Transcript The Fraud Act 2006

Vulnerable Adults
and financial abuse
Martin O'Neill
MPO October 2011
Financial abuse can include:
• Theft of money or possessions
• Controlling someones access to money or
benefits
• Money being misappropriated and/or
absorbed into a Care Home's or household
budget without the person's consent
MPO October 2011
Financial abuse can include:
• Staff or volunteers borrowing or accepting gifts
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or money from service users
Goods or Services purchased in someone's name
but without their consent
Taking out a loan in someone's name
Being deliberately overcharged for goods or
services or being asked to part with money on
false pretences
Altering ownership of property without consent
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Financial abuse can include:
• Being asked to sign or give consent to
financial agreements (including making a
Will) when a person does not have the
mental capacity to understand or give
informed consent
• (With thanks to Warwick University 2006)
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Some potential offences
• Theft
• Fraud
• Forgery
• False accounting
• Handling stolen goods
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Theft
• R v Hinks
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Fraud
• Fraud Act 2006
• Came into Force on 15th January 2007
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One or two issues:
• With a view to gain or to cause loss
• This is intended to be the same as the
existing definition in the theft act 1968
• It is defined in section 5 of the new act
• Only extends to money or other property
• Can be a temporary or permanent gain or
loss
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Dishonesty
• The Ghosh (1982) two-stage test:
• A) whether the defendants behaviour
would be regarded as dishonest by the
ordinary standards of reasonable and
honest people. AND If yes
• B) whether the defendant was aware that
his conduct was dishonest and would be
regarded as dishonest by those standards
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Section 2 Fraud Act 2006
• A person is in breach of this section if he• A) dishonestly makes a false
representation, and
• B) intends, by making the representation• (i) to make gain for himself or another, or
• (ii) to cause loss to another, or to expose
another to the risk of loss
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Section 4-Fraud by `abuse of
position`
• A person is in breach of this section if he• A) occupies a position in which he is
expected to safeguard, or not to act
against, the financial interests of another
person,
• B) dishonestly abuses that position, and
• C) intended gain or loss
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s.4(2) states:
• “A person may be regarded as having
abused his position even though his
conduct consisted of an omission rather
than an act.”
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Occupies a position
• Can be official position
• Can be unofficial position
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Ormerod 2007
• Financial position (official):
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Employee/employer
Trustee/beneficiary
Director/company
Professional/client
Business partners
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Ormerod 2007
• Financial position (unofficial):
• Family
• Friend
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Examples
• An employee in a software company
dishonestly clones his company's products
to sell on for his own purposes.
• BR sandwiches! Note can be alone. No
need for conspiracy.
• Shopkeeper double swipes and clones
credit cards.
MPO October 2011
PNLD (citing Law Commission
paper on Fraud)
• Another example covered by this section is
where a person who is employed to care
for an elderly or disabled person has
access to that person's bank account and
abuses his position by removing funds for
his own personal use
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R v Marshall 2009
• Colette Marshall was joint manager of a residential care
home
• There were four residents in the home. Each had severe
learning difficulties. One of the residents, B, had a
mental age of only a young child. She was vulnerable
and Marshall was employed in a position of trust and
responsibility towards B. B had a bank account which
she could not exercise any proper control over it herself.
She was dependent on others to do so on her behalf.
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R v Marshall 2009
• There were strict rules governing the withdrawal from
her account. It should only have been done in the
presence of B and of course the money withdrawn
should have been used entirely for her benefit. A vigilant
social worker became concerned about irregular
transactions; in particular withdrawals in the West
Midlands which could not have been made by or for the
benefit of B. An audit showed that between January and
June 2008 the appellant had wrongly withdrawn £7,600
odd from B's account.
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Outcome
• Defendant convicted of sections 1 and 4
Fraud Act 2006
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To sum up
• I was looking for a quote that might
succinctly describe what we are looking
for in the context of the vulnerable…..
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Section 4 is potentially aimed at:
• “[A]cquisitive family members, neighbours, or
acquaintances who batten on vulnerable people who
have lost their wits, or who never had any, and relieve
them of their money or other property by inducing them
to make them gifts or exorbitant payments for minor
services, or otherwise financially abuse them.”
• A.P. Simester, J.R. Spencer, G.R. Sullivan and G.J. Virgo,
Simester and Sullivan's Criminal Law: Theory and
Doctrine, 4th edn (Oxford: Hart Publishing, 2010), p.619
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