Legal System Public Law And Criminal Litigation Assignment

Task 1

Subject: Fraud Allegation – Client: Ryan Elbrook (FEH/2024/ETE1)

Dear Ronke,

Identification of the Relevant Fraud Offence

Upon a case review of the information regarding Ryan Elbrook’s case followed by subsequent legal research, it’s most likely that abuse of position fraud (section 4) is the most appropriate offence under the Act 2006 (Legislation.gov.uk, 2021). As part of a fiduciary role of trust, Ryan was given power of attorney over John Selwood’s money. The claims involve withdrawing considerable money from John’s account without a reasonable excuse. A statement from Ryan’s ex-partner, Michelle Grant, reveals that Ryan had previously said that he had taken money from an ‘uncle’ and that a bank employee had raised concerns about his withdrawal pattern. These details indicate that Ryan used his control over John’s money for his benefit, which is the most suitable charge under section 4 of the Fraud Act 2006 (Legislation.gov.uk, 2021).

Legal Elements and Application to Ryan’s Case

Under section 4, the prosecution has to prove that Ryan was in a position where you would expect him to act in John’s financial interests, that he abused this position, that his actions are dishonest and that he intended to gain financial or cause John financial loss.

Furthermore, as power of attorney, Ryan put him in a position of trust and obliged him to act in John’s best interests. The question is, however, whether his actions amount to an abuse of this position (Fischer et al., 2021). Acts performed by John on account and about the money in his account, coupled with John’s inability to explain his possession of £500 in cash, suggest that John may have used the money from his account in a manner not authorized by him. Further, dishonesty is an essential part of this case and will be tested by the test set out in R v Ivey [2017] UKSC 67 ([2017] UKSC 67). First, the court will decide on Ryan’s understanding of what happened: whether he accepted that John would have appreciated the monies more than the last ticking clock he’s been saving.

Assessment of the Likelihood of Conviction

The evidence available points towards a significant risk of conviction for Ryan. The Prosecution will then rely on the large and unexplained withdrawals from John’s account, Paul Selwood's concerns, and the witness statements written by Michelle Grant and the bank employee (Dover District Council, 2021). Together, these elements may constitute a pattern of conduct that shows dishonesty and abuse of position.

Ryan’s defence appears to be faced with a big challenge in that he cannot give an acceptable explanation as he did during his police interview regarding the cash in his possession. Under the Criminal Justice and Public Order Act 1994, he might be said to have drawn an adverse inference arising from his failure to provide a satisfactory account (Daly, 2021). If he cannot furnish financial records or any other documentation proving that John ordered him to do so, his position may be weakened further. It is identified that John’s dependency on Ryan and John’s old age could also act as a contributor. According to the Fraud, Bribery and Money Laundering Guidelines by the Sentencing Council, fraud offences involving a vulnerable victim and a breach of trust are likely to be more serious (MacPartholán, 2017).

Potential Defence and Mitigating Factors

Either John consented to the financial transactions, or the money was withdrawn or otherwise taken and used in John’s interests, which could be in the defence of Ryan. This could challenge the prosecution’s case if there is documentation to prove John authorised the withdrawals or if John can state what happened (Kotecha, 2020). Furthermore, suppose Ryan can show that the money was spent on John’s care or household expenses.

Additionally, the fact to be considered is whether Ryan acted under the terms of the power of attorney given to him (Wood and Lichtenberg, 2018). An attorney’s duties are set out under the Mental Capacity Act 2005 and the Office of the Public Guardian’s Code of Practice, particularly the need to keep financial records and act in the donor's best interests.

Conclusion

Considering everything we know at the present time, Ryan is at a very substantial risk of being charged with fraud by abuse of position under section 4 of the Fraud Act 2006. The unexplained financial transactions, as well as John's lack of authorisation to make the transactions, will form the basis of the prosecution that Ryan dishonestly abused his power of attorney for personal gain.

Best regards,

Trainee

Task 2

Subject: Trial Preparation – Admissibility of Evidence & Inferences from Silence in Ryan Elbrook’s Case

Dear Ronke,

Admissibility of Michelle Grant’s Statement

The problem with Michelle Grant’s statement is that she said she would not give evidence in person because she was too anxious. The first issue is whether her statement can be adduced in evidence at trial under the hearsay provisions of the Criminal Justice Act 2003 (CJA 2003) (UK Parliament, 2018).

Under section 114(1) of the CJA 2003, hearsay evidence, which is a statement made outside of court and upon which the truth of its contents relies, is usually inadmissible unless it is eligible for admission under a statute, it is admissible under a common law rule or admits in the interests of justice (Crown Prosecution Service, 2019). In this case, section 116 of the Statutory Code is the most relevant statutory exception that allows hearsay evidence to be accepted if the witness cannot testify in person, as long as the other conditions mentioned in the section are complied with.

