Who Goes There?

Originally published in Solicitors Journal, 9

September 2008

Internet websites providing 'novelty' documents may seem

harmless but solicitors must be aware of their potential use in

criminal activity, says David McCluskey

Identity fraud is hardly new; after all, Zeus seduced Leda,

Queen of Sparta, in the guise of a swan. Our culture is littered

with assumed identities; scarcely a Shakespearean character could

get his lines out without changing his name or his gender, and Tony

Curtis famously adopted not one but two different personas in his

attempt to woo Marilyn Monroe's Sugar Kane in Some Like it Hot.

Let us not forget the wolf in Little Red Riding Hood, or Edward

Fox's performance in Day of the Jackal, where the would-be

assassin assumes the identity of a dead child and applies for a

passport in his name ? giving rise to the phrase

'Jackal Fraud'.

Home Office guidelines published in 2006 estimated the cost to

the UK economy caused by identity fraud at £1.7 billion, an

annual increase of £400m based on 2002 estimates. Identity

fraud is clearly a significant cause for concern for UK business,

and all commercial organisations are potentially at risk, including

solicitors' firms that rely upon proof of identity documents

for money laundering purposes before taking on new clients. The

identification documents requested by solicitors are usually a

passport and utility bill and the veracity of these documents is

rarely checked.

'Novelty' document websites

There are a number of websites offering for sale packages of

fake or 'novelty' ID documents. Commonly these include

editable templates of bank statements, utility bills, payslips and

P60s.

Such websites generally rely upon a proviso in their terms and

conditions whereby the consumer signs an agreement that all

documents on the site are for 'novelty and fun purposes

only', and are not to be used for fraud, deception or any other

criminal activity. The website disclaims any liability should the

customer then commit fraud with the purchased documents (see for

example: http://www.replicadoc.co.uk/terms.html).

However it is questionable whether, under recent fraud

legislation, the liability of such websites really does end there,

particularly where the nature of the customer belies a purpose

other than mere 'novelty'.

Is the conduct of such websites covered under fraud

legislation?

Firstly, it is important to remind ourselves that it has never

been possible to exclude criminal liability by agreement. Fake or

novelty websites that attempted to exclude their own criminal

liability by requiring customers to sign terms and conditions could

arguably not have relied upon this waiver under either old or new

authority.

However, prior to the introduction of recent fraud legislation

(in force from 2006 onwards) it might have been difficult to

classify the conduct of such websites, offering fake or novelty

documents for sale, as amounting to a criminal offence of

itself.

Section 5(2) of the Forgery and Counterfeiting Act 1981 makes it

an offence for a person to have in his custody or under his

control, without lawful authority or excuse, an instrument which he

knows or believes to be false. However, this section only applies

to specified instruments which are valuable of themselves, such as

money orders, postal orders, share certificates and travellers

cheques, rather than focusing upon the potential uses to which

documents may be put. While the type of documents generally offered

for sale by novelty document websites (utility bill, P60, bank

...