Dishonestly Retaining a Wrongful Credit
Date produced: 5 July 2011
Title: Financial crime
Offence: Dishonestly Retaining a Wrongful Credit
Legislation: S.24A Theft Act 1968 (inserted by 2(1) Theft (Amendment) Act 1996
Commencement date: 18.12.1996
Mode of Trial: Either Way
Statutory Limitations & Maximum Penalty: 10 years imprisonment
Note: this section is amended as from 15.1.2007 by the FRAUD ACT 2006 in order to reflect the other amendments and repeals made by the Fraud Act, however under transitional provisions, but the unamended section is still applicable to offences where the offence was partly committed before 15 January 2007 - see section 14(2) and schedule 2 of the Fraud Act for detailed provisions.
Aggravating and Mitigating Factors
- The amount involved
- The use to which money was put (spending on luxuries more venal than on necessities)
- Breach of position trust, such as by employee, director or trustee
- Elderly or vulnerable victim
- Extent of loss - intended and actual
- Extent of gain - intended and actual
- The period over which and the persistence with which the fraud was carried out
- Guilty plea
- Voluntary repayments
- Personal factors such as illness, disability, family difficulties, etc
Relevant sentencing Guidelines (If any)
Guideline Breach of Trust Case
R v CLARK [1998] 2 Cr.App.R. (S.)95
Save in very exceptional circumstances, where a person in a position of trust, for example an accountant, a solicitor, a bank employee or a postman has used his trusted and privileged position to defraud his partners, clients employers or the general public of sizeable sums of money immediate imprisonment is inevitable unless there are exceptional circumstances or the amount of money involved is very small. The amount defrauded is an important factor and the following guidelines apply where the sums involved are:
- Less than £17,500 up to 21 months imprisonment
- £17,500 to £100,000 2-3 years
- £100,000 to £250,000 3-4 years
- £250,000 to £1 million 5-9 years
- £1 million or more 10 years +
R. V KEFFORD (MARK JAMES) [2002] 2 CR. APP. R. (S.) 106
For economic crimes, alternative sentences to imprisonment could be appropriate punishment.
K was employed by a building society and opened false accounts into which he made windfall payments and then withdrew money as needed. The amount of £11,120 was taken. When interviewed the appellant immediately made full and frank confessions. He had no previous convictions. After the discovery of the offences the appellant sold his home so as to be able to repay the sums he had taken. On appeal his sentence was reduced from 12 months imprisonment to 4 months. The court commented that even in the present circumstances, in cases involving breach of trust where the sum involved was not small, the guidance in Clarke was still applicable even where it was a first offence, however, a sentence of imprisonment should only be imposed when necessary and only for as long as was necessary in view of the overcrowded prison system. For economic crimes, especially where the offender was of previous good character, alternative sentences to imprisonment could be appropriate punishment.
Relevant Sentencing Case Law
Refer to cases cited under 'theft'.
Ancillary Orders
(Archbold paragraph references in brackets)
- Compensation Orders: (5-411)
- Deprivation Orders: (5-439)
- Disqualification from acting as a Company Director: (5-851)
- Financial Reporting Orders: (5-886c) if it falls to be determined as a "lifestyle" offence by virtue of Schedule 2 of POCA)
Consider Also
- Confiscation
- Attorney General's Guidelines on plea discussions in cases of serious or complex fraud
Links
Archbold 21-323a
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