Deception

Question 1

Deception legislation

Answer 1

CA61; S240(2):

(a) a false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and—
(i) knows that it is false in a material particular; or
(ii) is reckless as to whether it is false in a material particular; or
(b) an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it; or
(c) a fraudulent device, trick, or stratagem used with intent to deceive any person.

Question 2

Representation

Answer 2

Simester and Brookbanks:

“It must be capable of being false so it must contain a proposition of fact”.

Question 3

False representation

Answer 3

The representation must be false and the defendant must know or believe that it is false in a material particular, or be reckless whether it is false. Absolute certainty is not required and wilful blindness as to falsity of the statement will suffice.

Question 4

Deception - what is required to be proved?

Answer 4

You must prove:

• That there was an intent to deceive
• That there was a representation by the defendant
• That the representation was false
• That the defendant either:
• knew that it was false in a material particular OR was reckless whether it was false in a material particular.

Question 5

Intention to deceive

Answer 5

There must be an intent to deceive.

• *R v Morley:**
• *An intention to deceive requires that the deception is practised in order to deceive the affected party. Purposeful intent is necessary and must exist at the time of the deception.**

The recklessness mentioned in 240(2)(a) relates only to whether a representation is false in a material particular.

Recklessness - Cameron and Tipple

Question 6

R v Morley

Intent to Deceive

Answer 6

• *R v Morley:**
• *An intention to deceive requires that the deception is practised in order to deceive the affected party. Purposeful intent is necessary and must exist at the time of the deception.**

Question 7

Intent

Answer 7

In a criminal law context there are two specific types of intention in an offence. Firstly there must be an intention to commit the act and secondly, an intention to get a specific result.

R v Collister

Question 8

Examples of false representations

Answer 8

Orally: Verbally claiming to own goods that are in fact subject to a hire purchase agreement.

Documentary: Presenting a false certificate of qualification.

By conduct: Representing oneself to be a collector for charity by appearing to be carrying an official collection bag.

Question 9

A representation by the defendant - R v Morley

Answer 9

It is possible to look beyond the literal meaning of express words used by the defendant and consider whether a particular meaning can be implied from his or her conduct.

It is necessary to analyse what meaning was conveyed to the party that now complains of a false representation:

• *R v Morley:**
• *Representations must relate to a statement of existing fact, rather than a statement of future intention**

Question 10

Deception - Silence

Answer 10

As a general rule, silence or non-disclosure will not be regarded as a representation, but there are exceptions to this such as where an incorrect understanding is implied from a course of dealing and the defendant has failed to negate that incorrect understanding.

Question 11

Deception - Continuing effect

Answer 11

In many cases a representation by words or conduct may have a continuing effect. For example, entering a restaurant and ordering dinner represents that the diner will follow the normal practice and pay for the meal. If they leave without paying, the continuing representation will become false, and the obtaining of the food will come within S240.

Question 12

List some ways that knowledge of a false representation can be established.

Answer 12

S&B - Knowledge.

Knowledge can be established by:

• An admission
• Implication from the circumstances surrounding the event
• Propensity evidence

Question 13

False in a material particular

(R v Mallett)

Answer 13

The prosecution must establish either that the defendant knows or believes his representation is false in a material particular or is reckless as to whether it is false.

Material particular: an important, essential or relevant detail or item;

R v Mallett: “A matter will be a ‘material particular’ if it is something important or something that matters.”

Question 14

Deception - Omission

Answer 14

An omission is inaction, i.e. not acting. It can either be a conscious decision not to do something or not giving thought to the matter at all.

Question 15

Deception - Duty to disclose

Answer 15

240(2)(b) requires you to show that there was some material particular that was not disclosed, that the defendant was under a duty to disclose and that the defendant failed to perform that duty.

Question 16

Fraudulent device, trick, or stratagem used with intent to deceive any person

Answer 16

Fraudulent: Dishonest in the traditional moral sense

Device: A plan, scheme, or trick.

Trick: An action or scheme undertaken to fool, outwit, or deceive.

Stratagem: A cunning plan or scheme especially for deceiving an enemy, or trickery.

Question 17

What definitions and/or case laws should be included in your discussion of:

Deception

Answer 17

Definition of false representation: The representation must be false and the defendant must know or believe that it is false in a material particular, or be reckless whether it is false. Absolute certainty is not required and wilful blindness as to falsity of the statement will suffice.

Definition of representation: S&B - it must be capable of being false so it must contain a proposition of fact; R v Morley - representations must relate to statements of existing fact;

Intention to deceive: R v Morley - an intention to deceive requires that the deception is practiced;

Definition of knowledge: S&B - knowing means knowing or correctly believing; how knowledge can be established - admissions; implications from surrounding circumstances; propensity evidence;

Definition of material particular: an important, essential or relevant detail or item; R v Mallett - a matter will be a ‘material particular’ if it is something important or something that matters.

Definition of recklessness: Cameron v R; R v Tipple;

Definition of omission: inaction, i.e. not acting. It can either be a conscious decision not to do something or not giving thought to the matter at all;

Definition of duty to disclose: there was some material particular that was not disclosed, that the defendant was under a duty to disclose and that the defendant failed to perform that duty;

Definition of fraudulent: dishonest in the traditional moral sense;

Definition of device: a plan, scheme, or trick

Definition of trick: an action or scheme undertaken to fool, outwit, or deceive;

Stratagem: a cunning plan or scheme especially for deceiving an enemy, or trickery;