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Fraud Offences Articles

What Happens for a First Offence of Fraud By Abuse of Position?

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If you or someone close to you faces a first fraud by abuse of position charge, feeling anxious and eager to begin building your defence is understandable. Fraud by abuse of position is a serious offence and engaging an expert fraud defence solicitor quickly can critically impact your case. This article explains the offence, provides some relatable examples, discusses sentencing of first-timers, and analyses imprisonment risks. We also outline how to get in touch with our team for robust legal assistance, should your case proceed.

What is the offence of fraud by abuse of position?

Fraud by abuse of position is an offence under the Fraud Act 2006. It is one of the core ways that fraud can be committed under the Act.

Under Section 4 of the Fraud Act 2006, a person is in breach of this provision if they occupy a position where they are expected to safeguard, or not act against, the financial interests of another person, dishonestly abuses that position, and intends, by doing so, to make a gain for themselves or another, or to cause loss to another or to expose another to a risk of loss.

For a prosecution to secure a conviction for fraud by abuse of position, the following elements must be proven:

  • Abuse of position – the defendant must have occupied a position where they were expected to safeguard, or not act against, the financial interests of another person and abused that position.
  • Dishonesty – the defendant’s conduct must have been dishonest by the standards of reasonable and honest people.
  • Intent to make a gain or cause loss – the defendant must have intended to make a gain for themselves or another, or to cause loss to another or to expose another to a risk of loss through their abuse of position.

The offence can lead to substantial penalties like imprisonment and fines depending on the circumstances of the case. It can be tried in either the Magistrates’ Court or the Crown Court. The exact punishment corresponds to factors like the scale of the fraud and the context surrounding it.

What are some examples of fraud by abuse of position?

Examples of this offence include:

  • Company directors misusing their position to syphon money into their own accounts.
  • Employees stealing company funds or inventory and falsifying records to cover it up.
  • Lawyers misappropriating funds from client trust accounts.
  • Doctors billing public or private insurers for procedures that never took place.
  • Government officials taking bribes to award contracts or grant licences outside proper procedures.
  • Executors of wills transferring estate assets into their own names instead of rightful beneficiaries.
  • Accountants falsifying financial statements for personal gain or to benefit certain clients.
  • Investment advisors using their position to manipulate share prices through insider knowledge.
  • Guardians abusing their position over vulnerable adults to defraud them of assets.
  • Police officers misusing databases to steal identities or sell people’s private information.
  • Supermarket managers abusing payroll systems to pocket wages of imaginary employees.
  • Nannies misusing credit cards entrusted to them for childcare expenses.

What happens if you are suspected of committing fraud by abuse of position in the UK?

If you are suspected of fraud by abuse of position in the UK, you will likely face investigation and potential prosecution under the Fraud Act 2006.

Here’s a general outline of what could happen:

  • Initial investigation – if fraud is suspected, the police or relevant regulatory body will start an investigation. This may involve gathering evidence like financial records, documentation, and witness testimonies. You may be interviewed under caution, where anything said could be used as evidence later. Having a solicitor present is advisable.
  • Arrest or voluntary interview – you could be arrested or asked to voluntarily attend an interview at a police station. Even if voluntary, this is serious and may result in charges. Legal representation is recommended.
  • Charging decision – after investigating, authorities will consult the Crown Prosecution Service (CPS) on whether to charge you. They will consider if there is sufficient evidence and if it is in the public interest.
  • Court process – if charged, your case may be tried in the Magistrates’ Court or Crown Court before a jury.
  • Sentencing – if convicted, the court will consider various factors when deciding your sentence. While maximum penalties depend on the offence, non-custodial sentences are possible for first offences depending on circumstances. Potential options include fines, community service, or suspended sentences.

Getting legal advice at the earliest opportunity is vital in these circumstances.

What is the sentence for fraud by abuse of position in the UK?

Fraud by abuse of position is prosecuted under the Fraud Act 2006 and carries a maximum sentence of 10 years’ imprisonment. Because the offence involves abusing one’s position of trust to dishonestly make a gain or cause loss, the courts want to ensure that any punishment given reflects the severity of the betrayal committed to discourage the offenders and others from doing the same thing again.

Aggravating factors like large scale fraud, sophisticated schemes, targeting vulnerable victims, or previous convictions can increase the sentence given. Mitigating factors, on the other hand, may reduce the sentence; these include early guilty pleas, showing remorse, or making amends. Additional penalties can include confiscation of criminal assets under the Proceeds of Crime Act 2002.

Professional regulators like the Solicitors Regulation Authority or Financial Conduct Authority may also pursue disciplinary sanctions like fines, bans, or stripping professional qualifications if the offender belongs to a regulated profession.

Are there any defences to fraud by abuse of position?

There are several potential defences that can be raised in response to allegations of fraud by abuse of position:

  • Lack of intent – the prosecution must prove that you had dishonest intent. If you can demonstrate that you had an honest belief or made a mistake and lacked the intention to deceive through the abuse of your position, this could provide a defence.
  • Absence of abuse – if you can show that your actions were not an abuse of your position but rather within the scope of your legitimate authority or duties, this may serve as a defence. It is, however, very important to establish that your actions were reasonable and aligned with your role.
  • Lack of knowledge – if you can demonstrate that you were unaware that your actions constituted fraud or abuse of your position, this may provide a defence. In these cases, it is crucial to establish that you had no knowledge or understanding of the fraudulent nature of your behaviour.
  • Procedural errors – if there were procedural errors in the investigation or in bringing the charges, it may be possible to have the case dismissed on procedural grounds. This defence focuses on any irregularities or violations of proper procedures that may have compromised the fairness of the investigation or prosecution.
  • Insufficient evidence – any competent defence lawyer will scrutinise the strength of the prosecution’s evidence, looking for inconsistencies, unreliable witnesses, or gaps in the evidence chain.
  • Coercion or duress – if you can demonstrate that you were coerced or under duress to commit fraud by abusing your position, this may serve as a defence. The coercion must have been immediate or imminent and you must not have had any reasonable alternative.

Remember that fraud by abuse of position is a serious offence that breaches the trust placed in individuals in positions of authority. As such, courts treat defences with some hesitancy and so having an expert solicitor on side is extremely important.

Will I go to prison if it is my first time committing fraud by abuse of position?

Predicting whether a first time fraud by abuse of position offence could result in imprisonment is difficult, as numerous factors are considered during sentencing. The scale of abuse and damage caused are key considerations – extensive betrayals of trust are viewed extremely harshly. Harm to public confidence in institutions will also be weighed, with severe reputational damage increasing chances of custody.

Mitigating factors like previous good character, remorse, cooperation and attempting restitution may assist first-time offenders in arguing against incarceration. That said, aggravating factors like acting out of greed, covering up misconduct, or exploiting a sensitive role point towards harsher punishment.

While minor technical breaches may warrant suspended sentences, judges are very reluctant to suspend sentences for serious abuses of power given the gravity. Those facing prosecution should obtain expert legal advice on realistic prospects of imprisonment based on precedents for comparable cases. An experienced fraud defence lawyer can present mitigation arguments to potentially avoid a custodial sentence.

Where to get further help

If you or someone close to you is facing prosecution for fraud by abuse of position, expert legal advice early on is critical to understanding your next best steps and longer term options. For those with clean records, charges can sometimes even be avoided altogether through skilled negotiation. Contact the fraud team at Stuart Miller Solicitors today for a free case assessment.

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