Revenue fraud

Common law, Customs and Excise Management Act 1979 (sections 50, 170 and 170B), Fraud Act 2006, s.1, Taxes Management Act 1970 (section 106A), Theft Act 1968, s.17, Value Added Tax Act 1994 (section 72)
Effective from: 1 October 2014

Fraud

Conspiracy to defraud (common law)
Triable on indictment only

Fraud Act 2006 (section 1)
Triable either way

Maximum: 10 years’ custody

Offence range: Low level community order – 8 years’ custody


False accounting, Theft Act 1968 (section 17)

Fraudulent evasion of VAT; False statement for VAT purposes; Conduct amounting to an offence, Value Added Tax Act 1994 (section 72)

Fraudulent evasion of income tax, Taxes Management Act 1970 (section 106A)

Fraudulent evasion of excise duty; Improper importation of goods, Customs and Excise Management Act 1979 (sections 50, 170 and 170B)

Triable either way
Maximum: 7 years’ custody
Offence range: Band C fine – 6 years and 6 months’ custody


Fraud

Cheat the public revenue (common law)

Triable on indictment only
Maximum: Life imprisonment
Offence range: 3 – 17 years’ custody

User guide for this offence


Step 1 – Determining the offence category

The court should determine the offence category with reference to the tables below. In order to determine the category the court should assess culpability and harm. The level of culpability is determined by weighing up all the factors of the case to determine the offender’s role and the extent to which the offending was planned and the sophistication with which it was carried out.

Culpability demonstrated by one or more of the following

A – High culpability

  • A leading role where offending is part of a group activity
  • Involvement of others through pressure/influence
  • Abuse of position of power or trust or responsibility
  • Sophisticated nature of offence/significant planning
  • Fraudulent activity conducted over sustained period of time

B – Medium culpability

  • Other cases where characteristics for categories A or C are not present
  • A significant role where offending is part of a group activity

C – Lesser culpability

  • Involved through coercion, intimidation or exploitation
  • Not motivated by personal gain
  • Opportunistic ‘one-off’ offence; very little or no planning
  • Performed limited function under direction
  • Limited awareness or understanding of extent of fraudulent activity

Where there are characteristics present which fall under different levels of culpability, the court should balance these characteristics to reach a fair assessment of the offender’s culpability.

Harm – Gain/intended gain to offender or loss/intended loss to HMRC
Category 1 £50 million or more Starting point based on £1 million
Category 2 £10 million–£50 million Starting point based on £30 million
Category 3 £2 million–£10 million Starting point based on £5 million
Category 4 £500,000–£2 million Starting point based on £1 million
Category 5 £100,000–£500,000 Starting point based on £300,000
Category 6 £20,000–£100,000 Starting point based on £50,000
Category 7 Less than £20,000 Starting point based on £12,500

 Step 2 – Starting point and category range

Having determined the category at step one, the court should use the appropriate starting point to reach a sentence within the category range in the table below. The starting point applies to all offenders irrespective of plea or previous convictions.

Where the value is larger or smaller than the amount on which the starting point is based, this should lead to upward or downward adjustment as appropriate.

Where the value greatly exceeds the amount of the starting point in category 1, it may be appropriate to move outside the identified range.

Table 1

Section 1 Fraud Act 2006 Conspiracy to defraud (common law)

Maximum: 10 years’ custody

For offences where the value of the fraud is over £2 million refer to the corresponding category in Table 3 subject to the maximum sentence of 10 years for this offence.

