Council publishes report on fraud sentencing
20 October 2022
The Council has today published a new literature review on the sentencing of fraud offences in Scotland. The review was carried out by a group of expert academics from the University of Central Lancashire and explores three overarching themes: fraud sentencing processes, fraud perpetrators, and fraud victims.
The review considers available data on fraud sentencing, existing literature on fraud perpetrator typologies (classifications), and existing research on fraud victim typologies. Within these areas, the review also discusses the characteristics of fraud offence type, perpetrator, and victim, and their relationship to sentencing decisions.
According to the report, fraud covers a broad range of activities that involve the use of misrepresentation to secure an advantage, or to cause disadvantage to others.
Police Scotland recognise that cyber-fraud (fraud that takes place online), is the most common and fastest growing type of financial crime affecting Scotland. The report reveals that an estimated 57% of all recorded fraud in 2020-21 was cyber-crime, and that cyber-fraud had increased 149% from 2019-20.
Other types of fraud explored in this review include benefit fraud (obtaining a state benefit that a person is not entitled to), white-collar fraud (financial crime committed by individuals in privileged positions in business and public organisations) and romance fraud (where a person is defrauded by an offender or offenders through what the victim perceives to be a genuine relationship).
Unlike England and Wales, Scotland does not have a Fraud Act. In Scotland, fraud is mainly dealt with under common law. The Crown Office and Procurator Fiscal Service is responsible for prosecuting crime in Scotland. Any fraud crimes it considers serious enough are passed onto its Economic Crime Unit – the primary investigators and prosecutors of serious fraud and economic crimes.
The seriousness of an offence is determined by two things: the culpability of the offender and the harm caused. Particularly in cases of fraud, defining the concept of ‘harm’ can be complex and the report explores this in detail, considering factors such as the vulnerability of the victim, and to what extent the offence has affected them. The report explains that, in cases of fraud, monetary loss and financial impact are key considerations. Defining culpability is a more straightforward task. It is determined by weighing up the factors of a case to conclude the offender’s role and the extent to which the offending was planned.
Mitigating and aggravating factors influence sentencing decisions, and for many fraud victims it is important that they are able to recover their losses. However, not all fraud cases with successful prosecutions then lead to compensation.
The focus of this review is recent research from the UK but it also acknowledges information published in Canada, the USA and Australia, among other countries, and the increasingly global nature of fraud.
The Council is grateful to the authors of this comprehensive research, which will be of great assistance as it continues its work developing sentencing guidelines for Scotland.
Read the full literature review.
The review was carried out by Dr Rebecca Fish, Alice Mills, Georgina Bahri, Dr Deborah Powney, Dr Emily Cooper, Dr Clare Scollay, and Professor Sarah Kingston, all from the School of Justice, University of Central Lancashire