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The act of fraud by abuse of position can take place in several ways. For example, it might be taking advantage of employees, gaining financially by manipulation of the accounts or accessing monies through other channels that you have access to by way of your role as a company director.
The National Crime Agency state that there are billions of pounds of damage to the UK economy every year through fraud. It’s the most common crime in the UK and can affect individuals on a personal level who can suffer unaffordable loss. Businesses can struggle to stay afloat as a result of this crime.
Those who are facing allegations of fraud by abuse of position are likely to be worried about being imprisoned. There will be concerns about how they will provide for their dependents and how will it affect their familial bonds and relationships.
To help you to understand what the outcome might be as a result of being convicted fraud by abuse of position, we’ve detailed the sentencing guidelines below. Please note that a knowledgeable and capable solicitor may be able to avoid a prison sentence or get it significantly reduced.
What type of actions are considered fraud by abuse of position?
Many different scenarios can take place when it comes to committing fraud by abuse of position offences.
You are abusing workers in the labour force – for instance, failing to compensate workers on the agreed schedule or giving reasons why it’s not possible to pay them their full wage. The funds in question could even be redirected to your bank account.
Using your position for financial gain – for example, using your IT skills and administrative access, you manipulate the accounting system to make regular illegal payments into an account with your name.
Fraud by abuse is not a crime that can only be committed purposefully. It can also be committed by those who fail to act with regards to safeguarding the interests of others.
What is the average sentence for fraud by abuse of position offences?
A conviction of fraud by abuse of position can mean as much as a ten-year prison sentence plus fines and potentially the application of ancillary orders.
What are some of the mitigating factors that might reduce the fraud by abuse of position sentence?
When sentencing for fraud by abuse of position, your case will be investigated thoroughly by the police and other regulatory agents.
It will be looked at for whether you have taken part in a group activity or to see if you were forced into it. If you’ve used a false identity, or you have used the identity of others to access more funds, this will be considered to decide your sentence.
Certain aspects of a case are known as the mitigating aspects which can influence the sentence that a judge gives. One of the factors judges consider in every case of this nature is the defendant’s level of genuine remorse.
The following are some of the other factors considered when the court decides which sentence to give. They will look at:
- Any previous conviction
- Your level of remorse
- Your level of cooperation with the investigation
- Whether the activity you took part in was originally legitimate
- Your reputation / good character
- Whether you have any serious medical conditions that require long term, urgent or intensive treatment
- Whether you have a learning disability or a mental disorder
- Whether you are the sole or primary carer for related dependents
Is it possible to reduce a sentence for fraud by abuse of position with a guilty plea?
In recent years, several 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 the 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 per cent 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 fraud by abuse of position offence?
Ancillary Orders
A court can also make ancillary orders on a defendant if they are found guilty and convicted of a fraud by abuse of position offence. These are extra elements of punishment that can be added to a sentence and include additional restrictions or requirements that can affect a dependent’s finances, your property or business or financial activity.
Ancillary orders that are typically added to the penalty for those who are found to be guilty of fraud by abuse of position include:
- Compensation for loss
- Restraint orders
- Reparation orders
- Financial reporting order
- Disqualification from directing a company
- Confiscation orders
As part of your investigation, you may also have your assets frozen with the possibility of having cash or other assets seized.
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 done 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.
Can sentences 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 by abuse of position, 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 |
How Can Stuart Miller Solicitors Help?
The duty of prosecutors is to prove your intention of fraud by abuse of position.
Any good solicitor will work hard at crafting a defence for you. They will explore what the individual circumstances are of your case and will go all out to protect you on the front foo.
If your bank accounts have been restricted with Restraint Orders or Freezing Orders, we will act promptly to defend your position and remove the encumbrances which could signal the demise of your business. Rest assured we have access to the best Barristers and QCs, forensic accountants, scientific analysts and a huge range of business-related experts who can be called upon to work with us.
Our fraud by abuse of position solicitors will advise on the potential impact on your family members, employees or acquaintances. If money was transferred to any other person, absent credible commercial reasons, our Fraud Solicitors will be able to advise on any Money Laundering implications and those affecting your standing with HMRC and Tax Evasion issues.
Our Fraud Solicitors can help
When you are involved in a case of this nature, fraud solicitors must examine the background of the case. The legal team will build a strong defence that you can use during the trial.
It will mean looking through your business transactions, bank records and receipts.
Selling the client well to the jury will make all the difference between a lenient sentence and one that is heavy-handed. The jury who likes a client will typically be easy on them. They may believe the client to be naïve rather than dishonest.
Arrest & Interview
The police are likely to seize all your electronic devices at the outset of an investigation of this nature for analysis purposes. We know how embarrassing it can be to have your privacy intruded in this manner. They may take weeks or even months to return them.
In this day and age where people rely heavily upon technology, you will feel at a loss without them. Not only can our team prepare you for what can be a lengthy and gruelling process, once the investigation is underway, but we can also put pressure on the police to conclude their investigation as quickly as possible. Our fraud solicitors provide representation throughout police interviews and at all stages of the Court process.
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.
In addition to giving you a free consultation, we can also represent you at the police station if you’ve been arrested. We can look at securing your legal aid.
Please Contact Us and ask to speak to our fraud by abuse of position lawyers and fraud solicitors to arrange a meeting in person, online or by telephone. If you prefer, you can WhatsApp us from the link you will find at the bottom banner if you open this page on your mobile phone device.
Get in touch with us now for fraud by abuse of position legal help.
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