1-8-6 Assault occasioning actual bodily harm - section 47 Offences against the Persons Act 1861 1-8-11 Possession in public place of offensive weapon - section 1 Prevention of Crime Act 1953 1-8-15 Possession in public place of point or blade - section 139 Criminal Justice Act 1988 1-8-17 Dishonesty offences 1-8-20 Theft - section 1 Theft Act 1968 1-8-20 Taking a motor vehicle or other conveyance without authority - section 12 Theft Act 1968 1-8-25 Making off without payment - section 3 Theft Act 1978 1-8-29 Abstraction of electricity - section 13 Theft Act 1968 1-8-31 Dishonestly obtaining electronic communications services – section 125 Communications Act 2003 1-8-32 Possession or supply of apparatus which may be used for obtaining an electronic communications service - section 126 Communications Act 2003 1-8-34 Fraud - section 1 Fraud Act 2006 1-8-37 Dishonestly obtaining services - section 11 Fraud Act 2006 1-8-41 Miscellaneous offences 1-8-44 Unlawful possession of a controlled drug - section 5 Misuse of Drugs Act 1971 1-8-44 Criminal damage - section 1 Criminal Damage Act 1971 1-8-47 Interference with vehicles - section 9 Criminal Attempts Act 1981 1-8-51 Road traffic offences 1-8-53 Careless and inconsiderate driving - section 3 Road Traffic Act 1988 1-8-53 Driving
    [Show full text]
  • Dr Stephen Copp and Alison Cronin, 'The Failure of Criminal Law To
    Dr Stephen Copp and Alison Cronin, ‘The Failure of Criminal Law to Control the Use of Off Balance Sheet Finance During the Banking Crisis’ (2015) 36 The Company Lawyer, Issue 4, 99, reproduced with permission of Thomson Reuters (Professional) UK Ltd. This extract is taken from the author’s original manuscript and has not been edited. The definitive, published, version of record is available here: http://login.westlaw.co.uk/maf/wluk/app/document?&srguid=i0ad8289e0000014eca3cbb3f02 6cd4c4&docguid=I83C7BE20C70F11E48380F725F1B325FB&hitguid=I83C7BE20C70F11 E48380F725F1B325FB&rank=1&spos=1&epos=1&td=25&crumb- action=append&context=6&resolvein=true THE FAILURE OF CRIMINAL LAW TO CONTROL THE USE OF OFF BALANCE SHEET FINANCE DURING THE BANKING CRISIS Dr Stephen Copp & Alison Cronin1 30th May 2014 Introduction A fundamental flaw at the heart of the corporate structure is the scope for fraud based on the provision of misinformation to investors, actual or potential. The scope for fraud arises because the separation of ownership and control in the company facilitates asymmetric information2 in two key circumstances: when a company seeks to raise capital from outside investors and when a company provides information to its owners for stewardship purposes.3 Corporate misinformation, such as the use of off balance sheet finance (OBSF), can distort the allocation of investment funding so that money gets attracted into less well performing enterprises (which may be highly geared and more risky, enhancing the risk of multiple failures). Insofar as it creates a market for lemons it risks damaging confidence in the stock markets themselves since the essence of a market for lemons is that bad drives out good from the market, since sellers of the good have less incentive to sell than sellers of the bad.4 The neo-classical model of perfect competition assumes that there will be perfect information.
    [Show full text]
  • You Never Saw a Fish on the Wall with Its Mouth Shut
    IAN WINTER QC YOU NEVER SAW A FISH ON THE WALL WITH ITS MOUTH SHUT THE PRIVILEGE AGAINST SELF-INCRIMINATION AND THE DECISION OF THE COURT OF APPEAL IN R V K [2009] EWCA CRIM 1640 ISSUE NINE WINTER 2009 PUBLISHED BY CLOTH FAIR CHAMBERS CLOTH FAIR CHAMBERS Nicholas Purnell QC Richard Horwell QC John Kelsey-Fry QC Timothy Langdale QC Ian Winter QC Jonathan Barnard Clare Sibson Cloth Fair Chambers specialises in fraud and commercial crime, complex and organised crime, regulatory and disciplinary matters, defamation and in broader litigation areas where specialist advocacy and advisory skills are required. 2 CLOTH FAIR CHAMBERS IAN WINTER QC YOU NEVER SAW A FISH ON THE WALL WITH ITS MOUTH SHUT1 THE PRIVILEGE AGAINST SELF-INCRIMINATION AND THE DECISION OF THE COURT OF APPEAL IN R V K [2009] EWCA CRIM 1640 ISSUE NINE WINTER 2009 PUBLISHED BY CLOTH FAIR CHAMBERS 1 Unreliably attributed to Sally Berger but the true origin is unclear. King John, pressured by the barons and threatened with insurrection, reluctantly signs the great charter on the Thames island of Runnymede CLOTH FAIR CHAMBERS he fish on the wall has its mouth open unreliable testimony produced as a result of it. because it couldn’t resist the temptation to open it when the occasion appeared to Had paragraph 38 of Magna Carta remained the law, which justify doing so. There are few convicted could have been the case even once the use of torture had defendants who likewise could resist the been outlawed2, the question over the admissibility of the temptation to open their mouths and accused’s statement would not have been whether the Tthereby assist their prosecutors with their own words.
    [Show full text]
  • • False Representation • Failure to Disclose Information When There Is a Legal Duty to Do So • Abuse of Position
    Fraud, Corruption & Bribery Policy Policy Statement The Trust is committed to the prevention of fraud, corruption, bribery and any other forms of dishonesty and will promote an anti-fraud, anti-corruption and anti-bribe culture. The Trust operates a zero-tolerance attitude to fraud, corruption and bribery and requires those who act on behalf of the Trust to act honestly and with integrity at all times, and to report all suspicious activities. The Trust will investigate all suspicious activities committed by staff, charities, consultants, suppliers, the ELM and other third parties. It is the Trust’s policy to conduct its business in an honest and ethical manner and expects the ELM to have processes and policies in place to achieve a zero-tolerance approach to fraud, bribery and corruption. The Trust and its staff are committed to acting professionally, fairly and with integrity in all business dealings and relationships. Policy Headline: The Trust operates a zero tolerance approach to fraud, bribery and corruption. Policy Context What is fraud and corruption? The Fraud Act 2006 introduces a statutory single offence of fraud which can be committed in three different ways: • false representation • failure to disclose information when there is a legal duty to do so • abuse of position. For practical purposes fraud can be defined as dishonest conduct with the intention to make gain, cause a loss, or cause the risk of a loss to another. Existing offences such as theft, corruption, false accounting, forgery, counterfeiting and blackmail continue to be offences under previous relevant legislation. ‘Corruption’ is defined as the offering, giving, soliciting, or acceptance of an inducement or reward which may influence any person to act inappropriately.
    [Show full text]