Making or supplying articles for use in a fraud

Date Produced: January 2012

Title: Fraud

Offence: Making or supplying articles for use in a fraud

Legislation: S7 Fraud Act 2006

Commencement Date: 15/1/07

Mode of Trial: Either Way

Statutory Limitations & Maximum Penalty: 10 years imprisonment

There are many ways in which offenders may commit this offence but computers have become a common and increasingly effective tool for both creating and disseminating articles for use in fraud. Thus, 'articles' will include any electronic programs or data stored electronically. 

Offences of this type involve an element of planning (whether by the offender or by another person); the planning of an offence has been identified by the Council as a factor indicating a higher level of culpability and the proposed starting points incorporate this aggravating factor.

Aggravating and Mitigating Factors

STEP ONE:  Assess the culpability of the offender

Factors indicating higher culpability

• Planning of an offence
• An intention to commit more serious harm than actually resulted from the offence
• Offenders operating in groups or gangs
• 'Professional offending'
• High level of profit from the offence
• An attempt to conceal or dispose of evidence
• Deliberate targeting of vulnerable victim(s)
• Abuse of a position of trust

Factors indicating significantly lower culpability

• Mental illness or disability
• Youth or age, where it affects the responsibility of the individual defendant
• The fact that the offender played only a minor role in the offence

STEP TWO: Assess the harm caused by the offending:

Factors indicating a more than usually serious degree of harm

• Multiple victims
• Victim is particularly vulnerable

In relation to harm, the value of the fraud (either that intended by the offender where that can be ascertained, or that which was likely to be achieved) is not a determinant of seriousness for these offences in the way that it is for other offences of fraud. However, it is a factor that should be taken into account in determining the appropriate sentence within the sentencing range.

The Council has identified four particular factors which may aggravate culpability and harm:

1. Number involved in the offence and role of offender  eg if offender was an organiser, planner or prime mover in a fraudulent enterprise carried out by a number of individuals.
2. Offending carried out over a significant period of time
3. Use of another persons identity  Using the identity of a living person is likely to cause emotional distress and practical difficulties of untangling the financial consequences of the fraud.  Using the identity of a deceased person is likely to indicate a higher degree of planning (as it can be an attempt to make the fraud more difficult to uncover) and is likely to cause considerable distress to the relatives of the deceased, especially if that person has only recently died.
4. Offence has a lasting effect on the victim  eg loss of most or all of their savings, being unable to make mortgage and loan repayments, or have to work beyond retirement age.

The Council has identified four personal mitigating factors that are relevant to this type of offending:

1. Voluntary cessation of offending, especially where accompanied by a genuine expression of remorse.
   This may depend upon the time that has elapsed since the commission of the last offence and the reasons why an offender stopped offending.  Where it was because of a heightened fear of discovery or the fact that the additional funds were no longer needed, a court may conclude that the degree of mitigation is negligible or that this factor should not be taken into account at all.
2. Complete and unprompted disclosure of the extent of the fraud.  This amounts to ready co-operation with the authorities, which the Council has recognised as offender mitigation.  The point at which the disclosure is made and the degree of assistance given to the authorities, should determine the amount of mitigation.
3. Voluntary restitution.  The point at which an offender voluntarily returns property or money obtained through fraud will be important and, the earlier it is returned the greater the degree of mitigation the offender should receive.
4. Financial pressure.  Whilst many are motivated by greed or a desire to live beyond legitimate means, others may be motivated by financial pressure. In principle, financial pressure is a factor that neither increases nor diminishes an offenders culpability in relation to any type of dishonesty offence, including fraud.  However, where financial pressure is exceptional and not of the offenders own making, it may in very rare circumstances constitute offender mitigation.

Relevant Sentencing Council Guideline (if any)

Sentencing Guidelines Council Definitive Guidelines on Fraud
Convicted on or after 26 Oct 2009

S7 Making / Supplying Article for Use in Fraud

Article for use in an extensive and skilfully planned fraud

Start: 4 years. Range 2 - 7 years

Article for use in an less extensive and less skilfully planned fraud

Start: 26 weeks. Range CO (High)  - 2 years

Additional Aggravating Features

• Number involved in the offence and role of the offender.
• Offending carried out over a significant period of time.
• Use of another person's identity.
• Offence has a lasting effect on the victim.

Additional mitigating factors

• Peripheral involvement
  

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Relevant Sentencing Case Law

Refer to the cases listed under "FORGERY" and "OBTAINING"

R v CRICK [1981] 3 Cr.App.R. (S) 275
The defendant pleaded guilty to possessing a press and making 150 poor quality coins for use in slot machines. "At one extreme is the professional forger with carefully prepared plates and elaborate machinery who manufactures large quantities of bank notes and puts them into circulation. A long sentence of imprisonment is appropriate in such cases. At the other end is this case." 9 months.

R v AMEEN DIN AND OTHERS [2005] 2 Cr.App.R.(S.) 40
Pleaded guilty to conspiracy to defraud. Over a period of more than two years, the defendant and others conspired to defraud banks and other financial institutions by making and using cloned and skimmed credit and debit cards in each others premises. £250K obtained and attempted to obtain a further £250K. 21 months to 4 years.

Ancillary Orders

• Compensation
• Confiscation
• POCA
• Forfeiture orders
• Destruction orders

Consider Also:

• It is not necessary to prove use in any particular fraud [Archbold 21-399]

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