Section 116 applies only if Michelle is unavailable because of one of the matters in section 116(2). In this case, the most relevant would be that Michelle cannot make it because she is in fear (Crown Prosecution Service, 2019). However, section 116(2)(e) says that fear alone will not always be enough; the court must be sure that admitting the statement is in the interests of justice. In addition to the reliability of that evidence, the importance of the evidence, and the ability of Michelle to give evidence (under section 116(4), such as through special measures consisting of screens or live links). Suppose the court finds that Michelle suffers from a genuine and serious cause of anxiety which would impede her from giving evidence and that her evidence is necessary in any other case. The statement may be admitted (National Institute for Health and Care Research, 2021).

Suppose Michelle’s statement is to be used by the prosecution (without Michelle as a witness). In that case, the defence may seek to take part in an argument under section 78 of the Police and Criminal Evidence Act 1984 (PACE 1984) that such hearsay evidence is unfair to allow without an opportunity for cross-examination (Home Office, 2018).

Significance of Ryan’s Silence During His Police Interview

Ryan’s report of declining to respond when asked about the cash in his possession could fall foul with the Criminal Justice and Public Order Act 1994 (CJPOA 1994) section 34. This provision allows a jury to draw an adverse inference from the defendant’s failure to speak to the fact police later so testify about if certain conditions are met (Home Office, 2018).

• To draw an adverse inference the prosecution has to establish that:
• As Ryan was, he was under caution at the time of the interview.
• He does not mention a fact to which he later will rely in court.
• The fact per se is something he could reasonably have been expected to have referred to during questioning.
• He was allowed to have representation or legal advice, or he was afforded legal representation.

However, Ryan's silence could have justified that, which the defence may have used. The factor of remaining silent if legal counsel has advised them would be mitigating in that defendants are entitled to follow legal counsel’s advice (Snow et al., 2023). Furthermore, if Ryan’s confusion or distress at the time of questioning is established, it could also be argued that his failure to respond cannot be attributed to him.

However, case law indicates that courts usually permit inferences against a defendant if that defendant does not speak about a critical aspect and provides a subsequent explanation that could have been volunteered earlier (LYON and DENTE, 2018). However, in the case of R v Condron [1997] 1 WLR 827, it was confirmed that an inference could still be drawn simply based on silence, even if the suspect allegedly acted on legal advice (Al-Rawahi, 2019).

Allowing the adverse inferences to come out at trial would be catastrophic to Ryan’s credibility. The defence would likely argue that an innocent person would not have declined to explain why they had such enormous cash, but Ryan refused to explain himself (Alm, 2019).

Conclusion

The court could deem admissible Michelle Grant’s statement under the CJA 2003 conditionally if it decides that her extreme anxiety renders her unable to testify in person and that admission of her evidence is in the interests of justice. However, such admission could be questioned on the grounds of hearsay, and its prejudicial effect outweighs its probative value where Michelle’s protectability is questionable. The defence can qualify the weight of that statement by showing it has not been subjected to cross-examination.

Best regards,

Trainee

Task 3

Prepared for: Ronke Oderu

Subject: Evaluation of Offence Seriousness, Aggravating and Mitigating Factors, and Sentencing Considerations

Evaluation of the Seriousness of the Offence

When assessing his seriousness, Ryan Elbrook’s culpability and the damage he has caused must be considered. It is a serious offence under the Fraud Act 2006 as the person committing the fraud has acted under penalty of abuse of trust, mainly when the victim is vulnerable (Crocker et al., 2017).

Ryan’s degree of responsibility, intent and the abuse of his position to provide support are all factors used to ascertain his culpability. Ryan was in a position of trust as he was the holder of power of attorney over John Selwood’s finances (Ebner, Pehlivanoglu and Shoenfelt, 2023). His role as a financial advisor supports the idea that he had a professional duty to act honestly in John’s best interest. According to the pre-sentence report, Ryan knowingly took money from John’s account for personal use. This is a deliberate dishonest act instead of accidental or negligent misuse of funds (Ebner, Pehlivanoglu and Shoenfelt, 2023). Ryan's point that John wouldn't have minded, but he didn't explicitly grant permission or the traces of such vast withdrawals step over the line into abuse of position. The guilty verdict suggests he is still denying he is dishonest and contravenes the guilty verdict (Leggett, 2019).

It should also take into account the harm caused by the offence. John Selwood is an elderly, dependent man who depends on others for his care, and the impact on his finances is very significant (Baker et al., 2018). The more severe the offence is, the more vulnerable the theft of funds disadvantages the person. In addition, the court may consider the emotional stress/ distress to John (and his son, Paul Selwood), who reported the incident as aggravating factors. Another element is the potential for broader community impact, as financial crimes against the elderly can instil fear and diminish public confidence in the trust of those charged with financial responsibilities (Dominguez et al., 2021).

Mitigating Factors

Immediately following his conviction, which has seen him suspended from his job at Lawton Estates, Ryan is now facing serious personal and financial difficulties (Button et al., 2024). Further, the court may be concerned that his loss of employment means he has no income, which will immediately hinder him from being able to support his partner, Jessica, and their daughter, Elsie. Suppose a custodial sentence would be a source of significant hardship for Ryan’s child. In that case, his responsibilities towards his family can be considered as being in favour of a more lenient sentence (Bregant, Wellbery and Shaw, 2019).

