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If you have been charged with fraud, it may give you some assurance to know you are not alone. The UK has recently been adorned with the unenviable title of scam capital of the world. The combination of its fast payment structure, the lack of police focus on fraud, plus the fact that English is widely spoken globally have made it an appealing forum for scamsters across the world. By all accounts, fraud is only becoming more commonplace in the UK. £754 million was stolen in the first six months of 2021, a 30% increase from the previous year. Global data breaches have provided rich fodder for scamsters seeking to obtain individuals’ personal details. Indeed, fraud is now at such a high level in the UK that it poses a ‘national security threat’.
Whilst law enforcement against fraud in the UK is notoriously weak, if you are convicted of fraud, you could nonetheless face a substantial prison sentence. As such, if you find yourself facing a fraud charge, make sure that you are equipped with a thorough understanding of the law and a strong criminal defence team. This article explains the law around fraud, the sentence you could receive if you are convicted, and the defences that you may be able to rely upon.
Bank fraud is usually committed by making false representations contrary to Section 2 of the Fraud Act 2006. Fraud by false representation is where someone makes an untrue or misleading statement with the intention of causing a gain for themselves or another, or a loss for someone else. For example, if you pretend to be from someone’s bank or another financial organisation, that would be making a false representation. You would also be making a false representation if you pretend to be a legitimate customer of the bank, whilst assuming a false identity.
A false representation can occur in person or verbally. That said, these days, much banking fraud mostly takes place online. A false representation could be an email, a pop-up advert on social media that you click through to take you to another website, an SMS, or a fake app notification. In order for an action to constitute fraud, you must be found by the court to have been acting dishonestly. The test for dishonesty is objective, which means that the court will consider whether an average, honest person, knowing what you did at the time, would have perceived your actions to be dishonest.
This means that if you were unwittingly involved in a scam – for example, you forwarded a WhatsApp link to someone not realising it contained a link to a fraudulent website – then you would not be guilty of fraud yourself. If this sounds like you, you may have a defence available to you at court. If you find yourself under suspicion by the police and you are not sure if you have committed a crime, contact a criminal defence solicitor for advice.
Increasingly, fraudsters are using cryptocurrency platforms to clean fraudulently obtained money and to remove it permanently from the victim’s possession. The process of converting illicitly obtained cash so that it appears to come from a reputable source constitutes the offence of money laundering. Because these two activities go hand in hand in some ways, it is common for suspects to be charged with both bank fraud and money laundering.
The following are real examples of bank fraud that have taken place in the UK recently:
The maximum sentence for fraud on indictment (i.e. if your case is heard in the Crown Court) is a 10 year custodial sentence. However, such a hefty sentence is usually reserved for high value frauds where you played a leading role in organising the events. The sentence that you would receive if convicted of fraud is based on two factors:
For fraud valued above £500,000, you will almost certainly receive a custodial sentence. The length of the sentence would be between 18 months and 8 years’ custody. For fraud between £100,000 and £500,000, or where there was a risk of fraud above the value of £500,000, the length of the sentence would be between 26 weeks’ and 6 years’ custody. Where the fraud is valued under £100,000 you would not necessarily face a prison sentence; while you could receive a sentence of up to 3 years’ custody, you may instead receive a fine or a community level order.
Your role in the perpetration of the fraud will determine where within this sentence range your sentence falls. A higher sentence would be given to an offender who played a leading role in a gang, who coerced or pressured others to participate in the offence, who targeted a large number of victims, or who deliberately targeted vulnerable victims. Offenders who acted opportunistically, only offended once, or were pressured by others to commit the fraud would face a lighter sentence. For more detailed information, see the Sentencing Council’s guide on fraud.
One common defence to the charge of fraud is that you were not acting dishonestly. For example, you may be able to argue that you believed that the organisation that you were working for was legitimate, or that you had been deceived by someone else into participating in the fraud.
There are also general defences in law which, depending on the circumstances, you may be able to rely upon. These include:
Duress – This is where you were coerced or forced by someone to commit the offence and you feared for your life or someone else’s life if you did not comply. Depending on the circumstances, if you can prove that you were pressured by another person, it could act as a complete defence or it could otherwise reduce the sentence that you are given.
Insanity – This is where you can prove you were suffering from a recognised mental illness at the time of the offence that interfered with your mental functioning to the extent that you lacked the capacity to reason and therefore did not intend to commit the offence.
Intoxication – This is where you were under the influence of drugs or alcohol and did not intend to commit the offence. This defence does not usually apply where you have voluntarily consumed drugs or alcohol (i.e. it would only really apply if your drink were spiked, for example).
Mistake – This is where you were mistaken as to certain circumstances regarding the offence, and you would not have done it if you had known otherwise. In the case of fraud, this is similar to pleading a lack of dishonesty.
Self-defence – This could apply where you committed the offence in order to protect yourself or someone else, or your property or property belonging to someone else. It is unlikely to apply in the case of fraud, because in order to be accepted by the court, acts of self-defence must usually happen within the moment, whereas the complex nature of fraud means that it is usually premeditated (well thought out beforehand).
Being accused of a serious offence such as fraud is a stressful experience. Having the right criminal defence solicitor can help ease the burden. At Stuart Miller Solicitors, our criminal defence team are white collar crime experts. We will help you to navigate the complexities of your case and, if you intend to plead not guilty, we will assist you in mounting the best possible defence. If you are convicted, we can also help you prepare arguments to minimise the sentence that you are given. Review our website for more information on our services, and contact us for a no obligation consultation today.