AN INTRODUCTION TO UK LEGISLATION | JULY 2020 | FIRST 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 Northern Ireland.
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 article for use in the course of, or in the deliberate use of deception or connection with, any fraud (s6). • offences under the Bribery Act 2010; dishonesty to disadvantage or cause Computer Misuse Act 1990; Forgery loss (usually financial) to another • When a person makes, adapts, and Counterfeiting Act 1981; Identity person or party. Definitions of fraud supplies or offers to supply any Documents Act 2010; Proceeds of vary from country to country and article knowing that it is designed or Crime Act 2002; or the Financial adapted for use in fraud, or intended Services and Markets Acts 2000 between legal systems. to be used to commit fraud (s7). and 2012. In Northern Ireland fraud can be dealt • When a person knowingly with through the criminal justice participates in a business which CIVIL FRAUD system, the civil justice system, or is carried on with the intention of both. This guide explains the criminal defrauding creditors or for any other process only. fraudulent purpose (s9). Conduct which may constitute a criminal fraud can also result in civil OVERVIEW OF THE LAW Offences under ss2, 3 and 4 require liability. This means that a victim of proof that the person intended to fraud may bring a separate claim In Northern Ireland, criminal fraud is make a gain or cause a loss of money under civil law to obtain compensation mainly dealt with in the Fraud Act or property, or expose the victim to the or other remedies from the civil court. 2006 (the ‘Act’). The main offences risk of such loss. are: This claim can be brought in addition Dishonest intent is required for most to, or instead of, criminal proceedings. • fraud by false representation; of the offences described above. The legal test for dishonesty looks at the The law does not recognise a single • fraud by failing to disclose cause of action described as ‘civil information; and defendant’s actual state of knowledge or belief of the facts, and carries out an fraud’. Instead, several different • fraud by abuse of position. objective assessment of their conduct types of claim can be brought, which – namely was it dishonest by the usually involve an element of breach It is also an offence to make, supply or standards of an ordinary reasonable of trust, such as a false statement, possess articles for use in frauds and person? Whether the defendant a misrepresentation, or withholding to participate in a fraudulent business thought it was dishonest is irrelevant. 1 of the truth where there is a duty to carried on by a sole trader. disclose the truth, and which results in Bodies corporate are criminally liable The legislation applies to individuals reliance and loss to the victim. for frauds committed by the ‘directing and companies (‘bodies corporate’). minds and will’ of the company. Civil fraud claims only need to be WHEN IS AN OFFENCE If you are ever in doubt about whether proven ‘on the balance of probabilities’ which is a lower threshold than that COMMITTED? conduct falls within the scope of the legislation, always seek appropriate required in criminal cases. An offence is committed in the legal advice. following circumstances. • When a person dishonestly makes a OTHER RELEVANT LEGISLATION ASSISTING OR CONCEALING false representation with the intention Offences under theTheft Act OFFENCES of making a gain or causing a loss to (Northern Ireland) 1969 may also be Under the Criminal Law Act (Northern another person or exposing them to charged, in particular: the risk of loss (s2). Ireland) 1967 it is an offence to assist • theft (s7); and offenders or conceal offences. An • When a person dishonestly fails to individual who knows or believes disclose information that they have • false accounting (s17), where that an offence has been committed a legal duty to disclose, with the a person knowingly falsifies or and has information which is likely to conceals information required for an intention of making a gain or causing secure (or to be of material assistance a loss to another person or exposing accounting purpose, knowing that in securing) the apprehension, them to the risk of loss (s3). the information is misleading. prosecution or conviction of any • When a person occupies a position in Making off without payment under person for that offence, must give which they are expected to safeguard the Theft Act 1978 (s3) may also that information to the Police the financial interests of another be charged. Service of Northern Ireland within a person and dishonestly abuses this reasonable timeframe. position with the intention of making Other offences may also have been a gain or causing a loss to another committed including: Failure to do so is an offence which carries a maximum penalty of 10 years’ person by exposing them to the risk • obtaining services dishonestly (s11 of imprisonment. of loss (s4). the Fraud Act 2006); REPORTING CONCERNS MAIN FEATURES
