This guide is maintained as a current resource for September 2026 and covers only the laws of England and Wales. Information is for general guidance, not legal advice. Consult a qualified solicitor for advice specific to your situation.
Comprehensive guide to how fraud offence charges are decided by prosecutors in England and Wales, explaining the legal framework, evidential and public interest tests, charge selection under the Fraud Act 2006, and practical considerations for victims and defendants.
When fraud is suspected in England and Wales, the decision about whether to bring criminal charges does not rest solely with the police. Prosecutors working for the Crown Prosecution Service (CPS) evaluate the evidence and decide whether it is appropriate to charge someone with a fraud offence under the Fraud Act 2006 or related legislation. This article explains how fraud charges are decided, the legal framework prosecutors follow, the key tests applied, and what factors influence charging decisions. It also outlines procedural steps and explains rights and practical considerations for victims and those under investigation.
What Is a Fraud Offence?
The Fraud Act 2006 sets out broad criminal offences for dishonest conduct intended to secure a gain, cause loss, or create a risk of loss, including:
- Fraud by false representation (section 2)
- Fraud by failing to disclose information (section 3)
- Fraud by abuse of position (section 4)
- Possession or making/supplying articles for use in fraud (sections 6 and 7)
- Participation in a fraudulent business (section 9)
- Obtaining services dishonestly (section 11)
These provisions cover a wide range of conduct that results in financial or other dishonest advantage. No actual loss or gain need have occurred for an offence to be committed; the defendant's intention is a crucial element.
The Prosecutor's Role and the Code for Crown Prosecutors
In England and Wales, prosecutors at the CPS make charging decisions independently of the police, applying the Code for Crown Prosecutors. This Code is a statutory framework setting out principles that must govern prosecutorial decisions. Its purpose is to ensure that decisions are fair, transparent and consistent across different types of criminal cases.
The Code requires prosecutors to apply two key tests before charging:
- The Evidential Test – Is there sufficient admissible evidence to provide a realistic prospect of conviction?
- The Public Interest Test – Is prosecution in the public interest, considering factors such as seriousness, harm, and proportionality?
If either test is not met, fraud charges should not be brought.
Step‑by‑Step: How Fraud Charging Decisions Are Made
1. Evaluation of Evidence (Evidential Test)
Before any charge, prosecutors must assess whether the evidence can realistically lead to conviction. This includes reviewing all material gathered by police, such as witness statements, financial records, electronic data, correspondence, and expert reports. The prosecutor also considers whether any conceivable defence would undermine the evidence.
The standard is objective: prosecutors must be confident that a reasonable jury or judge could be persuaded to convict beyond reasonable doubt. If evidence is weak, incomplete, or unreliable, prosecutors may decline to charge, ask for further investigation, or advise alternative disposal. In fraud cases, complex evidential assessment often involves forensic analysis of financial and digital records.
2. Assessing Public Interest
Even where evidence is sufficient, the CPS must decide whether prosecution is in the public interest. Factors influencing this include:
- The seriousness of the alleged offending, including financial scale and impact on victims.
- The harm caused or risked, especially where vulnerable people are affected or systemic loss is significant.
- Mitigating factors such as age, health, or cooperation with authorities.
- The context of the offence, including whether civil or regulatory remedies are more appropriate.
For example, prosecuting large‑scale fraud against public funds or multiple victims is typically in the public interest, whereas minor, isolated dishonesty may not justify formal criminal proceedings.
3. Selection of Appropriate Charges
Fraud offending can take many forms and may overlap with other criminal offences such as theft, false accounting, or conspiracy to defraud. Prosecutors must choose charges that accurately reflect the criminality and afford courts appropriate sentencing powers. Charges should be as straightforward as possible to assist the court and trial process.
In cases involving benefit or tax credit fraud, prosecutors may decide between specialist social security offences and general fraud charges based on statutory criteria and sentencing considerations. For instance, theft or fraud charges may carry higher maximum penalties when the conduct is serious or involves substantial sums.
In serious or complex fraud, prosecutors may also apply additional guidance when negotiating pleas or structuring charges to align with legal elements and prosecution objectives. Charges may be adjusted before trial to reflect evolving evidence.
Other Prosecuting Authorities
Although the CPS handles the majority of fraud prosecutions, other authorities such as the Serious Fraud Office (SFO) may take the lead in particularly large or complex cases, especially where there are international elements, regulatory issues, or allegations against senior executives. These authorities also apply the Code and similar principles, but may have specialised procedures appropriate for large‑scale financial crime.
Practical Considerations
Victims and Reporting Fraud
Victims play an important role in fraud cases. Timely reporting to police and provision of evidence such as bank statements or correspondence can assist charging decisions. However, prosecutors make decisions based on evidence, not victim preference, and victims do not control whether a prosecution proceeds.
Suspects and Legal Representation
Individuals under investigation should understand that prosecutors will evaluate all material, including any representations made by defence representatives. Seeking early legal advice can help clarify issues, ensure fair treatment during interviews, and address matters such as bail and disclosure.
Pre‑Charge Advice and Continued Review
In complex fraud investigations, police investigators may seek pre‑charge advice from the CPS to ensure evidential issues are addressed before final recommendation to charge. Even after a charging decision, prosecutors continue to review cases as new evidence or information emerges.
Final Thoughts
Deciding whether to charge someone with a fraud offence in England and Wales is a structured process governed by statutory law and prosecutorial principles. Prosecutors apply the Code for Crown Prosecutors, conducting detailed assessments of evidence and public interest before authorising charges under the Fraud Act 2006 or related provisions. This ensures that only cases with sufficient evidence and appropriate justification proceed to court. Understanding this process helps victims appreciate how decisions are reached and assists defendants and practitioners in navigating complex fraud matters.
