Criminal 5 - Fraud and Criminal Damage

Question 1

Fraud

Answer 1

false representation (s2)
failure to disclose information (s3)
abuse of position (s4)

Question 2

False representation (s2)

Answer 2

Dishonestly make a false representation and intend to make a gain for themselves or another or cause loss or to expose another to a risk of loss

Question 3

Making a false representation

Answer 3

• untrue or misleading
• knows it is, or might be untrue or misleading (MR)

Question 4

Representation (AR)

Answer 4

s2(3)-
a fact, the law or the state of mind of the person making the representation and any other person.
s2(4)-
implied or express

Question 5

When is a representation false?

Answer 5

Question of fact for jury.
Not if D believes false but turns out to be true.
No need anyone deceived, just that the representation was false (even submitting to a machine).
Does not have to be received (when it is sent).

Question 6

Mens rea

Answer 6

Dishonestly to cause gain or loss.
- Common sense
- If not
-Ivey v Genting (subjective then objective).

Question 7

Gain or loss?

Answer 7

Has to be BY the representation gain or loss intended.
Gain can be keeping what one has (mitigating loss).

Question 8

Failure to disclose (s3)

Answer 8

S1
-Dishonestly fail to disclose to another person information which they are under a legal duty to disclose
- Intend by failing to disclose the information to make a gain for themselves or another or to cause another loss or to expose another to a risk of loss.

Question 9

Duty?

Answer 9

• by statute
  -terms of a contract
  -a transaction of good faith
  -financial relationship
  -customs of a particular trade
  -fiduciary relationship

Question 10

Mens rea?

Answer 10

Mirrored in s2

Question 11

Fraud by abuse of position

Answer 11

S4-
(a) occupy a position in which they are expected to safeguard, or not to act against, the
financial interests of another person;
(b) dishonestly abuse that position; and
(c) intend, by means of the abuse of that position to make a gain for themselves or another,
or to cause loss to another or to expose another to a risk of loss

Question 12

AR

Answer 12

Occupying a position in which D is expected to safeguard, or not to act against the financial interest of another person
- Abuse of that position by act or omission

Question 13

MR

Answer 13

Dishonesty
Intention to make a gain for self or another or to cause loss to another to expose another to a risk of loss.

Question 14

Positions?

Answer 14

trustee and beneficiary;
* director and company;
* professional person and client;
* agent and principal;
* employee and employer.

Widely interpreted - not just where a specific fiduciary duty owed.

Question 15

Dishonesty?

Answer 15

Mirrored in s2.

Question 16

Criminal damage

Answer 16

Simple criminal damage (s1(1)
aggravated criminal damage (s1(2))
simple arson (s1(3) and s(1(1))
aggravated arson (s1(3)) and s(1(2))

Question 17

Basic definition

Answer 17

A person who without lawful excuse destroys or damages any property belonging
to another intending to destroy or damage any such property or being reckless as
to whether any such property would be destroyed or damaged shall be guilty of an
offence.

Question 18

Actus reus

Answer 18

(a) destroy or damage
(b) property
(c) belonging to another
(d) without lawful excuse.

Question 19

Damage and Destruction?

Answer 19

Physical harm and impairment of the value or usefulness of property.
Damage - matter of degree and fact.
Drawing on pavement (Hardman v Chief Constable of Avon and Somerset Constabulary)
Spitting on officer’s raincoat *could not be removed - A(a Juvenile) v R (1978)

PHYSICAL HARM
PERMANENT
TEMPORARY
IMPAIRMENT OF VALUE OR USEFULNESS
+
EXPENSE INCURRED

Question 20

Property?

Answer 20

• tangible property.
  Animals if tamed or ordinarily kept in captivity, being reduced into possession (rabbit that is snared).
  Wild animals and plants cannot be property.

Question 21

Belonging to another

Answer 21

Legal ownership
Or S10(2)-
custody or control
proprietary right or interest
a charge

Question 22

MR?

Answer 22

• Simple criminal damage - intentionally or recklessly. Knowledge or belief it belongs to another.
  Subjective test (R v G 2003*Fire).

Question 23

Lawful excuse

Answer 23

Does not apply to aggravated criminal damage.
Belief in consent or believed they would have consented (s5(2)(a))- subjective test

Need of protection (s5(2(b))-
Was D’s (real) purpose the protection of property? – objective
* If yes, did D honestly believe:
– the property was in immediate need of protection; and
– the means adopted were reasonable? – subjective

Question 24

Arson

Answer 24

Same as simple criminal damage but BY FIRE

Question 25

Aggravated criminal damage

Answer 25

Section 1(2) CDA 1971 - intent to endanger life.

Question 26

Differences?

Answer 26

(a) The property that is damaged or destroyed may belong to either the defendant or to
another. This contrasts with the actus reus for simple criminal damage where the property
must belong to someone else.
(b) The statutory defence of lawful excuse does not apply.

Question 27

Additional mens rea?

Answer 27

Intent or recklesness as to the endangerment of life

Question 28

Aggravated arson

Answer 28

Adding fire to an aggravated criminal damage action.