Allegations of fraud can be reported Criminal offences Fraud Act 2006 to (the UK’s national Action Fraud Other statutory frauds reporting centre for fraud and cybercrime) by calling 0300 123 2040 or Common law offences using the online reporting tool. A police Reporting fraud Action Fraud crime reference number will be given. The Police Service of Northern Ireland In the following circumstances the Crimestoppers matter should be reported directly to Serious Fraud Office the PSNI by calling 101: if a fraud is being Other government agencies and regulators committed (or has occurred within 24 hours), the suspect is known and Investigating authorities The Police Service of Northern Ireland resides in Northern Ireland, the victim (main) Serious Fraud Office is perceived to be vulnerable, or money Prosecuting authorities Public Prosecution Service or evidence is at risk. Call 999 if you, or (main) Serious Fraud Office someone else, is in immediate danger or risk of harm. Sentencing
Depending upon the type of fraud, it Summary conviction Up to 6 months’ imprisonment or a maximum £5,000 fine may be possible to report to: or both • Crimestoppers (anonymous reporting) Conviction on indictment Up to 10 years’ imprisonment or an unlimited fine or both • DWP (benefit fraud) Prosecutions are heard in either the considered before, and take priority • Financial Conduct Authority Magistrates’ Court or the Crown Court. over, any confiscation and civil (investment scams or share fraud) or recovery orders. other sector regulators The SFO is a specialist prosecuting authority tackling the top level of serious • HMRC (VAT, tax or customs duties fraud) or complex fraud. INTERNATIONAL CONSIDERATIONS • Insurance Fraud Bureau (insurance In some circumstances, it may be fraud) possible for a private individual In many cases, the fraudster will have • local authorities or organisation to start a private committed their offences in oN rthern prosecution. Anyone contemplating Ireland from overseas, often through • NHS (health fraud) a private prosecution should seek the internet. This makes it more difficult, though not impossible, for the police • SFO (serious or complex fraud or professional legal advice from a or other law enforcement agencies in corruption) specialist solicitor or barrister. Northern Ireland to find and bring them • Trading Standards (rogue traders). PENALTIES AND COMPENSATION to justice in the UK. The assistance of agencies in the overseas country (or INVESTIGATING FRAUD Both the Magistrates’ and Crown Courts countries) concerned will often be have discretionary power to administer sought along with extradition to the UK Not every case reported to the police a range of penalties on conviction, where appropriate. or other agencies will be investigated including: or prosecuted. In some cases, a prosecution may • a custodial sentence; take place in the country where the Frauds committed in Northern Ireland • a financial penalty; as ellw as fraudster is based. Where the offence are usually investigated by the PSNI has taken place wholly outside the Economic Crime Unit. It works closely • other consequences such as an order jurisdiction of the courts of Northern with other law enforcement and partner to pay compensation. Ireland (for example, where a Northern agencies throughout the UK and Ireland. The maximum penalties following Irish victim has been defrauded while Serious and complex fraud may also conviction in the Crown Court living or on holiday abroad and parted be investigated by the Serious Fraud for the offences of fraud by false with money overseas) the investigation Office which can also prosecute. representation, fraud by abuse of and prosecution will be undertaken position and fraud by failure to disclose by the law enforcement agencies For UK-wide frauds, the English and information are a sentence of 10 years’ of the country involved and not in Welsh and/or Scottish authorities will imprisonment and/or an unlimited fine. Northern Ireland. have concurrent jurisdiction and it will In the Magistrates’ Court the maximum very much depend on the nature of the penalties are a term of imprisonment of FURTHER INFORMATION crime and the level of local involvement six months and/or a £5,000 maximum as to who leads the investigation. See the resources section of fine. our website. Fraud committed in the Republic of The Magistrates’ and Crown Courts can Ireland is usually investigated by the Notes also order a convicted person to pay Garda National Economic Crime 1 compensation to the victim for personal R v Barton & Booth (2020) EWCA Crim 575. . The ECU and the GNECB have Bureau injury, loss or damage resulting from the been known to assist each other in the criminal offence. investigation of all-island fraud. The government may use confiscation This helpsheet was kindly prepared by PROSECUTING FRAUD and civil recovery orders to seize the Jennifer Lee at Pinsent Masons LLP. proceeds of crime, but these funds do The main prosecuting authority is not become available as compensation the Public Prosecution Service. to victims. Compensation orders are
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