The law relating to articles for use in a fraud is actually an evolution of the old law of ‘going equipped to cheat’.
A person is guilty of the new offence if he possesses or has under his control any article for use in the course of or in connection with any fraud. ‘Articles’ simply means items. An item could be a piece of technical equipment, such as a device for manufacturing credit cards, a computer with software used in an email ‘phishing’ scam, or even a fake national insurance card. This means that it is not just the person on the front line committing the fraud who is guilty, but all people who possess any of the equipment used in the meantime.
It is worth noting that ‘items’ can include documents and data on computers, so personal details of fraud victims, or fake identification used to access funds illegally could be caught by this law. Even a fake uniform used to gain access to premises where a fraud then takes place could be an ‘item’ in this sense.
However, it is not just handling or possessing such items which results in a conviction. The prosecution must prove that the defendant intended that either s/he or someone else use the item. If someone has a friend’s credit card details, but does not intend to use them for any illegal purpose, then he or she cannot be guilty of an offence.
Making, Adapting, Supplying etc. Articles
Section 7 of the Fraud Act is the offence of making, adapting, supplying or offering to supply an article for use in a fraud. This criminalises anyone who is involved in the manufacture of these items, and anyone who deals in them. This can include people who write software to help them hack into financial databases, or people make skimming devices for use in credit card fraud. It can also include people who trade in such devices and software.
The prosecution have to prove not just that the person was involved in making or supplying the items in question. The jury have to be sure that the person either knew that it was designed a fraudulent purpose or intended that it would be used this way.
Sentences for Possession or Control of Articles
A person guilty for possessing or controlling items for use in a fraud faces a maximum of 5 years in the Crown Court. The maximum sentence is rare, and is usually only applicable to the most serious of cases.
In cases where the fraud that the item is to be used for is serious and well planned, sentences of 6 weeks up to two years in prison are typical, although non custodial sentences may be possible. In a less well planned or less serious fraud, a community order or short prison sentence is the norm.
Sentences for Making, adapting, supplying etc. Articles
The maximum sentence for the more serious offence of making or supplying such items (section 7) is 10 years. This is higher than for simple possession of such items to reflect the fact that it is dealers and makers of these items who create the opportunities for serious and technically advanced frauds to take place.
In cases where the fraud that the item is to be used for is serious and well planned, sentences of 2 – 7 years are possible. In a less well planned or less serious fraud, a high level community order up to a 2 year prison sentence is possible.
The length of sentence handed down can depend on several factors. How much money was to be gained, how much the victims would lose, and whether the victims were vulnerable may all be relevant and result in higher sentences. Whether the offender was a major or minor player may also increase or decrease sentence. Personal mitigation of the defendant may also reduce sentence.
Written by Athena Forensics. Computer Forensic and Mobile Phone Forensic Investigation and Expert Witness Services Throughout the UK www.athenaforensics.co.uk
0845 882 7386