Fraud cases involving large numbers of witnesses In this feature l online fraud l large-scale case prosecution l consumer witnesses Prosecuting by numbers Carolina Bracken and Andrew johnson offer advice on managing cases for which there are a large number of consumer witnesses t rading standards officers (TSOs) have long been accustomed to investigations involving multiple consumer witnesses, but the number of large-scale cases is increasing. The internet, in particular, gives fraudsters ready access to large numbers of potential victims, so officers increasingly face investigations that involve tens or even hundreds ofcomplainants. Using specific investigatory methods early on in the case can help achieve the best and most proportionate result, whether through a successful prosecution or out-of-court disposal.1 Growth in online fraud Many of the cases with high numbers of complaints involve fraud. This is one of the most significant growth areas of crime, and has a particular impact on the work of trading standards. Action Fraud experienced a 12per cent increase in referrals in the 12 months up to September 2016; this translates into an additional 26,318 cases, many of which will have been passed on to TSOs.2 The increase in online fraud is particularly stark. More than half of all fraud reported by adults in England and Wales is cyber-related, and this type of crime can be a challenge for TSOs for a number of reasons: l The internet offers fraudsters easy access to numerous victims far above the number that could be accessed through doorstep offences, for example l Fraudsters can target victims across several authority borders l They can use technological methods to conceal their identity l The larger number of complainants and their geographical spread means investigations are resource-intensive, both in terms of time and money. Using specific investigatory methods early on can help achieve the best result fraud by volume The size of a case is relevant for two reasons. First, the number of consumers affected can indicate the case involves fraudulent conduct, rather than simply poor ornaive practice. Consider, for example, a trader who sets up an online business. They intend to run it legitimately, but because of inexperience become overwhelmed by the demands of the business. Five consumers complain to their local trading standards department about the poor service they have received. If, at this stage, the trader stops trading, or makes significant improvements to their business practice, it is likely to indicate the complaints arose because of the traders lack of competence and care, rather than dishonesty. However, if the trader receives 20, 50 or 100 complaints and continues trading without change it is likely they have formed the dishonest intention to continue trading, knowing their business practice is flawed. In this way, it is often volume that proves dishonesty. It is useful to consider whether a case may develop into a fraud by volume scenario at the outset of the investigation. A case that involves a very small number of complaints may be resolved by way of a caution or warning. However, it is important not to reach that decision too early when, in fact, those complaints may simply be the tip of the iceberg. The type of trading may be a helpful indicator of whether there are complainants who have yet to emerge. If the trader has an online business, there are likely to be a greater number of consumers. TSOs may be able to uncover additional complaints through Action Fraud referrals, CaSE StRatEGy or complaints to the police. Additionally, Key to the overall strategy of a large case is to evidence seized from the traders premises spot the similarities early on. Once it emerges may reveal victims who have not made that the case will involve a large number a formal complaint to any authority. of consumers, it is beneficial in terms of Such consumers may have made written presentation of the case and cost effective complaints directly to the trader at the to instruct counsel early on. In that way, counsel premises. The trader may have stored county can focus on knitting together the narrative of court judgments obtained against them by the case from the outset, and ensure the large consumers, or received and not deleted quantity of material is collated in an effective email complaints from consumers. way. It also helps ensure that the person tasked Such evidence will influence an officers with presenting the evidence actually knows the evidence! view of the overall size of the complainant pool and, in turn, influence the direction of theinvestigation. fraud by volume It is important to be aware that offending may continue, even as a prosecution progresses The second reason the size of a case is relevant is because those involving more consumers create a significant investigatory burden. Investigators will need to gather, collate, analyse and act upon the large volume of material that stems from multiple sources. In addition, cases of this nature are often not static a pending investigation may not be enough to deter a tenacious defendant, giving rise to complaints being made during the investigation. Sometimes, the seemingly difficult question is asked: Where do we stop? At what stage is it appropriate to end the investigation and start a prosecution. Often, this is an overly simplistic approach to a case. It is, of course, always necessary to determine at which stage to consider if there is sufficient evidence, and whether it is in the public interest to prosecute. But that does not necessarily mean the investigation ceases. It is important to be aware that offending may continue even as a prosecution progresses. Judges are particularly unimpressed by offending that continues after authorities have become involved and during a prosecution, and this is likely to be treated as an aggravating factor in any sentencing exercise. It is often very much in the public interest to continue to gather fresh evidence as a case progresses, even though there is already sufficient evidence from which to prosecute the case. Where the complaints are broadly similar, consider collecting evidence through question and answer questionnaire statements Evidence gathering It is not that smaller cases are less important than larger ones; rather, that larger-scale cases require a different approach a team approach. Itis also key to ensure as much preparation as possible is done in the early stages of the investigation. Typically, writing a statement on behalf of a consumer requires a significant amount of contact with that person. The first draft will be prepared, and then refined and clarified and this process creates a large amount of unused material. It is an approach that may be inadequate when dealing with a larger case. When it becomes clear there is a large number of witnesses and complaints are broadly similar consider collecting evidence through question and answer, self-produced questionnaire statements. Try to create the questionnaire to target the likely areas of complaint; this will become possible once the initial few complaints have been received and the case begins to take shape. A questionnaire will also help to focus consumers evidence, and is likely to be more helpful and specific than a free-form statement. For example, you may wish to direct a consumer to give the date of their first contact with the defendant, the name of the person they spoke to, and the amount they had to pay. That initial effort will save time later on. While this approach does not prohibit you from engaging in direct contact as a follow up, it will, hopefully, reduce the need to do so. It will also make counsels preparation of the case quicker and more cost effective for example, in preparing Criminal Justice Act 1967 section 10 admissions and schedules of evidence. Try to formulate questions that will encourage the consumer witnesses to reveal valuable information they may not otherwise think to volunteer. For example, they may have recorded the purchase process through screenshots or a video. There will be no concerns about restrictions under the Regulation of Investigatory Powers Act 2000 (RIPA) where the consumer rather than the TSO has taken the recording, and it often produces first-class evidence. trial management Witnesses are more likely to cooperate with a prosecution if it causes them minimum inconvenience Having taken statements from many tens of witnesses, it then falls to you to manage the witnesses once the case gets to court. Consider carefully whether special measures are helpful, especially video links. A quick email to a court centre you can find the addresses on CourtFinder is all it takes to arrange a video link between the court in which the trial is being heard and a police station, or court centre, close to where the witness lives. In a large case that involves internet fraud, the consumers are likely to be spread out, geographically, and witnesses are more likely to cooperate with a prosecution if it causes them minimum inconvenience. 1. Out-of-court disposals are a way of dealing with a crime or offence that does not require a prosecution in court. there are a number of disposal options for a crime, offence or anti-social behaviour that if used prevents the need for the case to proceed to court. For any out-of-court disposal to be used, there must be an admission of guilt by the offender. Police and Crime Commissioners Themed Public Forum 2. Crime in England and Wales: year ending September 2016, Office for National Statistics, 19 January 2017 Credits Carolina Bracken and Andrew Johnson are barristers at 5 Paper Buildings. Images: iStock.com / AlonzoDesign To share this page, in the toolbar click on You might also like Witness support September 2017