Defence in a Fraud Prosecution

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  • #22688
    Julian Hobson
    Participant

    We are prosecuting in a case of undeclared earnings. The defence is that he told us of the change and we failed to action, no record on our files of ever receiving anything.

    Customer hasn’t appealed the decision.

    I’m terribly confused on jurisdiction here. Can the court accept such a defence so that the decision of the LA is changed ? Obviously we would still have an OP but it would be OE and still recoverable.

    I would also expect us to counter the defence with the fact that even were he to have done as he said, he can’t hide behind our failure and that were he to do so that too might well be a deliberate attempt to …….

    Any help gratefully received.

    #9135
    peterdelamothe
    Keymaster

    The two issues are completely seperate. There are far higher standards of proof in the criminal case but even if a jury / Court accepted the defence you can proceed on civil action. In other words, if you fail to get a criminal conviction, it does not mean the accused did not do it, merely that you did not PROVE it sufficiently to meet the burden on you.

    Naturally, a decision in the criminal courts is persuasive in the civil and at a Tribunal but more than once in my experience a Tribunal (and a Review Board) has ignored the criminal courts and reached a different conclusion on the evidence before it – which may of course be different.

    So, nope, your decision will not change – it is all a question of evidential proof.

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