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What type of actions are considered identity fraud?
Some of our clients face false accusations whereas others have taken an action that has put them into trouble with the law. Perhaps they have taken advantage of a moment in time when they could be opportunistic. Acts that could be considered identity fraud include stealing a document that belongs to somebody else, hacking into accounts or capturing a password or personal information.
In some cases, identity theft is facilitated by a computer. There are three offences contained in the Computer Misuse Acts 1990, these are:
Unauthorised access to computer data – in some cases, our clients have been unwittingly caught up in an investigation without realising that their actions are unlawful.
Unauthorised access to accounts with intent to commit or facilitate the commission of further offences – our legal team have the technical, legal and strategic experience to guide you every step of the way through your identity theft investigation.
Unauthorised acts with intent to access private information to impersonate another person in order to access funds – some identity fraud and identity theft crimes may take place outside of the UK, and there may even be extradition involved in your case.
Read more information about the offence of Identity fraud
What is the sentence for identity fraud?
Charged under the Fraud Act, an offence of this nature would range from a maximum of 10-year imprisonment for making or supplying articles and 5 years for possessing articles. Receiving maximum sentences is rare.
For the less sophisticated operation, sentences of anywhere between 6 months and 2 years is typically given. For a planned identity fraud that is skilfully put together, penalties may be between 2- and 7-years imprisonment.
When it comes to possessing articles for use in a fraud offence, sentences can range from community-based penalties to 12 to 18 months for the more complex frauds.
How does a court decide on the seriousness of the identity fraud offence for sentencing purposes?
The court will consider what harm has been caused by the offence when deciding which sentence to give. They will look at:
- How well planned or opportunistic is the crime?
- Was there a ‘professional’ operation for the fraud?
- Over what length of time was the fraud carried out?
- What was the motivation behind the crime?
- How much money or property was involved?
- Whether a position of trust was bestowed to the offender (such as being an employee)
- How many people were involved in either planning or carrying out the offence?
- The impact the fraud has on victor or victims
- The risk of physical harm to others (such as setting a home on fire to claim insurance)
- What damage or loss was planned for as opposed to the outcome?
- Was the defendant entitled to any of what was gained?
- Any attempt to disclose or conceal evidence
- The level of vulnerability of the victim and whether they were specifically targeted
- Whether there has been fraudulent use of identity
The fraud sentencing guidelines specify that fraud can cause considerable harm to victims, society and the economy that goes beyond the immediate impact of the offence. For example, there might be a loss in market confidence in and the closure of businesses.
In some cases, fraud can be used to siphon funds to organised crime and terrorist groups. Vulnerable people might be influenced to take drugs or traffic people.
Fraud is also often used to fund serious organised crime that may target vulnerable people, such as in the case of drug supply and people trafficking.
The following is a section taken from the sentencing guidelines used by judges to decide on penalties for fraud offences.
Culpability demonstrated by one or more of the following
A – High culpability
- A leading role where offending is part of a group activity
- Involvement of others through pressure, influence
- Abuse of position of power or trust or responsibility
- Sophisticated nature of offence/significant planning
- Fraudulent activity conducted over a sustained period of time
- A large number of victims
- Deliberately targeting the victim on the basis of vulnerability
B – Medium culpability
- A significant role where offending is part of a group activity
- Other cases that fall between categories A or C because:
- Factors are present in A and C which balance each other out and/or
- The offender’s culpability falls between the factors as described in A and C
C – Lesser culpability
- Involved through coercion, intimidation or exploitation
- Not motivated by personal gain
- Peripheral role in organised fraud
- Opportunistic ‘one-off’ offence; very little or no planning
- Limited awareness or understanding of the extent of fraudulent activity
Where there are characteristics present which fall under different levels of culpability, the court should balance these characteristics to reach a fair assessment of the offender’s culpability.
What are some of the mitigating factors that might reduce an identity fraud sentence?
Certain aspects of a case are known as the mitigating aspects which can influence the sentence that a judge gives. In fraud cases, they can include:
- Whether the defendant is disabled or mentally ill
- How old they are, i.e. if they are particularly young their age may affect their level of responsibility
- What role the convicted played in the offence – i.e. if it was particularly minor
- Whether the crime was fraudulent from the beginning or not
- Whether the defendant can demonstrate that they received incorrect advice from a third party that contributed to there being a fraud
- There is evidence that the person stopped offending before being caught
- Whether the offender has admitted the crime and cooperated with the authorities
- Whether the money has been returned voluntarily
- In the situation of there being extreme financial pressure on the defendant that was not deserved before the offence took place
Is it possible to reduce a sentence for identity fraud with a guilty plea?
