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Conspiracy to Defraud and Conspiracy to Commit Fraud
If you have been asked to attend for an interview, arrested or charged with either of the above offences you will need legal advice, assistance and representation urgently. The earlier this can be obtained, the less likely things can be said or done by you that will impact on your case later in the proceedings.
At JMW Solicitors LLP we have an exceptional team that offers businesses and individuals comprehensive, specialist representation and have been doing so for over 30 years.
What does it mean and what’s the difference?
A ‘conspiracy to defraud’ is a common law offence. It has no precise definition in statute (a piece of law created by parliament) but can be used to prosecute cases relating to a whole array of different facts. To understand what is meant by ‘conspiracy to defraud’, one must consider the case law (previously determined cases) where the judiciary have defined what it understood parliament’s intentions to be.
The offence has been defined in case law as:
“an agreement by two or more [persons] by dishonesty to deprive a person of something which is his or to which he is or would be or might be entitled [or] an agreement by two or more by dishonesty to injure some proprietary right of his suffices to constitute the offence”
“an agreement to deceive a person into acting contrary to the duty he owes to his clients or employers”.
A ‘conspiracy to commit fraud’, in contrast to conspiracy to defraud, has been defined in statute and can be broken down into many parts. A ‘conspiracy’ in itself, is defined in the Criminal Law Act 1997. It can be summarised as, an agreement between people to commit an offence or offences. Whether that actual offence or offences is carried out, is irrelevant.
To agree to commit fraud, this can be alleged by the prosecution in a number of different ways and the type of offences are covered under the Fraud Act 2006. This piece of legislation came into force on 15th January 2007 and not only helped fill a number of gaps in the law at that time, but also created additional offences. These offences are known as substantive offences
The three main offences it created were:
- Fraud by false representation
- Fraud by failing to disclose information
- Fraud by abuse of position
The Fraud Act 2006 also assisted in creating offences for those who may be found in possession of articles for the use in fraud(s) or making/supplying articles for the same use.
In addition, it helped to strengthen historic legislation in the tackling of fraudulent trading offences. Whilst the Fraud Act 2006 still applies in respect of sole traders, companies and corporate bodies are governed by the Companies Act 2006, in particular, section 993 – Offence of Fraudulent Trading.
Which offence should be used?
There are certain occasions where an offence of ‘conspiracy of defraud’ can only be prosecuted. This includes offences where, for example; land or other property (e.g. intellectual property, confidential material etc.) is dishonestly obtained but cannot be stolen or the person accused cannot be shown to have sufficient knowledge of the substantive offence (see above).
To assist prosecutors, the Attorney General has provided guidance outlining the issues prosecuting authorities should consider before proceeding with a charge of conspiracy to defraud. Notwithstanding the above, where an offence can be charged in line with statute, or a statutory conspiracy, that should be the preferred evidence. However, consideration must also be given inter alia to the overall seriousness, how the alleged offending took place and whether it is possible to prosecute as a statutory conspiracy.
The body that prosecutes the case (e.g. Her Majesty’s Revenue and Customs, Serious Fraud Office, Crown Prosecution Service, Trading Standards etc) will decide on what charges should be laid at Court. It is important however that you have in place a Solicitor who can assist and advise at each stage of the proceedings as legal arguments may arise which could result in the proceedings being withdrawn or dismissed.
Whether you are charged with a conspiracy to defraud or conspiracy to commit fraud, your case will be heard at a Crown Court. The maximum sentence the Court could give for conspiracy to defraud, fraud by false representation, fraud by failing to disclose information or fraud by abuse of position is 10 years imprisonment.
See also – New Sentencing Guidelines
The problem with conspiracy to defraud is the uncertainty of what the prosecution will allege as criminal and furthermore, due to its far reaching definition, may catch scenarios and or behaviours, which would not have otherwise been prosecuted.
It is imperative that anyone facing any of these serious and complex offences have access to an experienced Solicitor, preferably, as soon as there is any suggestion that an investigation in ongoing. The Business Crime and Regulation team at JMW are one of the most experienced in the country and ranked as ‘Tier 1’ for fraud in The Legal 500.
If you require further information, the contact details for the author of this article, Sam Healey can be found below.
Business Crime & Corporate Regulation.
T: 0161 828 1884