Table 1: Revenue Fraud - Conspiracy to defraud
  Culpability
Harm A B C

Category 4

£500,000–£2 million

Starting point

7 years’ custody

Starting point

5 years’ custody

Starting point

3 years’ custody

Starting point based on £1 million

Category range

5 – 8 years’ custody

Category range

3 – 6 years’ custody

Category range

18 months’ – 4 years’ custody

Category 5

£100,000–£500,000

Starting point

5 years’ custody

Starting point

3 years’ custody

Starting point

18 months’ custody

Starting point based on £300,000

Category range

3 – 6 years’ custody

Category range

18 months’ – 4 years’ custody

Category range

26 weeks’ – 3 years’ custody

Category 6

£20,000–£100,000

Starting point

3 years’ custody

Starting point

18 months’ custody

Starting point

26 weeks’ custody

Starting point based on £50,000

Category range

18 months’ – 4 years’ custody

Category range

26 weeks’ – 3 years’ custody

Category range

Medium level community order – 1 year’s custody

Category 7

Less than £20,000

Starting point

18 months’ custody

Starting point

36 weeks’ custody

Starting point

Medium level community order

Starting point based on £12,500

Category range

36 weeks’ - 3 years’ custody

Category range

Medium level community order – 18 months’ custody

Category range

Low level community order – High level community order

 

Table 2

Section 17 Theft Act 1968: False Accounting

Section 72(1) Value Added Tax Act 1994: Fraudulent evasion of VAT

Section 72(3) Valued Added Tax Act 1994: False statement for VAT purposes

Section 72(8) Value Added Tax Act 1994: Conduct amounting to an offence

Section 106(a) Taxes Management Act 1970: Fraudulent evasion of income tax

Section 170(1)(a)(i), (ii), (b), 170(2)(a), 170B Customs and Excise Management Act 1979: Fraudulent evasion of excise duty

Section 50(1)(a), (2) Customs and Excise Management Act 1979: Improper importation of goods

Maximum: 7 years’ custody

Table 2: Revenue Fraud - other revenue fraud offences
  Culpability
Harm A B C

Category 4

£500,000–£2 million

Starting point

5 years 6 months’ custody

Starting point

4 years’ custody

Starting point

2 years 6 months’ custody

Starting point based on £1 million

Category range

4 years’ – 6 years 6 months’ Custody

Category range

2 years 6 months’ – 5 years’ custody

Category range

15 months’ – 3 years 6 months’ custody

Category 5

£100,000–£500,000

Starting point

4 years’ custody

Starting point

2 years 6 months’ custody

Starting point

15 months’ custody

Starting point based on £300,000

Category range

2 years 6 months’ – 5 years’ custody

Category range

15 months’ – 3 years 6 months’ custody

Category range

26 weeks’ – 2 years 6 months’ custody

Category 6

£20,000–£100,000

Starting point

2 years 6 months’ custody

Starting point

15 months’ custody

Starting point

High level community order

Starting point based on £50,000

Category range

15 months’ – 3 years 6 months’ custody

Category range

High level community order – 2 years 6 months’ custody

Category range

Low level community order – 36 weeks’ custody

Category 7

Less than £20,000

Starting point

15 months’ custody

Starting point

26 weeks' custody

Starting point

Medium level community order

Starting point based on £12,500

Category range

26 weeks' – 2 years 6 months’ custody

Category range

Medium level community order – 15 months' custody

Category range

Band C fine – High level community order

 

Table 3 

Cheat the Revenue (common law)

Maximum: Life imprisonment

Where the offending is on the most serious scale, involving sums significantly higher than the starting point in category 1, sentences of 15 years and above may be appropriate depending on the role of the offender. In cases involving sums below £2 million the court should refer to Table 1.

Table 3: Revenue Fraud - Cheat the revenue
  Culpability
Harm A B C

Category 1

£50 million or more

Starting point

12 years’ custody

Starting point

8 years’ custody

Starting point

6 years’ custody

Starting point based on £80 million

Category range

10 – 17 years’ custody

Category range

7 – 12 years’ custody

Category range

4 – 8 years’ custody

Category 2

£10 million–£50 million

Starting point

10 years’ custody

Starting point

7 years’ custody

Starting point

5 years’ custody

Starting point based on £30 million

Category range

8 – 13 years’ custody

Category range

5 – 9 years’ custody

Category range

3 – 6 years’ custody

Category 3

£2 million–£10 million

Starting point

8 years’ custody

Starting point

6 years’ custody

Starting point

4 years’ custody

Starting point based on £5 million

Category range

6 – 10 years’ custody

Category range

4 – 7 years’ custody

Category range

3 – 5 years’ custody

 