In recent years, a number of changes have been made to the sentencing system in the UK to save the court time and cost and to protect witnesses from the stress of needlessly going through a trial. For offenders aged 18 and over, pleading guilty early on in a case can reduce a sentence by as much as one third (maximum). The later the plea is entered, the smaller the reduction.
- ‘Early on’ refers to ‘the first stage of the proceedings’ and means anytime up to and including the first hearing at the Magistrates Court or Crown Court for indictable offences.
- If a plea is entered 14 days after the first hearing, for example, the maximum level of reduction is just 20% or one fifth of the sentence. For indictable offences, the limit for a guilty plea to be made is within 28 days after the prosecutor has stated compliance with section 3 of CPIA 1996 and serving disclosure; although the decision is ultimately in the hands of the Judge who has discretion to apply whatever credit is deemed appropriate.
- After these times there is a sliding scale of credit applied. This goes down to one tenth on the first day of the trial and to zero if entered during the course of the trial. In theory, the ten percent could be given if the plea is issued after the opening speeches on the first day, but prior to any witness evidence being heard.
- If the accused does not want to plead guilty, then it’s important for the solicitor to regularly inform the court throughout the trial of the reasons why the client’s plea is not guilty.
What are some of the other consequences of an identity fraud offence?
Ancillary Orders
A court can also make ancillary orders on a defendant if they are found guilty and convicted of an identity fraud offence. These are extra elements that can be added to a sentence and include additional restrictions or requirements that affect a dependent’s finances, property or activity. For instance, if a company director has abused their position which resulted in a fraud crime, they can be banned from trading a particular business for up to 5 years or be required to make full financial reports for all their financial transactions for up to 15 years.
Ancillary orders include the following:
Compensation Order
The court may enforce that a compensation order is applied in favour of a victim if they have suffered a personal injury or a financial loss. Compensation may include a community order, a fine or a prison sentence and be a stand-alone sentence or combined with another punishment.
Confiscation Order
When the defendant is viewed by the court as having benefited financially from the offence, the court may decide to enforce a confiscation order to reclaim any finances gained from the crime.
Deprivation order
A deprivation order includes depriving the defendant access to computers that can be used for IT-based frauds or to manipulate payment cards such as credit cards.
Restitution order
A restitution order is when the court orders that stolen goods are restored or returned to the victim. It may also involve money or assets of the value stolen being transferred to the victim.
Disqualification from acting as a company director
When a company director is convicted of an offence related to the operation of a business, the court can decide to ban the person from acting as a company director for between 5 years and 15 years.
Financial reporting order
If the court believes that the defendant is likely to be involved in future offences, they may decide to enforce the defendant to report their financial affairs on a regular basis. A financial reporting order can last for up to 15 years.
Serious crime prevention order
This is the most stringent order to be given by a court and can influence several different aspects of the life of the convicted person. It may include
- Whether they can work with certain individuals
- Applying particular business methods
- Working in particular businesses
- Using types of items
- Access to premises
- Travel – both international and national
The convicted person may also be enforced to disclose personal and business information on demand for a period.
In addition, the court may demand payment of the following if the accused is convicted:
Payment of costs applied for by the prosecutors
Although the police meet some of the costs involved in the prosecution, the costs of investigation are typically sought from the convicted. These may include the costs of:
- The work undertaken in obtaining sufficient evidence for prosecution either at the initial stage or later at the request of Crown Prosecution Service (CPS)
- Seeking medical or expert evidence as part of the investigation, (where a witness is required to attend Court, the cost of the attendance falls on the CPS).
- Re-interviewing witnesses
- The entire costs of the prosecutor, including fees for the use of external Barristers used by the CPS, can be recovered from the defendant, subject to means. At the end of the case, the prosecutor under The Prosecution of Offences Act 1985 will request the Judge to order a sum to be paid for the costs incurred by the prosecutor in bringing the prosecution.
Victims surcharges
The term victims’ surcharges can be explained as paying compensation to a fund for victims and can range between £20 to £170 depending on what sentence you were given at conviction.
