Fake Claims Don’t Pay: Sentencing Cash for Crash Frauds

Fake Claims Don’t Pay: Sentencing Cash for Crash Frauds

By Jo Morris and Libby Anderson

Any view that organised insurance fraud, such as “crash for cash”, is a victimless crime which carries low risk is a misconception. In fact, it has a nationwide impact and attracts severe penalties. Insurers and solicitors alike are involved in expensive and wasted labour. Substantial damages are paid out, the cost of which is ultimately passed onto the public through their insurance premiums. Innocent motorists and road users are placed at risk in staged collisions. The organised nature of these conspiracies and the relatively high sums obtained are likely to render the matters category one offences and attract lengthy custodial sentences.

The Association of British Insurers estimate that in 2016 alone fraudulent insurance claims exceeded £1.3 billion, across some 125,000 detected bogus claims. In the short term, insurance companies are liable and a view has therefore taken hold that a profitable company can carry the loss. In the long term, the effect of “cash for crash” fraud is greatly to increase the cost of insurance for the millions of honest drivers who pay to insure their vehicles. Moreover, cash for crash can involve the submission of entirely fictitious claims. It can also involve staged collisions where unsuspecting motorists are targeted by the conspirators by means of pulling in front of their vehicle and sharply applying the brakes. Such motorists are placed at risk of injury, blamed by the conspirators for driving into them, and their premiums are affected because of the existence of a fault claim.

Conspirators should also be aware that these offences lead to condign punishments. In Hillaman and Naqshbandi [2013] EWCA Crim 1022, the Court of Appeal confirmed that frauds of this kind merit deterrent sentences. As a consequence, Judges have consistently acknowledged both the cost to the insurance industry and the wider public, and the need to discourage future fraudsters from endangering other road users. In addition, the court can make ancillary orders to prevent the commission of future crimes and protect the public.

These offences will often be considered to be high culpability. Organised insurance fraud could not be more sophisticated and will often have been conducted over a long period of time and involve multiple victims. One element that may reduce culpability is the role played by an individual defendant. A ringleader might expect to be dealt with more harshly than a mere subordinate. Where an individual has become involved through coercion, intimidation, or exploitation, or has participated in a minor way without any real knowledge of the extent of the conspiracy, culpability will be lower. Nevertheless, that still leaves at least three aggravating features on the current Sentencing Guidelines. In the case of Davis [2015] EWCA Crim 845, a woman of good character with vulnerable dependents only had her sentence reduced from sixteen months to nine months because she had unusual personal mitigation.

The level of harm caused is generally determined by the value of the claim which would be fact specific. However, a cash for crash scam will usually involve very large sums of money as the entire purpose is to maximise the value of any claim. It will also usually have continued for some time as the very mischief of this type of crime is that it is difficult to detect. Also, manufactured collisions do carry other dangers. In February 2017, four defendants in Hussain & Ors were sentenced to a total of thirty seven years for offences of manslaughter, conspiracy to commit fraud and perverting the course of justice after they caused an elderly lady fatal injuries when they struck her vehicle in a cash for crash incident.

Offenders should note that there are factors increasing the seriousness of the sentence to be found in organised insurance fraud. There is a clear impact on the wider community, not only because of the increased premiums but also the danger that is caused by a road traffic collision and the delays and inconvenience that flows in consequence. In the case of staged collisions where innocent motorists are blamed, the attempt to place the blame upon others is another factor that aggravates.

Note should be taken of the ancillary orders available too. It may be appropriate to make a serious crime prevention order for up to five years to protect the public by preventing, restricting or disrupting involvement by the defendant in further serious crime. Such orders can carry onerous restrictions.

A confiscation order under the Proceeds of Crime Act 2002 may be made upon application by the Crown. This will take into account the amount of benefit derived from the fraud, and the figure the defendant has available. The court may order the defendant to pay compensation to the victim. Where the defendant cannot afford to make such payments, the court may order compensation to be paid from any amount confiscated.

The court has a general power to disqualify a defendant from driving (s.146 PCCSA 2000) following any conviction. A deprivation order may be made with respect to the vehicle or vehicles used in the commission of a cash for crash fraud (s.143 PCCSA 2000). The court may also have to sentence for other offences committed as part of the fraud, for example, dangerous driving.

The sentence and ancillary orders passed will turn upon the facts of each case. Some conspiracies can be very minor because they are detected early. Others can be serious because they have escaped attention for a longer time. Yet more can have unintended consequences, such as the endangerment or injury of other road users. Cash for crash frauds cause large financial loss to the insurance industry which is passed onto the consumer. They also drain the public purse as the taxpayer has to pay for the police and counter-fraud investigations that they prompt. To discourage future offending, the court may pass deterrent sentences. As can be seen from recent examples, the sentences handed down are far from negligible. Participants in cash for crash frauds face a very real risk of a lengthy custodial sentence.