Being accused of any crime can be an unpleasant experience, but nobody appreciates being accused of betraying someone's trust or a position of duty, often where the complainant is a former client, employer, customer, or even family member. A good fraud by abuse solicitor will often seek to pursue a proactive defence case wherever possible. They will also show sensitivity to what the client is going through.
Most people accused of this offence have never been in trouble with the police. All are scared of the possibility of prison and are desperate to avoid it. It is a fraud by abuse of trust solicitor's job to help the client avoid either a conviction and/or a prison sentence where possible.
The Law - section 4 Fraud Act 2006
1. A person is in breach of this section if he/she:
a) occupies a position in which he/she is expected to safeguard, or not to act against, the financial interests of another person
b) dishonestly abuses that position, and intends, by means of the abuse of that position:
to make a gain for himself/herself or another, or
to cause loss to another or to expose another to a risk of loss
2. A person may be regarded as having abused their position even though their conduct consisted of an omission rather than an act.
In 2020 an engrained legal test for establishing dishonesty was changed after an appeal hearing in a particular case. The test had previously contained a subjective element in so far as it asked whether a defendant appreciated their conduct was dishonest by the ordinary standards of reasonable people. Fraud by abuse of trust solicitors will tell you that this gave rise to ways of defending a case that are no longer available. The new test is entirely objective and not reliant on whether the defendant believed what they were doing was right. The two limbs are set out as follows:
what was the defendant's actual state of knowledge or belief as to the facts; and
based on those facts, was his/her conduct dishonest by the standards of ordinary decent people?
Liability by omission
Your fraud by abuse of trust solicitor will advise you that the act encompasses both action and inaction with intent to cause gain or loss. For example, a company director who intends to get new business for himself personally rather than seek to secure new business on behalf of his company would fall foul this offence. What of the position of an employee who fails to pass on new business leads to the loft conversion company that employs him, diverting them instead to his brother in law who is a builder? Can this person be guilty of fraud by abuse of position? Simply put, yes they can. They are
Who is in a position of trust?
Section 4 Fraud Act 2006 was clearly intended to prevent the dishonest abuse of positions by people we are entitled to consider above suspicion e.g. a trustee, company director, or executor of a will.
However, it is not limited to people in lofty positions. Employees who use their position to gain something for themselves even though they are not actually stealing property would be caught by this section. A clear example is where catering or bar staff buy in their own goods to sell to customers instead of those of the employers. What about the nurse who is looking after a patient or even a less formal carer? It will in all cases come down to a matter of fact and degree as to who is or is not in a position of trust. What is clear is that if you are accused of this