Likelihood of prosecution for DLA O/P under 2k...repeat offence

[SKJP]

I would say magistrates would send this to Crown court for sentencing if person pleads guilty or for trial at the Crown court if person pleads Not guilty...

 

OK, I don’t know a great deal about the court process, but I have done a bit of my own homework today re: sentencing, and do feel as though a lot of this talk about committal to Crown Court for trial for sentencing is conjecture.

 

 

 

I’m not saying it’d never happen, or has never happened before (I know it’s common for large O/Ps as a matter of course), but Magistrates commit to Crown when they feel as though their sentencing powers are inadequate.

 

 

 

However…

 

 

 

For offences contrary to S.111(A) of the SSA 1992 (i.e., the ‘dishonesty’ charge), Magistrates can pass up to 6 months custody for each offence (in this case, there’d only be one offence), up to a maximum of 12 months.

 

 

 

Offences contrary to S.112 of the SSA 1992 (i.e., the ‘without dishonesty’ charge) can attract 3 months’ custody, and can only be tried in the Magistrates Court (as it’s a summary-only offence, I’m not sure whether or not it can be committed to Crown for sentencing only).

 

 

 

Of course there are also other less common ‘benefit fraud’ charges that can be brought, but offences contrary to the SSA 1992 appear to be most common, and sentencing guidelines are similar for all offences, anyway (my friend’s offence, if any, would fall into the following band: “Not fraudulent from the outset and either fraud carried out over a significant period of time or multiple frauds” - I wanted to post a link to current Magistrates sentencing guidelines, but can't yet as I don't have enough posts).

 

 

 

For first time offenders found guilty ‘on a fight’, sentencing powers range from a Band B fine to a ‘high level’ community order. The idea of custody does not enter the picture until a £5k threshold has been crossed, and even then, powers range from medium level community orders at the lower end of the (financial loss) scale, to 26 weeks custody (when the O/P is in the region of 20k, more than 11x my friend’s O/P). The guideline for a 12.5k O/P (7x my friend’s OP) is 6 weeks’ custody.

 

 

 

Given the fact that It’d be considered a 2nd – if not 3rd – offence, I understand that some of the above factors would be thrown out of the window, since the guidelines specifically relate to first time offenders, and can therefore not necessarily be relied upon. The reason why I posted my queries to CAG is because I've read a lot of posts here and was wondering if anyone had come across a similar situation. As somebody else said, though, it would appear as though few people come back with updates once their cases are heard (or not). As stated, there are mitigating factors and innumerable defence factors, too. However, I don't wish to spill details of a third party's health and lifestyle all over the internet, hence concealment.

 

 

 

However, given that the Magistrates can impose custody of between 3 and 6 months (depending on which charge is brought), I – again as a layperson – interpret that the Magistrates can deal with such an offence appropriately. The idea of imposing more than 26 weeks’ custody for an offence with an O/P so low that it’s not even covered by sentencing guidelines seems preposterous, even in light of the previous caution (13 years old) and previous conviction (now spent).

 

 

 

I understand that people have their opinions – and I indeed have my own! – but an opinion as to what should happen, versus the reality of what does happen are often different matters. The nature of the offence in question (i.e. one potential charge of failing to notify a change in circs, with an O/P period covering 5 months and the amount being less than £1,800) cannot be changed just to be shoehorned into some idea of what punishment ‘should’ be passed.

 

 

 

So…

 

 

 

On balance, and after some thought, I think that a community penalty in combination with a fine may be deemed appropriate. I.e., a sentence that would be considered ‘harsh’ for a first time offender found guilty of defrauding under £2,000, but appropriate to the circumstances of a ‘repeat’ offender, yet still mindful of the relatively small sum of money involved.

 

Thanks for all the input so far, and I will update if any developments arise, for future reference for other CAG'gers.

