EMBEZZLEMENT AND THE LAW

WHAT IS IT?

Embezzlement is a form of theft where the person accused of the crime is in a position of trust.  The most common example is where the accused is employed as a book keeper for a company or public body. Other forms of embezzlement can be encountered where someone is acting as a financial guardian or power of attorney for another person.

The offence can be committed by the accused person taking the money for themselves, diverting the money to another person or even if an accused person fails to account for the money when called upon to do it.  The offence is committed whenever money entrusted to someone is ‘at risk’.  This means that anyone who ‘borrows’ money entrusted to them, for whatever reason, could be guilty of embezzlement even if the money is paid back in full.

Courts will often treat embezzlement as a more serious offence than theft because the accused is has been trusted to hold money or account for it.

WHAT DO THE PROSECUTION HAVE TO PROVE?

The prosecution require to prove:-

  1. The accused held another persons money or property, with that person’s permission.
  2. The accused had a duty to account to the owner for what he did with the money or property.
  3. The accused took the money/ property for his own or did something with it that he did not have authority for.
  4. The accused’s actions were in bad faith or were dishonest.

HOW CAN I DEFEND AGAINST A FALSE ALLEGATION OF EMBEZZLEMENT?

An accused person may rely on a number of defences to such a charge including the following:-

  • the accused never held any money or property for the other person
  • the accused was gifted or otherwise given the items by the other person
  • the accused did not dispose of any money or property
  • any actions by the accused were unintentional or in good faith
  • another person took the items

WHAT ARE THE PENALTIES?

Embezzlement is a ‘common law’ offence.  This means that there is no specific penalty imposed by the government.  A Judge, Sheriff or Justice of the Peace can impose the sentence they think is appropriate.

If a person is charged with embezzlement in the Sheriff Court on summary complaint (before a Sheriff sitting without a jury), the maximum sentence which can be imposed is 12 months imprisonment, or a fine of £10,000.  Community based sentences are also available as a disposal.

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