Obtaining execution of a valuable security by deception (S20(2) Theft Act 1968)
Date produced: 7 February 2008
Title: Fraud
Offence: Obtaining execution of a valuable security by deception (S20(2) Theft Act 1968)
Legislation: s.20(1) and (2) Theft Act 1968
Mode of Trial: Either Way
Statutory Limitations & Maximum Penalty: 7 years imprisonment
Note: Section 20(2) is repealed as from 15.1.2007 by the FRAUD ACT 2006, however under transitional provisions this section is still applicable to offences where the offence was partly committed before 15th January 2007 - see section14(2) and schedule 2 of the Fraud Act for detailed provisions.
Sentencing range: Variable 0 see s.1 Theft Act and Deception offences
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 Case Law
Clark [1998] 2 CR.APP.R.(S) 95 (Guideline Case)
Property obtained in breach of trust
(superseded the guideline case of Barrick (1985) 81 Cr.App.R.(S) 78)
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, that person will attract immediate custody.
Such a person, as Clark himself, will hitherto be of impeccable character.
Due to the increasing scale of white-collar dishonesty, such cases warranted longer sentences than originally contemplated in Barrick.
As in Barrick, as well as the amount stolen, the following is to be taken into consideration when sentencing:
- Quality and degree of trust in, and rank of the offender
- Use the money was put to
- Effect on the victim
- Period over which the fraud was persisted in
- Effect on the public and public confidence
- Effect on fellow employees and partners
- Effect on the offender
- Offender's own history
- Personal mitigation
- Long delay between discovery of offences and start of trial (2 years or more)
- Consecutive sentences may be appropriate where the amount stolen was large, stolen on a number of occasions or taken from more than one victim.
Value of fraud/guidelines after contested trial
Significant but less than £17,500 - Very short custodial to 21 months
£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 or more
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.
Rice (1993) 14 CR.APP.R.(S) 231
30 months imprisonment following guilty pleas to 11 counts of procuring the execution of a valuable security was reduced to 2 years in light of early guilty pleas and assistance to the police in giving evidence against a co-defendant. The appellant along with others had fraudulently obtained a total of £600,000 in building society mortgages.
Luxon (1992) 13 CR.APP.R.(S) 138
The appellants were convicted or pleaded guilty to various offences of procuring the execution of a valuable security by deception, obtaining property by deception and obtaining services by deception, by way of a series of fraudulent mortgage transactions on a large number of properties. £600,000 was obtained and around £225,000 in loss was sustained. Sentences of between 18 months and 3 years,6 months were upheld on appeal.
Harjit Singh Saura (1991) 13 CR.APP.R.(S) 168
9 months following guilty pleas to 2 counts was upheld on appeal where the appellant had obtained mortgages by making false representations about his income, circumstances and intentions. Although there was no evidence of any loss, the total value of the loans was £165,000.
Harling and Hayden (1992) 13 CR.APP.R. (S) 672
Money Recouped
3 years and 6 months imprisonment for Mr Hayden following guilty pleas to 4 counts was reduced to 2 years on appeal where all the money from mortgage loans had been repaid before the offences had been discovered, and to reflect his guilty pleas.
Rolls (1993) 14 CR.APP.R.(S) 304
21 months imprisonment following guilty pleas was reduced to 9 months in total because although dishonesty had been manifest throughout, no loss had ever been intended to the lenders as the mortgage valuations throughout had been genuine.
Ozair Ahmed (1994) 15 CR.APP.R.(S) 286
21 months imprisonment reduced on appeal to 9 for a 27 year old man of good character who had pleaded guilty to 3 counts of procuring the execution of a valuable security by deception. He had made false representations about his income and secured a total of £100,000 worth of mortgages.
Mason (1991) 12 CR.APP.R (S) 737
Building Society Mortgages
3 years upheld on appeal after guilty pleas to 5 counts of procuring the execution of a valuable security by deception , 3 of obtaining property by deception and 1 of obtaining services by deception. Mortgage loans totalling over £250,000 were obtained from the building societies over a series of transactions using false particulars.
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)
Consider Also
- Confiscation
Links
Archbold 21-242 (see also the 2007 edition for s.20(2) offence)
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