[SKJP]

...What I can tell you is that based solely on his previous defrauding, the case can be referred for prosecution. They will be aware of convictions for benefit fraud even though it was the LA as the departments share this information. It is for the DWP Prosecution Division to decide whether they will proceed with a prosecution or not. They are bound by the same 'rules' as the CPS in that the case must apply both the evidential test and the public interest test to determine whether the case has a reasonable prosect of success (that is, that they believe they can obtain a conviction). So, although it can be referred solely on the previous frauds (public interest) that does not necesserily mean that it will be prosecuted on that one basis. The PD must be satisfied that the evidence is sufficient or it will not prosecute.

 

Previous convictions will not be made known to the magistrates prior to sentencing and the PD are not required to disclose to the magistrates on what basis the case was referred to them. The magistrates are there to decide on the case, not how it came to be in court (unless of course there are issues of admissibility, which would be for the defence to determine)...

 

Thanks Erika, useful info that will be passed on.

[SKJP]

Hi guys,

 

Still no update on the above, aside from a minor thing relating to the O/P. My friend rec'd his formal O/P notice recently, and the amount involved is actually a little less than originally thought, so the O/P is now in the region of just under £1700, rather than just under £1800. Better than nothing, I suppose, though the amount of the O/P may of course be irrelevant anyway. He's already put a payment plan in place and is just waiting on their acceptance (or rejection!) of his monthly installments - I'm not too sure exactly how much he's offering.

 

Anyway, I'm posting to make a query, I didn't want to make an extra thread and clog this place up...

 

Is it possible for my friend to obtain a copy of the IUC tape/transcript at this stage? If so, how? (bearing in mind that there has been no further action of any kind as of yet, as far as sanctions go). He wants a copy because there appear to be some issues relating to what was said and what was not said during IUC. If the situation is as my friend recalls it to be (sorry, can't post too many details), then the DWP have cocked up, in a fairly significant way. My friend has brought some issues to their attention, yet they deny doing and saying what they did do and say during IUC.

 

Sorry for the vagueness, I hope you lot understand.

 

Whatever the outcome, I vow to update this thread. If it results in NFA or non-prosecution, then the lid will be blown publicly on the DWP. What they appear to have done has made me spitting mad, it's just now a matter of proving it.

[id6052]

The DWP will only release a copy of the IUC if they decide to prosecute

[sar2004]

With regards to previous convictions - as others have stated it is correct that they will not be made known to magistrates until verdict is passed.

However, this is not so straighforward. A solicitor would usually inform the court that their client has 'good character' as part of the defence. By good character we mean one who has not offended before.

 

Your friends solicitor will not be able to make that statement given there are convictions on record. Although they are spent convictions they are for a similar offence which is where the difficulty lies.

 

Because this can't be mentioned a magistrate can, in their mind probably figure out that your friend is a repeat offender.

 

 

How do I know this...because my mate was in court for not declaring a change in circumstances. Many different elements to her claim - incorrect paperwork by DWP etc BUT her solicitor could not make the good character statement because she had been prosecuted for something (i cant remember - but like shoplifting) about 17 years ago.

 

x

[CRH71]

You're not looking at charges under S111 or S112, trust me. Not for what will be viewed as a 'repeat offender.

 

You're looking at the prosecution putting forwards the Fraud Act 2006 from what I've read here, in my opinion.

 

The "date" of the alleged offences is important, as is the date the claim started as to which one they'll try for.

 

Penalties under the Fraud Act 2006 are quite a bit harsher and your friend will need a good barrister with knowledge of the benefits system.

[sar2004]

You're not looking at charges under S111 or S112, trust me. Not for what will be viewed as a 'repeat offender.

 

You're looking at the prosecution putting forwards the Fraud Act 2006 from what I've read here, in my opinion.

 

The "date" of the alleged offences is important, as is the date the claim started as to which one they'll try for.

 

Penalties under the Fraud Act 2006 are quite a bit harsher and your friend will need a good barrister with knowledge of the benefits system.

 

I am not sure I agree with this. You possibly have greater legal knowledge than me though so am happy to be corrected

Im thinking any prosecution will be under Social security Act because the person in question was a genuine claimant - who did not inform a change of circumstances.

