Fraud is a criminal offence and taken seriously by UK Courts. Fraud may be committed in several ways, the most common of which is false representation. Most people accused of this offence do not have a criminal background and may be shocked to learn that their conduct is considered unlawful and that they are under investigation. A false representation investigation can be worrying and lengthy, and good legal advice will be vital.
What is fraud by false representation?
Section 2 of the Fraud Act 2006 describes the offence of fraud by false representation as having certain elements, each of which must be proven by the prosecution if someone is to be found guilty of this crime. These are:
- making a false representation
- dishonestly
- with the intention of
- making a gain for themselves or another, or
- causing loss to another or exposing them to risk of loss
The law defines representation as any statement of fact or law. It may be express or implied and can be verbal, written on paper or electronically, etc. It is considered “false” if it is untrue or misleading and the person who made it knew that it may have been either untrue or misleading.
Some examples
There are many varied examples of fraud by false representation, including:
- using a stolen credit card in person or using someone else’s credit card details online
- trying to cash a cheque that is not yours
- selling, or attempting to sell, an item which you do not own
- using a card in someone else’s name to gain access to a private club or sporting venue
- stating that a car, or other item, is in good working order when you know there is a significant issue with it
- knowingly exceeding your credit card limit
- collecting State benefits that you are not entitled to
- exaggerating your income on a mortgage form
- claiming for costs that were never incurred
What are the penalties?
The offence is known as an “either way offence”, which means the case can be heard in the Magistrate’s Court or the Crown Court depending on whether it is considered a minor or more serious offence.
The Sentencing Council has published different guidelines on sentencing depending on where the case is heard. The maximum sentence is 10 years prison. You may alternatively receive a hefty fine or in some cases both a fine and imprisonment. The sentence may depend on your role in carrying out the offence, if it is a group activity, for example, corporate decisions.
How long the offence stays on your criminal record depends on the type and length of your sentence.
The investigation process
Like all criminal cases, the verdict will rely on the evidence. Fraud investigations can continue for months or even years and you may not have realised you were under investigation until you are contacted by the police and asked to attend an interview. If you have been identified in an investigation or accused of fraud by false representation it is a good idea to get legal representation before the police interview you about the act or omission and your conduct. The police will want you to incriminate yourself. They will spend time gathering evidence including business and financial documents, possibly videos, photos, and other personal belongings such as a mobile phone or computer and consider this alongside the answers to their questions. Your assets may be frozen.
If the police consider there is enough evidence to prove you deliberately acted dishonestly, they will lay charges and pass the case to the courts and the Crown Prosecution Service will take over. You will then receive a date for a court hearing.
Defences to the offence
All elements of the offence must be proved beyond reasonable doubt by the prosecution in order for a jury to find a person guilty of fraud by false representation. This means that a successful defence of any aspect will be enough to disprove the charge. For example, even though the statements you made are untrue, if you made them by mistake rather than dishonestly, this will be a sufficient defence and you will not be found guilty.
The most common defence to fraud is the absence of dishonesty but most defences are fact specific and involve complex law and you will need a specialised criminal lawyer to advise which defences will be available in your circumstances. A successful defence may result in a full acquittal or a reduced sentence.
Conclusion
In the past few years, the ways in which fraud is committed has evolved as more people and companies conduct business online. Fraud by false representation is a serious criminal offence, however, many people accused of this offence may not have a criminal background and be shocked to find themselves under investigation. This can be highly stressful, however, there may be defences available, and we strongly recommend retaining an experienced lawyer if you are facing such allegations.
This information is for general purposes only. If you or someone you know wants more information or needs help or advice, please contact us on 020 3189 0087 or email [email protected].
