Sentencing Guidelines: Fraud (statutory offences) - Justice Committee Contents


Memorandum submitted by the Magistrates' Association

SENTENCING POLICY AND PRACTICE COMMITTEE

Comments on the Draft MCSG Sentencing for Fraud—Statutory Offences

  1.  We welcome the opportunity to comment on the draft guideline and consider that it is in general an excellent document—clear and comprehensive.

  2.  Whilst it is tempting in the name of consistency to use the same approach to offence categorisation, offences against the public purse should be treated as more serious than other forms of fraud for the following reasons:

    —  any fraud undermines public confidence in the Government, and can, potentially, disrupt the National Budget;

    —  companies and individuals can and do Insure against such losses—no such cover exists for the public purse;

    —  benefit/Tax Credit fraud is very easy/tempting due to the trust placed on the applicant;

    —  VAT evasion and Revenue evasion on tobacco and alcohol has become a National pastime with some sections of the community; and

    —  organised criminals can and do create untold misery for those people who need help the most (identity theft/duress to make false claims).

  3.  The approach adopted is consistent with that of recent Guidelines, and the introduction of non-custodial starting points for sentences for the least serious offences is welcome. However the points raised above should form part of the approach.

  4.  Paragraphs 14 & 16:

  We welcome the recognition that the impact of crimes of dishonesty impact differently upon different victims. It is a serious error in guidelines for other offences (such as theft) that the difference between the various bands is based solely upon the amount stolen and not upon the impact on the victim.

  5.  Paragraph 22 Aggravating Factors:

  Third bullet point: There are occasions where the main offender uses his power over certain individuals to commit offences from which he gains the profits—someone who operates as a people-trafficker will, by his knowledge of their illegal status, be able to force those he trafficks to co-operate in financial frauds.

  6.  Paragraph 29 Mitigating Factors:

  Additional suggested mitigating factor (related to comments on Paragraph 22, above):

    —  Offender was controlled by another.

  7.  Paragraph 38, penultimate line.

  We would suggest that the phrase "expression of remorse" should be changed to "evidence of remorse" as anyone can express remorse in a very convincing manner when their regrets are actually based solely on the fact that they have been caught.

  8.  Confidence Frauds (pages 16-17):

  The points made in Paragraphs 14 and 16 (see comments above) are not incorporated into the sentencing grid, nor do the notes on page 16 take account of the disproportionate loss to some offenders. As this type of offence is atypical of fraud offences as a whole in that many of the victims are of limited means (who may lose all their savings) this fact should not just be one aggravating feature amongst many, but should automatically move the offence up one band at least. In no way can the theft by fraud of £10,000 from a bank or other major institution, whose assets (normally) run into billions, be equated with the theft of a similar amount from a pensioner who has by the offender's fraudulent activities lost every penny he owns.

  9.  Possessing, making or supplying articles for use in fraud.

  Page 18, paragraph 3. The list of "articles" contained in this paragraph should include so-called "sucker lists".

  10.  Annex A:

  Obtaining services dishonestly. The definition says "...obtaining a service... by a dishonest act." Is there an equivalent in this (or any other offence) to stealing by finding; is the fact that the offender should have realised that the goods or services provided were provided mistakenly (and should therefore have returned them where possible) enough to prove an offence; or is the dishonest act an essential part?

  11.  Annex B:

  Culpability—Only Previous convictions of a like nature should be deemed relevant.

  Harm—The logic of offences against those working in the public sector or providing a public service being more serious is difficult to understand. If the meaning is to highlight the seriousness of the offence because the injured party is targeted for working in the public sector, then there may be some merit, otherwise not.

April 2009





 
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