Band ranges
Starting point Range
Fine Band A  50% of relevant weekly income  25 – 75% of relevant weekly income
Fine Band B  100% of relevant weekly income  75 – 125% of relevant weekly income
Fine Band C  150% of relevant weekly income 125 – 175% of relevant weekly income
Fine Band D  250% of relevant weekly income 200 – 300% of relevant weekly income
Fine Band E 400% of relevant weekly income 300 – 500% of relevant weekly income
Fine Band F  600% of relevant weekly income  500 – 700% of relevant weekly income
Community orders table

The seriousness of the offence should be the initial factor in determining which requirements to include in a community order. Offence-specific guidelines refer to three sentencing levels within the community order band based on offence seriousness (low, medium and high). See below for non-exhaustive examples of requirements that might be appropriate in each.

At least one requirement MUST be imposed for the purpose of punishment and/or a fine imposed in addition to the community order unless there are exceptional circumstances which relate to the offence or the offender that would make it unjust in all the circumstances to do so. For further information see the Imposition guideline.

A suspended sentence MUST NOT be imposed as a more severe form of community order. A suspended sentence is a custodial sentence.

Low

Medium

High

Offences only just cross community order threshold, where the seriousness of the offence or the nature of the offender’s record means that a discharge or fine is inappropriate

In general, only one requirement will be appropriate and the length may be curtailed if additional requirements are necessary

Offences that obviously fall within the community order band

Offences only just fall below the custody threshold or the custody threshold is crossed but a community order is more appropriate in the circumstances

More intensive sentences which combine two or more requirements may be appropriate

Suitable requirements might include:

  • Any appropriate rehabilitative requirement(s)
  • 40 – 80 hours of unpaid work
  • Curfew requirement for example up to 16 hours per day for a few weeks
  • Exclusion requirement, for a few months
  • Prohibited activity requirement
  • Attendance centre requirement (where available)

Suitable requirements might include:

  • Any appropriate rehabilitative requirement(s)
  •  80 – 150 hours of unpaid work
  • Curfew requirement for example up to 16 hours for 2 – 3 months
  • Exclusion requirement lasting in the region of 6 months
  • Prohibited activity requirement

 

Suitable requirements might include:

  • Any appropriate rehabilitative requirement(s)
  • 150 – 300 hours of unpaid work
  • Curfew requirement for example up to 16 hours per day for 4 – 12 months
  • Exclusion requirement lasting in the region of 12 months

* If order does not contain a punitive requirement, suggested fine levels are indicated below:

BAND A FINE

BAND B FINE

BAND C FINE

Custodial sentences

The approach to the imposition of a custodial sentence should be as follows:

1) Has the custody threshold been passed?

  • A custodial sentence must not be imposed unless the offence or the combination of the offence and one or more offences associated with it was so serious that neither a fine alone nor a community sentence can be justified for the offence.
  • There is no general definition of where the custody threshold lies. The circumstances of the individual offence and the factors assessed by offence-specific guidelines will determine whether an offence is so serious that neither a fine alone nor a community sentence can be justified. Where no offence specific guideline is available to determine seriousness, the harm caused by the offence, the culpability of the offender and any previous convictions will be relevant to the assessment.
  • The clear intention of the threshold test is to reserve prison as a punishment for the most serious offences.

2) Is it unavoidable that a sentence of imprisonment be imposed?

  • Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable. Custody should not be imposed where a community order could provide sufficient restriction on an offender’s liberty (by way of punishment) while addressing the rehabilitation of the offender to prevent future crime.
  • For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.

3) What is the shortest term commensurate with the seriousness of the offence?

  • In considering this the court must NOT consider any licence or post sentence supervision requirements which may subsequently be imposed upon the offender’s release.

4) Can the sentence be suspended?

  • A suspended sentence MUST NOT be imposed as a more severe form of community order. A suspended sentence is a custodial sentence. Sentencers should be clear that they would impose an immediate custodial sentence if the power to suspend were not available. If not, a non-custodial sentence should be imposed.

