Criminal Law 5 - Fraud

Question 1

What elements make up a fraud by false representation offence?

Answer 1

AR:
- express or implied representation,
- as to fact, law or state of mind,
- which is untrue or misleading
MR:
- dishonesty,
- mens rea for false statement,
- intention to make a gain or cause a loss

Question 2

Does pure silence count as an implied representation?

Answer 2

No

Question 3

Can you be liable for fraud by false representation against a machine?

Answer 3

Yes - can be held to be deceiving a machine by falsely representing e.g. for an ATM, that you are entitled to withdraw that money

Question 4

What is the test for dishonesty?

Answer 4

1. D’s knowledge and belief as to facts
2. Given that, were they dishonest by standards of ordinary, decent people?

Question 5

What is the mens rea for a false statement, for fraud by false representation?

Answer 5

Intent or recklessness

Question 6

Is an actual gain or loss required for fraud?

Answer 6

No

Question 7

When can fraud by false representation arise in cases of overcharging?

Answer 7

Generally held that a person can charge whatever sum they consider appropriate
But in circumstances of mutual trust, where a party takes dishonest advantage of the other by representing a fair charge which he knows, but other doesn’t is dishonestly excessive

Question 8

What are the elements that make up a fraud by abuse of position offence

Answer 8

AR:
- position of trust;
- abuses that position (uses incorrectly or puts to improper use)

MR:
- dishonesty;
AND
- intention to make a gain or cause a loss

Question 9

What are the elements of a fraud by failure to disclose offence?

Answer 9

AR:
- legal duty to disclose;
- failure to disclose
MR:
- dishonesty;
AND
- intention to make gain or cause loss