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Penalties for fraud

(13 Posts)
Themodernuriahheep Sat 10-Oct-15 20:30:04

I've name changed for this query.

is anyone an expert?

I have read the sentencing guidelines and they are pretty clear in terms of custodial sentencing.

I don't understand about whether there are financial penalties and how they work, though. Couldn't work my way through.

Suppose with your ill gotten gains you invested say 90 per cent in the stock market and the value has appreciated, more than enough to cover the total you nicked, what are you then fined?

And another question, how long does it normally take to get to court atm?

Zisterhood Sat 10-Oct-15 21:01:03

From experience of family member in brief. Theres a confiscation order and guilty party will have to sell house to pay confiscation order. It took 14 months from arrest to trial and nearly 3 years on, confiscation order hasn't yet been carried out although guilty party is currently in prison.

Themodernuriahheep Sat 10-Oct-15 21:08:30

Thanks, Zister.

I think it's the confiscation order bit i don't understand. Because if - as a result of the stock market going up- there is more than enough to cover what she stole, will she have another penalty to pay?

Zisterhood Sat 10-Oct-15 21:50:28

Hi I wouldn't like to give you wrong info so I would suggest taking a look at the proceeds of crime act.

GreenbackBoogie Sat 10-Oct-15 21:59:13

Sentencing Guidelines Definitive Guideline has to be followed by all courts in England & Wales. In addition to the sentence the Court is usually obliged to consider confiscation, compensation and other orders such as director disqualification. If you give me an idea of offence and value I can explain in more detail. The Proceeds of Crime Act 2002 ("POCA") is very draconian and complex legislation. In very simple terms if a confiscation order is appropriate the Court has to determine two figures: 1 the benefit figure of the offence & 2 the value of realisable assets. In the scenario where the asset has increased the court would usually look to deprive the offender of the increase in value. You mention 'a fine'. A fine is a type of sentence as is a term of imprisonment or a community order. A fine is entirely different to a confiscation order.

GreenbackBoogie Sat 10-Oct-15 22:03:34

Under POCA a confiscation order must be satisfied within 6 months of the order being made. The court may in certain circumstances extend the period to comply to 12 months. If the order is not satisfied within the timeframe a period of imprisonment in default is to be served. This would be consecutive to any other sentence and the confiscation order would still need to be paid when the offender completed the term in default. The court does have the power to vary an order if for example the asset to be sold to satisfy the order suddenly changes in value.

GreenbackBoogie Sat 10-Oct-15 22:08:41

How long a case takes to go through the court system is like asking how long is a piece of string. It depends on offence, complexity of case, whether the defendant wishes to have a trial or pleads guilty, when a plea is entered, court availability, number of witnesses, number of defendants, availability of defence advocate, availability of prosecutor and court space. Working on the basis the person has been charged and is on bail the first hearing at the Magistrates' Court should be within a week. If the person has been summonsed time to first appearance could be much longer. Is the case for the Mags Court (summary offence/either way offence) or is it indictable only or did person elect/bench decline and it needs to go to Crown Court? Too little detail in original post to be able to answer that part of your query.

Themodernuriahheep Sun 11-Oct-15 00:49:56

Yup, sorry, out of my depth a bit, but will try yo provide a bit more substance.

X has stolen £y from her employer. She has put most of this into the stock market but kept some for fun and games. Let's assume a) that all if the latter has gone and then b) that some of it remains.

The stockmarket holdings have increased to the extent that the value exceeds the total of the original amount stolen.

X has been caught. She has confessed and will plead guilty. Will expect a custodial sentence.

Am assuming that the stockmarket holdings will be realised, the employer repaid and the profit go to the public funds.

Question, will x have to pay any money, under scenario a. ? Under scenario b) presumably has to return what remains. But would there be any more yo pay? Eg the amount she has spent living it up?

GreenbackBoogie Sun 11-Oct-15 08:15:55

If what you say is correct then this is a simple theft case. Roughly what value are we talking about here? Over what time span? Money received under a confiscation order does NOT go to the employer it goes to the state. If there is an abundance of money the Court would look at a compensation order (money to go to the employer) and a confiscation order to deprive offender of her gains. Court hearings are expensive so unless it is thousands the court may opt for compensation. The best option for the offender (assuming her assets have not already been restrained) would be to offer to pay pack money to the employer and try and avoid complex confiscation proceedings. Is employer a large organisation or small company? Insurance may cover employer's losses. As I said in earlier answer the court look at two figures: value of benefit and what assets are available. Say £100,000 stolen last year (benefit figure) and only identifiable asset is £100,000 caravan bought 10 years ago (so before the theft) the court orders confiscation of caravan/proceeds of sale of caravan even though it was purchased years ago before the theft occurred. Confiscation looks at assets owned not whether these are directly from the offence.

Themodernuriahheep Sun 11-Oct-15 09:13:29

High value theft, don't know the time span. I suspect she has no other assets other than possible equity in a property purchased let's assume pre theft.

I have assumed that the stockmarket holdings purchased with the theft would be sold. There is a substantial gain.

The question is then what level of confiscation order would apply and over what period. I can't imagine she would realistically be able to repay the benefit over less than say 20 years. Unless she did a Jeffrey Archer.

This is v helpful, thanks.

GreenbackBoogie Sun 11-Oct-15 10:27:12

High value as in millions? Time span of offence and type of offence are relevant as to whether the court would determine that the offender has a "criminal lifestyle" this would mean the court are able to confiscate more than the value of the theft as POCA decrees that assumptions have to be made about all property obtained within a certain timeframe which could be outside the timeframe of the offence for which she is before the court on this occasion. Without seeing the exact offence and dates I cannot explain if this applies here. As I said above, timeframe to repay confiscation is 6 months which can be extended in some circumstances to 12 months. The court have to look at what the defendant has available at that time to confiscate. In theory if court find the 'realisable assets' are £500,000 comprising a house, some shares and a car then there should be no difficulty in selling those assets and realising £500,000 within 6 months. If house sale going through but in a chain for example and so not going to complete within 6 months that is the kind of circumstance where court could extend time to comply with order to 9 or 12 months. The court looks at what the offender has at the time order is made. There are exceptions to this such as 'tainted gifts' for example where offender has "gifted" criminal assets to friends/family to avoid them being confiscated or where court has determined there are 'hidden assets' meaning defendant has not been honest with the court about what assets they have, but keeping it simple confiscation orders are based on what assets defendant has at time confiscation order made. Best way for defendant to avoid a major financial investigation is to offer to repay what stolen ASAP and agree compensation order as part of guilty plea. Offender should also attempt to agree a basis of plea restricting timespan of offending as much as possible. POCA is very complicated and there are tonnes of variables. Without knowing exact offence and timescale I can't be more precise. Feel free to PM me if you prefer not to share all the details here.

Themodernuriahheep Sun 11-Oct-15 14:17:24

Thanks indeed, and may well pm you. Really helpful.

mumtothree08 Tue 12-Apr-16 19:44:20

Hi im wondering if anybody can answer my question
My partner is serving a sentence for a separate offence but is due for release on the 22nd but has a poca order against him which has already been extended and runs out the 15th will he automatically start his 12 months sentence after this date or could there be a chance he could be released on the 22nd i was told they have to take him to court for sentencing. Which takes up to 4 weeks but i cant find any information on it

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