Ryan has also said he is open to working with rehab efforts, saying he will not act under power of attorney again and that the first time he will ask for power of attorney will be if, and only if, he is incapable of doing so. The readiness of the offender to face their behaviour is considered by the courts when determining an appropriate sentence (Wood and Suzuki, 2024).

However, Ryan has a previous conviction, but in that case, it was some time ago. The court will not place so much weight on his prior conviction if there is a significant gap between offending and not (Hamer and Crofts, 2023). In addition, he pleaded not guilty and has been loyal to the trial process, not obstructing it or trying to influence witnesses, which would have been aggravating factors in their own right.

Likelihood of Sentence Reduction for Plea

Ryan did not plead guilty, which reduces the chance of a plea bargain reducing his sentence. Under the Sentencing Council’s guidelines regarding guilt pleas, if defendants plead guilty as early as possible, up to a third of their sentence can be removed (Roberts and Pina-Sánchez, 2021). However, Ryan maintained his not-guilty plea throughout the trial, depriving him of subtraction.

A lesser sentence would have been available if Ryan had agreed to plead guilty before trial. Despite this, the court will not offer the reduction for an early plea since he went to trial and was subsequently convicted (HELM, 2021). The only mitigating factor would be if Ryan showed remorse and a desire to change his ways, which he is unlikely to do to the extent that a guilty plea would.

Sentencing Considerations and Conclusion

Considering the high level of his culpability and aggravating factors, Ryan will probably be given a custodial sentence. The basis for sentencing fraud based on abuse of trust is financial damage and the degree of culpability (Freeman, 2024). Ryan has placed himself in a position of trust, and his offending has impacted a vulnerable victim and as such, is at risk of a sentence within the medium to high end of the sentencing guidelines.

His sentence would be closer to the upper end: several years in prison if the court considers his former conviction, lack of remorse and breach of trust (Helm, Dehaghani and Newman, 2021). However, mitigating factors can include the fact that he is a primary carer, his financial hardship, and his willingness to work with probation services, which may support a less severe sentence, which might be a suspended sentence or a community order if the court believes that a prison sentence would place undue hardship upon his family.

Furthermore, his refusal to plead guilty will lessen the odds of diminishing the sentence, as will the fact that he has a previous conviction. The court will find that if he has done so because he is in financial difficulty, then the fact that he has done so does not justify it (UK Parliament, 2025). The custodial sentence is at least 18 months to 3 years, the latter ending up being up exceptional leave as a specified percentage of the custodial sentence, which will depend on the extent of financial harm and the judge's view of the aggravating and mitigating circumstances in the case. I will review cases, law, and sentencing precedents and refine our approach for the hearing. If any other analysis is required, please let me know.

Best regards,

Task 4

Date research was conducted	Source used	Database/website used to access source	Keywords used to help locate the source	Description of source	Quality of research using PROMPT criteria
05/02/2025	Fraud Act 2006, section 4	www.legislation.gov.uk	Fraud, abuse of position, Fraud Act 2006	This is the statutory provision defining fraud by abuse of position. It outlines the elements of the offence, including dishonesty, abuse of a position of trust, and intent to gain or cause loss.	P: The source is a primary legal document with a clear structure, making it easy to interpret and apply. R: This source is highly relevant as it provides the exact legal framework under which Ryan was charged. O: As legislation, it is an authoritative source. M: This criterion is not applicable, as the statute is a direct source of law. P: The UK government maintains this website, ensuring reliability. T: The Act is up to date and reflects the current legal position.
05/02/2025	R v Ivey [2017] UKSC 67	Westlaw UK	Fraud, dishonesty, R v Ivey, dishonesty test	This case established the modern test for dishonesty in criminal law. The Supreme Court ruled that dishonesty should be assessed by determining the defendant’s knowledge of the facts and then applying an objective test of whether their actions were dishonest by ordinary standards.	P: The judgment is clearly structured and contains an in-depth analysis of dishonesty. R: It is highly relevant, as Ryan’s case hinges on whether he acted dishonestly. O: This is a Supreme Court decision, making it binding precedent. M: This is a leading case on dishonesty and applies across multiple areas of fraud. P: The source is reliable as it is an official court judgment. T: The case remains good law and is widely cited in fraud cases.
06/02/2025	Sentencing Council: Fraud, Bribery, and Money Laundering Offences Guidelines (2023)	www.sentencingcouncil.org.uk	Sentencing guidelines, fraud offences, abuse of position	These guidelines outline the factors courts consider when sentencing fraud offences, including culpability, harm, aggravating factors, and mitigating circumstances. They also provide starting points and ranges for sentencing decisions.	P: The guidelines are well-organised and structured for practical application. R: They are directly applicable, as they inform sentencing decisions in cases like Ryan’s. O: The Sentencing Council is the official body responsible for setting sentencing standards, making this a highly authoritative source. M: The guidelines apply consistently across courts in England and Wales. P: The Sentencing Council regularly updates its guidelines to ensure they reflect current legal principles. T: The guidelines are up to date and relevant for 2025 sentencing practices.

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