The Con Man: Part IV: A Criminal Prosecution procedure perspective

 D Rosen This is Part IV in a series on ‘The Con Man’. In part I, I gave an insight into the workings of a Confidence Fraud. In part II, I gave a sample of breaches of trust, deceit, and fraudulent misrepresentation, together with remedies in the Civil Courts of England and Wales. In part

Home » David Rosen » The Con Man: Part IV: A Criminal Prosecution procedure perspective

 D Rosen

This is Part IV in a series on ‘The Con Man’. In part I, I gave an insight into the workings of a Confidence Fraud. In part II, I gave a sample of breaches of trust, deceit, and fraudulent misrepresentation, together with remedies in the Civil Courts of England and Wales. In part III I focused upon psychological profiling and tell-tale signs of a confidence man, or a Confidence Fraud.

In this blogpost, I focus upon conduct and actions of individuals and corporate bodies, contrary to Criminal Law in England and Wales, and the procedure to be followed to attempt to bring a Con Man to justice.

The Investigation process:

1. Great care must be taken to ensure the integrity of the evidence one wishes to rely upon. The Police and Criminal Evidence Act 1984, (‘PACE’), and other legislation, must be followed to the letter, or else the evidence could become contaminated and rendered useless, or else a confession gained, could be deemed inadmissible as evidence to be relied upon in Court.

2. Those charged with investigating a criminal offence, who are not Police officers, must still comply with PACE. That obligation is set out at Section 67(9) of PACE:

“Persons other than Police Officers charged with a duty of investigating offences or charging offenders shall in the discharge of that duty have regard to any relevant provision of a code of practice made under the Act.”

That means that interviews must be conducted having regard to Code C of PACE. As a brief example of compliance with the Code, those interviews must be recorded; Rights must be given, together with access to legal advice; A Caution must be given at appropriate times throughout the interview.

The difference between questioning of a suspect by the Police, or by someone charged with a duty of investigating a criminal offence, is that in respect of a private prosecution, usually it is more likely that attendance at such a PACE interview is voluntary, whereas Police obviously have powers of arrest to compel someone to attend such an interview.

Whether a suspect wishes to respond or not to questioning is a human right, and the suspect is usually best advised to seek independent legal advice dependent on a case by case approach of the particular circumstances and previous history.

Standard of Proof:

3. The evidential standard of proof in Criminal cases is ‘beyond all reasonable doubt’, as opposed to the usual position in Civil Law, which is that the Courts have to be satisfied on a ‘balance of probabilities’, that allegations brought, are accepted as true. Beyond all reasonable doubt, means satisfied to a very high standard that the allegations brought are beyond question.

Concern as to resources of the Police and Crown Prosecution Service:

4. Be under no illusion that the Police in England and Wales wish to prosecute all those who bring genuine complaint, and provide sufficient evidence, but they are faced with 2 problems namely, a lack of resources to deal with certain economic crimes, and convincing the Crown Prosecution Service that such a prosecution should be brought. Usually, the time taken to investigate and prosecute is long and drawn out, for a variety of reasons: Those Police who do engage in economic crime are extremely busy with other cases; Procedure must be followed to the letter, or else evidence obtained, may be disregarded or considered inadmissible;

Bringing a private prosecution:

5. It is a common misconception that private prosecutions can not be brought by individuals of businesses. The right to do so, exists in common law and at Section 6(1) of the Prosecution of Offences Act 1985. Not all cases can be brought by individuals, and a list exists on the Crown Prosecution Service website, of those offences which can not be privately prosecuted [ See http://www.cps.gov.uk/legal/a_to_c/consent_to_prosecute/ ]

6. Certain cases can be brought by way of a Private Prosecution, but the approval of the Attorney-General, or the Department of Public Prosecutions, must be gained, such as the Bribery Act [See http://www.cps.gov.uk/legal/a_to_c/consent_to_prosecute/ ]

The Full Code Test:

7. Whether a case is brought in the Criminal Courts (i.e. a Magistrates Court, or the Crown Court), the full code test must be applied. [ See http://www.cps.gov.uk/publications/code_for_crown_prosecutors/codetest.html ] The test falls into 2 categories, namely the evidential stage, and the public interest stage.

8. The Evidential stage examines whether a successful prosecution can be brought, weighed up against the possible defences that can be raised. The test also involves consideration of the reliability and admissibility of evidence to be brought before the Courts.

9. The Public interest stage, consists of 7 main considerations as follows:

a. How serious is the offence committed?
b. What is the level of culpability of the suspect?
c. What are the circumstances of, and harm caused to the victim?
d. Was the suspect under the age of 18 at the time the offence was committed?
e. What is the impact on the community?
f. Is prosecution a proportionate response?
g. Do sources of information require protecting?

Professor David Rosen is Partner and head of Litigation at Darlingtons Solicitors LLP. He is a practising Solicitor-Advocate with higher rights of audience in both Civil and Criminal Courts. He is a working member of the Fraud Advisory Panel, Strategic Director, and Vice-President of the Association of Certified Fraud Examiners UK Chapter. He is a member of the Society of Legal Scholars, and as associate Professor of Law at Brunel University where he specialised in Civil Fraud, and Criminal Fraud.

David will be a speaker at the AFCE 3rd Annual UK Fraud Conference next week – we are proud to be associated with the AFCE – why not have a look at the delegate pack and if you have an interest, perhaps see if you can still get a ticket  to attend.

ACFE UK Chapter – 3rd Annual Fraud Conference – Delegate Pack.docx

David Rosen • Fraud

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