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Credit Card Fraud

Credit card cases can be technical as well as stressful

23 December 2021 7 min read
fraud
banking & finance
financial investment
consumer fraud
business crime

What form does credit card fraud take?

This type of fraud comes in a variety of forms, and the technology evolves faster than it can be written about. At the less serious end is use of a single stolen or duplicated card to purchase goods or access cash from an ATM. At the other end of the spectrum are organised fraudulent operations, involving a number of defendants who may be processing huge numbers of illegally obtained cards or card details. Some of the concepts that experienced credit card fraud lawyers should be aware of are:

Skimming

This involves criminals replacing the PED (PIN Entry Device) at a retail premises or at a cash machine with a modified device which records card details, including the PIN, when customers use their card to pay for goods or services. The device is then retrieved by the criminals, who may have forced or paid the staff at the premises to turn a blind eye to the device replacement. The result is that card details end up in criminal hands.

Duplicating cards

When details have been recorded illegally, they can be used to duplicate the cards. These cards sometimes will display new names which match identification held by the final user of the card, or may display the genuine card holder's name.

Phishing and Advance Fee Frauds

This involves fraudsters sending out mass E-mails in order to obtain card details illegally. The E-mails usually either pretend to link to a genuine credit card site which is in fact a fake; or are simple confidence trickster emails, begging for help accessing UK funds, or promising huge cash windfalls or prizes in exchange for a small card payment.

Employee Fraud in Banks and Other Institutions

Card details can be illegally obtained from a variety of other sources, including from bank employees who may have been targeted by criminals and either paid or forced to cooperate. This can result in the theft of many customers' details.

Fake Companies or Websites

Criminals can establish apparently genuine-looking websites, the only purpose of which is to encourage customers to enter their card details for goods or services. There are no goods or services; once entered, the card details can be used by criminals.

Money Laundering in Credit Card Fraud Cases

The theft of credit cards and their details is a serious crime, but it is when those details are used to obtain goods, services and cash that these activities attract the closer attention of the authorities. In major criminal operations, it is not just the theft of details which is of most significance. The aim of those involved is to have money to be able to spend on whatever they choose. As a result, a range of money laundering techniques are then used to try to make the illegally obtained money appear legitimate.

Where the cards are used to purchase goods, the goods will often be readily convertible high value goods such as electronic goods, mobile phones or designer goods. In some cases, money transfer outlets will be used to send money out of the UK using the cards. There is also a popular trend among criminals to obtain vouchers for retail and online products and sell them at near face value on auction sites.

The card details are often used outside the UK jurisdiction as a way of making it more difficult for the UK authorities to trace the money trail to the lead criminal.

Duplicate cards can of course also be sold directly to consumers to be used fraudulently.

The Law

Credit card fraud offences can be prosecuted under various laws. The use of individual cards can be prosecuted under s. 2 of the Fraud Act 2006 (false representation). The possession of items used in frauds, such as fake credit cards or fake PED units, can be prosecuted under the offence of Possession of Articles for use in a Fraud (S.6 of the Fraud Act 2006). This can include credit card details written down on paper or contained within computer files. The offence of Obtaining Services Dishonestly (s. 11 Fraud Act 2006) may also be relevant.

The majority of the more serious and complex cases are charged as conspiracy to defraud. This is a common law offence, which means that it has developed through past decisions made by the higher courts. A conspiracy means that a person has formed an agreement with others to commit a particular criminal offence.

Money Laundering offences will also usually be prosecuted in any large scale fraud case. These offences are found in the Proceeds of Crime Act.

Evidence in Credit Card Fraud Cases

In a credit card fraud case, as in many frauds, the strongest evidence is often against people on the front line of the operation. This type of evidence is often physical evidence such as fingerprints on computers or illegal PEDs. In some cases, even PEDs which haven't been tampered with have been found by police. These are usually obtained by the criminals for their electronics experts to use as spare parts while making new skimming devices.

Where fingerprints are found on devices such as skimmers or laptops with illegal information on them, this can be damaging evidence. However, a fingerprint does not tell the whole story. It is knowledge of the device's criminal significance which has to be proven for the prosecution case to succeed.

Mobile phone evidence may be used to link defendants who are not the major players to other defendants who are suspected as the bosses of the operation but against whom the police do not have much other forensic evidence. This may be evidence of telephone traffic between mobiles, or alternatively mobile phone evidence showing triangulated positions of defendants at different times (sometimes called cell-site analysis).

Evidence of the money trail, via bank accounts, properties, and purchase or sale of any other assets may also be evidence which the prosecution say links the real mastermind of a criminal operation with the dirty front line activities. This type of evidence, however, can often be fairly circumstantial, as it is difficult for the prosecution to make out an unbroken trail of money from the cards to the final holder of criminal assets. For this type of defendant, experienced credit card fraud solicitors may engage the services of a forensic accountant to show that their client's assets are legally held. This of course may prove important if there are later confiscation proceedings.

Defence Strategy

So what constitutes a good defence strategy in these cases? Well, the first thing to address is whether the client can be linked conclusively to the offending and the other defendants. Some defendants will only be linked on the basis of phone calls, for example, and the defence strategy might be to argue that the defendant was in no way involved and to provide an alternative explanation for such contact. Credit card fraud solicitors might also look to directly attack links in the evidential train between the stolen card details or their use and the client.

Where there is evidence that the client has been in extensive contact with one or a number of the other defendants or with fraud-related items or addresses, most experienced credit card fraud solicitors would want to spend as much time going through both the evidence and the client's story as possible. The client's credit card fraud solicitor and barrister will need to fully appreciate the ins and outs of all the relationships between defendants. If the defendant was naive, duped by other defendants, or simply in the wrong place at the wrong time, this will need to be told convincingly by the client and his barrister, and this story needs to be examined, tested and analysed well in advance of trial. To do this effectively requires spending time with the client and testing all the evidence before the trial.

Credit card fraud solicitors should also look at what the prosecution are saying about each defendant, and whether these assertions are supported by the evidence. Experienced credit card fraud solicitors will usually of course be aware of the technology and usual processes of these operations, including theft or skimming of cards, production of new cards, and purchase of goods/money laundering.

Barrister Choice

Credit card fraud cases are not straightforward criminal cases, in the same way that a fight outside a bar or a robbery from a post office might be. They require a good jury barrister, but also one experienced in handling large amounts of evidence, with the ability to retain and recall that information at short notice. They often also require commercial knowledge and instinct that many people (barristers included) do not have.

23 December 2021 7 min read
fraud
banking & finance
financial investment
consumer fraud
business crime

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