Criminal Law Question & Answer

Question : Deception & Non Payment

I recently discovered a friend of mine is being investigated by the DSS for benefit fraud.

It has come to light in the past 5 years he has received 2 payments from me plus arranged 2 loans by deception. The DSS want to pay me a visit on the 6th of August. The payments can be easily explained as lending a friend some money in time of need.

However on the loan applications he has put my shop down as his place of work. I did know he had done this on one of his loan applications but as he was desperate to raise money I saw no harm. He has never defaulted on a payment but I have been told he could be prosecuted for obtaining money by deception.

As I was aware he was doing this could I be prosecuted too? Should I have a solicitor present when the DSS pay me a visit?

The DSS have asked me to supply them with my business bank statements from the last 5 years for inspection.

Answer : Deception & Non Payment

I have been asked to advise Mr. X ( the petitioner ) with regard to his liability following an investigation into an unnamed personal friend ( the respondent ) who is currently under investigation by the Department of Social Services for benefit fraud.

For the purpose of this advice certain facts will have to be inferred because of the ambiguity of the petitioners query.

It is inferred that during the period of the last five years, the respondent has claimed benefit from the DSS for this full term or part thereof. It is further inferred that during this same period the respondent successfully applied for two loans from an unnamed financial institution, submitting what the respondent knew to be false information.

The petitioner further states that on at least one of these loan applications he himself was aware the respondent was submitting false information. The respondent was also the recipient of two undisclosed payments from the petitioner during the period in question. Finally it must be inferred that the petitioner himself has not been the recipient of any DSS benefit during the period in question and is currently not seeking any DSS benefit.

There are three offences of obtaining by deception under the 1968 Act and two under the Theft Act 1978. These offences all have some elements in common. They all require a deception, a causal link between the obtaining and deception, and dishonesty. Since the petitioner was not the recipient of any benefit resulting from the dishonesty, it is extremely unlikely that any charge of this nature could be brought against the petitioner.

However, it is not only the perpetrator who can be held liable for a criminal offence. Other participants in the offence may also be liable. Under s. 8 of the Accessories and Abettors Act 1861( as amended ) "whosoever shall aid, abet, counsel or procure the commission of an offence shall be liable to be tried as a principal offender"... If it could be shown that at any stage of the deception you, the petitioner, assisted, encouraged, advised or produced by any endeavour the dishonest obtaining, criminal charges may be brought following further investigation by the Crown Prosecution Service. Again, however, it is extremely unlikely your passive knowledge of the respondents untruthful claim to be in your employ, could be construed as any of the above.

It should be noted, however, at this stage of the proceedings the investigation is being conducted by the DSS. This body has no powers to levy criminal charges against any person. Rather in cases such as these they will concentrate their actions on obtaining as much information as possible regarding the fraudulent claim for benefit they themselves suffered. Only in cases involving persistent offenders or large amounts of money is it usual for the DSS to hand over a file to the Crown Prosecution Service and seek a prosecution. In this instance it may be the case that the CPS bring charges of obtaining by deception against the respondent for the false loan applications, but without a complaint from the financial institution involved, again unlikely.

What is likely is that the DSS seek to strengthen their case against the respondent by requesting access to your business records for the last five years. It should be noted in the strongest possible terms that you are neither under any obligation to make these private records available to the DSS, nor to meet with any of their investigators without a court order.

To conclude, it is very unlikely that the petitioner shall face any criminal charge over this matter. His personal business records are a private matter and without a court order, the petitioner is under no obligation to provide investigators from the DSS any interview or succour.

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