That is considered differently from someone who has NEVER had a genuine reason for claiming - so say claims for children they do not have, in a false name, uses someone elses NI number etc - that I suspect is where the Fraud Act comes in.

 

x

[sar2004]

Assuming this is still up to date:

 

http://www.dwp.gov.uk/docs/sanction-policy.pdf

[SKJP]

Hi guys,

 

Thanks for the ongoing input. I have some things to report.

 

Firstly, as stated above, my friend was a genuine claimant at the onset of his claim. I'm no expert, but knowing him as closely as I have over the years, I can say with some certainty that for many years, his needs were genuine. He still has needs, though they appear to fall outside of the remit of what the various DLA components are paid for.

 

Now, in a post above, I refer to some problems with what the DWP have said and done. I was informed by my friend just a few weeks ago (after making my original post) that during his IUC all those months ago, the FIS officer informed him that he would be going to prison. Not that he might get a custodial sentence, but that he would, because - again, as stated on tape by the officer - he was going to be 'done' for 10+ years of DLA. Now, not only did they not have any evidence to support this, but they shouldn't have said this in the first place! My friend made no admission whatsoever during IUC, and it was largely a 'no comment' affair, so it wasn't even as though he had landed himself in hot water, on the back of which FIS could justifiably start talking about big money and harsh sentences.

 

My friend hadn't considered the implications of them saying this to him until recently, because until his £1600+ O/P was determined in Feb, he thought he might be fighting an O/P of more than £40,000 (probably more like £50,000), and despite the fact that he does/did have genuine needs, he was taken in by the pitbull-like interviewing officer. The same officer, quite conveniently, had a 'man to man' chat with him off tape, advising him to enter an anticipated guilty plea, to make the prosecution process easier on my friend (i.e. time off his sentence for pleading guilty)!!!

 

It was only when he was notified of an O/P under £1,700 that my friend got his wits about him and started to truly and properly fight this. My friend knocked together a complaint to the line manager of the officer in question, and requested a copy of the tape (expecting refusal), for referral to his solicitor. He'd also begun to furnish the basic basis of his considerable defence, anticipating court action in the soming months.

 

The tape never came, but nor did a refusal.

 

Instead, a hand-delivered letter landed on my friend's doormat this Saturday, for him to come to an AdPen interview YESTERDAY. 2 days' notice, none of which was a working day. My friend had to blag emergency leave from work in order to attend. The DWP appeared very desperate, because my friend indicated that he intended to turn the tables on them - sod the overpayment and any action that may have arisen, he was now gunning for the hide of the FIS officer in question as a rather seperate matter, who all along he just hadn't realised had made fundamental mistakes.

 

He accepted the AdPen, which amounts to a shade under £500. The proceedings lasted for around 2 minutes. It wasn't even really explained to him, he was just asked does he know what an AdPen is, and does he want it? I wasn't there, but I'm told that the interviewer in question was edgy, nervous, apologetic and couldn't wait to get the hell out of there.

 

Part of me feels as though he's been bluffed and maybe shouldn't have accepted the AdPen, on the basis that if they had prosecuted, the DWP would've looked like deceitful fools in court.

 

However, he's accepted it, and has no plans to change his mind.

[assisted blonde]

If he goes to Court and is found guilty then the magistrates will be given his previous records and these will take this into account when sentencing. I appreciate that this time he may have made a genuine mistake but it would appear he has a history of benefit claim problems so I would expect he needs to be very careful when making any future claims.

[SKJP]

If he goes to Court and is found guilty then the magistrates will be given his previous records and these will take this into account when sentencing. I appreciate that this time he may have made a genuine mistake but it would appear he has a history of benefit claim problems so I would expect he needs to be very careful when making any future claims.

 

Hi Assisted Blonde...as per post above, it didn't go to court. He got an Administrative Penalthy (civil) instead. I don't think any future claims will be made. I hope, not, anyway.