The Law on Fraud in England and Wales was substantially modified and codified by the introduction of the Fraud Act 2006. This came into force on 15th January 2007. Various offences of deception under the Theft Acts of 1968 and 1978 were repealed and new offences introduced including
Fraud by false representation (Section 2)
Fraud by failing to disclose information (Section 3)
Fraud by Abuse of position (Section 4)
Possession of articles for use in fraud (Section 6)
Making or supplying articles for use in frauds (Section 7)
Participation by a sole trader in fraudulent business (Section 9)
Obtaining Services dishonestly (Section 11)
Liability of company officers for offences by company (Section 12)
The CPS Web site sets out the Elements of the Offences under the following link
False representation
Untrue or misleading
Dishonestly
Gain or loss
Failure to disclose information
Establishing a legal duty
Abuse of a position
Possession or control
Article
Services
Obtains for himself or another
Evidence of spouse/partner (Section 3)
Dishonesty
The most important of these elements is usually the issue of dishonesty. In 1982 the case of R v Ghosh [1982] 1QB 1053 sets out the definition of dishonesty requiring both an objective and subjective approach
Was what was done dishonest by the ordinary standards of reasonable and honest people (the person on the Clapham omnibus)? This is the objective test and if a jury decide that objectively the Defendant was dishonest they must then go on to consider whether this defendant must have realised that what he was doing was, by those standards, dishonest (the subjective test)
Most fraud trials turn on the issue of dishonesty. In the more complex cases, often charged as conspiracy to defraud, the prosecution, in the form of the CPS or other prosecuting authority such as the Serious Fraud Office or the Financial Conduct Authority or HMRC will attempt to show through documentation and witnesses so that a jury is sure that the defendant (s) were both objectively and subjectively dishonest.
The Decision to Charge
The defence of fraud cases only becomes an issue if the prosecution have sufficient evidence to establish a “case to answer” against a defendant. Fraud proceedings, like all criminal proceedings in England and Wales are (adversarial). This means that the prosecution bring the case and the onus is on them to prove their case to the criminal standard, often referred to as “beyond a reasonable doubt or so that the jury is sure”. The various prosecuting authorities have charging standards which require their lawyers to assess before a charge is brought whether the evidence establishes a better than 50% chance of conviction. As most prosecuting lawyers are competent at assessing such evidence and the law the scope for succeeding on a submission of no case to answer is more limited these days. However, it is still possible.
The Trial Process
The trial process involves the prosecution calling their evidence first and the defence lawyer cross-examining witnesses and making submissions to the Judge on any points of law in the absence of the jury. If there is no successful submission of no case to answer then the defence call their evidence. If the case does go to a jury then it is often their assessment of the honesty or dishonesty of the Defendant that decides the case. Factors such as the skill with which the prosecution witnesses are cross examined; which if any documentary defence evidence should be put to the jury, which witnesses of fact or character should be put before a jury, whether the defendant gives evidence or not and the skill with which he or she is cross examined by the prosecuting advocate all play a part in the eventual outcome. However, it will perhaps be no surprise that how a defendant gives evidence and responds to cross examination often has the most significant impact on the outcome. Defence lawyers cannot coach their clients or suggest defences to them. However it is our job to advise our clients on the strengths and weaknesses of their case and to assist them in conveying this to the court.
After all the evidence is heard the prosecuting barrister or advocate will give their closing speech followed by the defence barrister or advocate. The judge will sum up for the jury and may give them directions. The jury will then retire to consider their verdict. If convicted the task of sentencing rests with the Judge after hearing from the defence in “mitigation”. Sentences for fraud offences vary considerably depending on the particular circumstances and the role of the defendant. The defence lawyer's role is also to advise as to whether any sentence was excessive and whether there are any points of law that should be appealed. There is also the issue of confiscation of assets following a conviction and the draconian impact this can have on defendants and their families.
Defence lawyers are often asked the “after dinner question” by those not familiar with the criminal process “How can you represent someone who you know is guilty”. The answer to this is that if our client tells us he/she is guilty and wishes to give evidence to say he/she is not guilty we cannot represent them. The first point to make is that the proceedings are adversarial and if there is no case to answer or insufficient evidence to form a case against our client he/she does not have to respond. However if there is a case to answer and our client maintains their innocence to us our opinion is irrelevant and we must represent them to the best of our ability. Whilst a defence lawyer should always advise on the strengths or weaknesses of the prosecution and defence case if the lawyer starts imposing his or her views of the client and refusing to act because the lawyer believes his or her client is guilty this subverts the adversarial process and the rule of law. Defendants against whom there is a considerable body of evidence but who are nevertheless not guilty may have difficulty finding a lawyer to represent them. Our primary duty is to uphold the rule of law and act in our client's best interests.
Anyone facing investigation for fraud (i.e. before charge) should contact a specialist fraud defence lawyer as soon as possible and certainly before answering any questions in an interview under caution with the police. In view of the “adversarial” nature of fraud proceedings it may be the case that even if you wish to maintain your innocence you may be better advised making no comment on any such interview. What happens at this stage is not only crucial as to what might happen at trial but more importantly whether you are charged in the first place. At Bankside Law we have an excellent track record of avoiding charge for our clients facing serious and complex fraud allegations.
If you wish to contact any of our specialist Fraud Lawyers call or email John Williams on 0207 407 2356 EM This email address is being protected from spambots. You need JavaScript enabled to view it. or Bill Wilson on 0207 407 2356 EM This email address is being protected from spambots. You need JavaScript enabled to view it..
Links
The Benefits of Early Representation
Will Code of Conduct Changes lead to greater pre interview disclosure?
The Fraud Act 2006
CPS guidance on Fraud Act 2006
Defence of Fraud Case concludes in Civil Settlement rather than Criminal Charges