How sentences can be added to national information databases
There are several national databases that hold information about individuals and any allegations made about them, their criminal and court records. These include the DBS (Disclosure and Barring Service) which was previously known as the CRB (Criminal Record Bureau) and the Police National Computer (PNC). Depending on what happened, whether the accused is convicted and what sentence was issued, the accused may be added to one or all these databases. Their purpose is to provide information to potential employers and to regulate the ability to take part in certain activities.
If your case progresses to court and you are convicted of fraud offences, your conviction will be noted on your CRB / police record. The period of the endorsement will depend on the nature and length of your sentence.
Below are details on how long you will be listed as holding a criminal record if convicted. This is something very serious to consider when it comes to future employment. The term ‘spent’ refers to when your name can be removed from the databases.
| Rehabilitation Period (the time it takes for the sentence to become ‘spent’) |
||
| Sentence | Adult (aged 18+) at time of conviction | Young person (aged under 18) at time of conviction |
| Prison sentences of more than 4 years | Sentence is never spent | Sentence is never spent |
| Prison sentences of more than 2.5 years (30 months) but less than 4 years | Sentence length 7 years | Sentence length 3.5 years |
| Prison sentences of more than 6 months but less than 2.5 years (30 months) | Sentence length +4 years | Sentence length +2 years |
| Prison sentences of less than 6 months | Sentence length + 2 years | Sentence length +18 months |
| Conditional Discharge | Length of order | Length of order |
| Absolute Discharge | None | None |
| Conditional Caution | 3 months | 3 months |
| Simple Caution / Youth Caution | None – immediately ‘spent’ | None – immediately ‘spent’ |
| Other Including Compensation Order, Supervision Order, Bind Over, Hospital Order | Length of the order / once compensation is paid | Length of the order / once compensation is paid |
Fraud and the Sentencing Guidelines Council
In response to the 2009 Fraud Act, the Sentencing Guidelines Council have laid out clear sentence guidelines for adult fraud offenders sentenced by courts. Dividing fraud offences into five categories helps judges to decide on sentencing. As with all sentencing guidelines, there is levelling as to the seriousness involved.
- Confidence fraud
- Possessing, making or supplying articles for use in fraud
- Banking, insurance and credit fraud
- Benefit fraud
- Revenue fraud
Being accused of fraud can have disastrous consequences for you, your family and your business. It’s crucial that you hire Fraud Solicitors who fully understand the implications and will do everything possible to chase the best possible solutions and best achievable results for you.
How can Stuart Miller Solicitors help?
As one of the biggest and well-known law firms in the UK, we handle identity fraud cases regularly and have deep expertise in this field. In addition to supporting you throughout the trial, we will inform you of the best course of action to take to mitigate the outcome.
Most clients who seek the advice of our expert identity fraud solicitors fail to understand that it is the prosecution who ‘must prove the case’ to convict you. It is for the prosecution to prove, so that the Jury is no less than sure, beyond any reasonable doubt in their mind, that you were in an Agreement with the others (Conspiracy) and that you were intentionally dishonest in making or trying to make money or causing someone loss.
If you or somebody you know is currently under investigation for identity fraud, you may not only have the police pursuing you, but you could also have other regulators and prosecutors after you. It might be that you or your business is under investigation and you need the support and specialist legal advice of fraud solicitors.
In addition to a competent solicitor spending time with the defendant, collecting character references and medical information can be what transforms the outcome of a fraud trial for the better. The sentence is likely to be reduced and, in some cases, the case dismissed before it reaches the court.
What will happen when I instruct an identity fraud lawyer?
If you are facing an allegation of identity fraud, regardless of the seriousness of the accusations being made, it is vitally important that you contact us and arrange to meet with a specialist identity theft solicitor. Your allocated team will be at the forefront of the Cybercrime defence world and you will be supported in achieving your objectives every step of the way.
We will study the allegations and identify legal, factual and technological defects in the case. We will obtain your instructions and absorb your knowledge of identity fraud, where it exceeds ours. We will work with you to ensure that unlawfully obtained evidence or evidence which is not free of ambiguity is never used to prosecute you.
We will engage with forensic computer and networking experts to challenge the prosecution’s allegations and present the findings in a way that the jury will not only understand but also believe.
Would you like to discuss your case before instructing us?
If you’d like to have a no-obligation chat with us before you instruct us to take your case, then call us today.
Please contact our identity fraud solicitors to arrange your meeting, whether face to face, online or by telephone. If you prefer, you can also send us a WhatsApp message using the link in the bottom banner if you are viewing this page on a mobile phone device.
Get in touch with us now for identity fraud offences legal help.
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