The following factors should be weighed in considering whether it is possible to suspend the sentence:

Factors indicating that it would not be appropriate to suspend a custodial sentence

Factors indicating that it may be appropriate to suspend a custodial sentence

Offender presents a risk/danger to the public

Realistic prospect of rehabilitation

Appropriate punishment can only be achieved by immediate custody

Strong personal mitigation

History of poor compliance with court orders

Immediate custody will result in significant harmful impact upon others

The imposition of a custodial sentence is both punishment and a deterrent. To ensure that the overall terms of the suspended sentence are commensurate with offence seriousness, care must be taken to ensure requirements imposed are not excessive. A court wishing to impose onerous or intensive requirements should reconsider whether a community sentence might be more appropriate.

Pre-sentence report

Whenever the court reaches the provisional view that:

  • the custody threshold has been passed; and, if so
  • the length of imprisonment which represents the shortest term commensurate with the seriousness of the offence;

the court should obtain a pre-sentence report, whether verbal or written, unless the court considers a report to be unnecessary. Ideally a pre-sentence report should be completed on the same day to avoid adjourning the case.

Magistrates: Consult your legal adviser before deciding to sentence to custody without a pre-sentence report.

For further information and sentencing flowcharts see the Imposition guideline.

The table below contains a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender.

Identify whether any combination of these or other relevant factors should result in any further upward or downward adjustment from the starting point.

Consecutive sentences for multiple offences may be appropriate where large sums are involved.

Factors increasing seriousness

Statutory aggravating factors

  • Previous convictions, having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction
  • Offence committed whilst on bail

Other aggravating factors

  • Involves multiple frauds
  • Number of false declarations
  • Attempts to conceal/dispose of evidence
  • Failure to comply with current court orders
  • Offence committed on licence
  • Offences taken into consideration
  • Failure to respond to warnings about behaviour
  • Blame wrongly placed on others
  • Damage to third party (for example as a result of identity theft)
  • Dealing with goods with an additional health risk
  • Disposing of goods to under age purchasers

Factors reducing seriousness or reflecting personal mitigation

  • No previous convictions or no relevant/recent convictions
  • Remorse
  • Good character and/or exemplary conduct
  • Little or no prospect of success
  • Serious medical condition requiring urgent, intensive or long term treatment
  • Age and/or lack of maturity where it affects the responsibility of the offender
  • Lapse of time since apprehension where this does not arise from the conduct of the offender
  • Mental disorder or learning disability
  • Sole or primary carer for dependent relatives
  • Offender co-operated with investigation, made early admissions and/or voluntarily reported offending
  • Determination and/or demonstration of steps having been taken to address addiction or offending behaviour
  • Activity originally legitimate

Step 3 – Consider any factors which indicate a reduction, such as assistance to the prosecution

The court should take into account sections 73 and 74 of the Serious Organised Crime and Police Act 2005 (assistance by defendants: reduction or review of sentence) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator.

Step 4 – Reduction for guilty pleas

The court should take account of any potential reduction for a guilty plea in accordance with section 144 of the Criminal Justice Act 2003 and the Guilty Plea guideline.

Step 5 – Totality principle

If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the overall offending behaviour.

Step 6 – Confiscation, compensation and ancillary orders

The court must proceed with a view to making a confiscation order if it is asked to do so by the prosecutor or if the court believes it is appropriate for it to do so.

Where the offence has resulted in loss or damage the court must consider whether to make a compensation order.

If the court makes both a confiscation order and an order for compensation and the court believes the offender will not have sufficient means to satisfy both orders in full, the court must direct that the compensation be paid out of sums recovered under the confiscation order (section 13 of the Proceeds of Crime Act 2002).

The court may also consider whether to make ancillary orders. These may include a deprivation order, a financial reporting order, a serious crime prevention order and disqualification from acting as a company director.

Step 7 – Reasons

Section 174 of the Criminal Justice Act 2003 imposes a duty to give reasons for, and explain the effect of, the sentence.

Step 8 – Consideration for time spent on bail

The court must consider whether to give credit for time spent on bail in accordance with section 240A of the Criminal Justice Act 2003.