Criminal Law: Fraud | Setfords

Criminal Law: Fraud

Defendants charged with tax-related offences are often also charged with Fraud.

We are seeing a significant increase in the number of tax-related offences, fraud and money laundering prosecutions.

The Fraud Act 2006 creates a general offence of fraud and introduces three ways of committing it set out in Sections 2, 3 and 4. These are fraud by false representation (Section 2), fraud by failure to disclose information when there is a legal duty to do so (Section 3) and fraud by abuse of position (Section 4). In each case, the defendant’s conduct must be dishonest; his/her intention must be to make a gain; or cause a loss or the risk of a loss to another. It is not necessary that a gain or loss actually occurs.

Fraud by false representation requires (1) a false representation, (2) made dishonestly, (3) knowing that the representation was or might be untrue or misleading and (4) with intent to make a gain for himself or another, to cause loss to another or to expose another to risk of loss. The offence is entirely focused on the conduct of the defendant.

Fraud by failing to disclose information occurs where the defendant: (1) failed to disclose information to another person, (2) when he was under a legal duty to disclose that information and (3) dishonestly intending, by that failure, to make a gain or cause a loss.

Fraud by abuse of position occurs where the defendant: (1) occupies a position in which he was expected to safeguard, or not to act against, the financial interests of another person, (2) abused that position, (3) dishonestly and (4) intending by that abuse to make a gain/cause a loss. The abuse may consist of an omission rather than an act.

Other fraud offences include Possession of articles for use in fraud, Making or supplying articles for use in frauds, Participation by a sole trader in fraudulent business, Obtaining services dishonestly.

Section 18 of the Theft Act 1968 provides that company officers who are party to the commission of an offence by the company will be liable to be charged with the offence as well as the company.

The elements of the offences include:
False representation (any representation as to fact or law, including a representation as to the state of mind of the person making the representation or any other person. A representation may be express or implied. It can be stated in words or communicated by conduct. There is no limitation on the way in which the representation may be expressed. A representation can be made by omission, for example, by omitting to mention previous convictions or County Court Judgements on an application form. An offence may be completed when the defendant fails to correct a false impression after a change in circumstances from the original representation (if the representation may be regarded as a continuing series of representations).

Untrue or misleading (“false” if it is untrue or misleading and the person making it knows that it is, or might be, untrue or misleading. Actual knowledge that the representation might be untrue is required not awareness of a risk that it might be untrue.)

Dishonestly (the fact-finding tribunal must ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts and then determine whether his conduct was honest or dishonest by the (objective) standards of ordinary decent people. As such, there is no longer a requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.

Gain or loss (extends only to gain and loss in money or other property, whether temporary or permanent and means any property, whether real or personal including things in action and other intangible property). “Gain” includes a gain by keeping what one has, as well as a gain by getting what one does not have. “Loss” includes a loss by not getting what one might get as well as a loss by parting with what one has (Section 5 (4)).

Failure to disclose information (there is no requirement that the failure to disclose must relate to “material” or “relevant “information, nor is there any de minimis provision).

We act for many high-net-worth individuals who are currently the subject of HMRC investigations include fraud and money laundering. We have an enviable success rate representing clients charged with serious offences. Whether you are charged with tax-related offences, fraud, money laundering or Cash Seizures, restraint Orders and Confiscation Proceedings contact us for an initial free consultation.

Malcolm Simmons

Malcolm Simmons

Consultant Solicitor
Criminal Law

If you are looking for a proactive approach with clear, strategic advice for the successful conclusion of your case, contact us for a free consultation.

“One of the best criminal defence lawyers in London.”

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A solicitor at the cutting edge of serious and organised crime with significant experience defending complex criminal cases:

  • Murder
  • Manslaughter
  • Corporate Manslaughter
  • Drug
  • Firearms
  • Fraud
  • Bribery & Corruption
  • Money Laundering
  • Cash Seizures, restraint Orders and Confiscation Proceedings
  • Criminal Law

Former international judge who presided in many complex serious and organised crime cases including war crimes, murder, drug trafficking, weapons trafficking, people trafficking, corruption, fraud, money laundering and asset confiscation.

Advising several large law firms in London in serious and organised crime and complex litigation. Having served as an international judge for more than 13 years is able to give strategic advice on how to defend difficult cases.

Recognising that being accused of a serious criminal offence can be a worrying time. We will provide constructive, strategic and supportive advice throughout the process in order to achieve the best outcome.