Possession of articles for use in fraud

Date Produced: January 2012

Title: Theft

Offence: Possession of articles for use in a fraud

Legislation: S6 Fraud Act 2006

Commencement Date: 15/1/07

Mode of Trial: Either Way

Statutory Limitations & Maximum Penalty: 5 years

Factors to take into consideration

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.

Methods of committing the offence include:

Lists of credit card numbers
False fronts for ATMs
Draft emails for use in advance fee frauds
Phishing - where an offender sends an email purporting to come from a financial institution,
Vishing - where an offender uses an automated telephone system, purporting to be the
telephone system of a financial institution,
Pharming - where victims intend to visit a financial institution's website but are redirected to the offender's website
Use of a 'Trojan' - where an offender installs a virus on victims' computers

Aggravating & 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:

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.
Offending carried out over a significant period of time
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.
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:

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.
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.
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.
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 offender's culpability in relation to any type of dishonesty offence, including fraud. However, where financial pressure is exceptional and not of the offender's 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

S6 Possession of Articles for Use in Fraud

Article for use in an extensive and skilfully planned fraud

Start: 36 weeks.

Range: 6 weeks - 2 years

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

Start: CO (Med).

Range: CO (Low) - 26weeks

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

The presence of one or more aggravating factors may indicate a more severe sentence within the range while the presence of one or more mitigating factors may indicate a less severe sentence within the range.

The presence of aggravating or mitigating factors of exceptional significance may indicate that the case should move to a higher or lower level of seriousness.

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Ancillary Orders:

Compensation
Confiscation
POCA
Forfeiture orders
Financial reporting orders

Consider Also

Serious Crime Prevention Order is available [ para 5-1168 Archbold ]