Fraud Flashcards
S1 Fraud Act 2006
A person is guilty of fraud under s1 Fraud Act 2006 if they are in breach of any of the sections listed in s1(2).
- s1(2)(a) section 2 (fraud by false representation),
- s1(2)(b) section 3 (fraud by failing to disclose information), and
- s1(2)(c) section 4 (fraud by abuse of position).
Fraud by False Representation (s2)
Actus Reus
- S2(2)(a) Fraud Act 2006 – A representation is false** if it is **untrue** or **misleading and
- S2(2)(b) the person making it knows it is, or might be
-
S2(3) – A representation means any representation as to fact** or **law** and includes a representation **as to the state of mind of:
- The person making the representation or
- Any other person
- S2(4) – A representation can be express (words) or implied (by conduct or words)
R v King
Fraud by False Representation
State of Mind
False Representation (s2(1)(a) as to State of Mind (s2(3)
- Used car salesman; placed stickers on odometers saying mileage readers “may not be correct”; he knew they were false (because he had altered them) so held to be a deception as to his state of mind.
R v Williams
Fraud by False Representation
Representation can be express or implied (s2(4)
Implied false representation (s2(4)
- Not saying that the Lithuanian money being exchanged at a travel agent’s was obsolete was an implied representation as to a fact i.e. that the currence was valid
DPP v Ray
Fraud by False Representation
Representation can be express or implied (s2(4)
-
An implied representation (s2(4)) can arise from the defendant’s conduct.
- A person who goes into a restaurant, orders a meal and sits eating a meal is making an implied representation you are going to and can pay for it
- If they can’t it’s a false representation
R v Barnard
Fraud by False Representation
Representation can be express or implied (s2(4)
Implied false representation (2(4)
B went into a shop and bought a book - and he was wearing the clothes of an Oxford Don (which he had stolen) - the clothes alone amounted to a false representation that he was an academic and therefore entitled to the discount that the shop offered to Dons.
R v Twaite
Fraud by False Representation
Representation can be express or implied (s2(4))
Mere silence cannot amount to a full representation (s2(4)).
Must be silence accompanied by something.
- RAF officer who applied for married quarters in June 2008 on basis he was getting married on 29th August 2008. He and fiancée moved into married quarter on 27 August 2008 but didn’t get married until 29th August 2009. Therefore, charged with fraud by false representation. No evidence he had said anything or made any representations since he moved in. Found guilty of failure to disclose postponement of the marriage. Appeals said decision was wrong as made no representations and his silence didn’t count. Could only convict if thought representations before he moved in were false.
False Representation to a machine
s2(5) Fraud Act 2006
- ‘For the purposes of this section a representation may be regarded as made** if it (or anything implying it) is submitted in any form **to any system or device designed to receive, convey or respond to communications (with or without human intervention).’
- NB this is the ONLY offence section that creates an offence of fraud via machines by virtue of S2(5)
R v Silverman
Overcharging
Fraud by False Representation
- General Rule – person entitled to charge whatever
- Unless situation of trust and confidence – does one party depend on the other for fair and reasonable conduct?
If so, and the defendant takes dishonest advantage, can be held to be an implied false representation - Watkins LJ
- Silverman had done maintenance work for over 15 years for family of 2 elderly sisters that lived together; took advantage of their reliance– doing work that was unnecessary and charging exorbitant sums.
R v Jones
Overcharging
Fraud by False Representation
- Will be a false representation if defendant implies he is charging a fair and reasonable price when knows he isn’t
- Milkman overcharging a corner shop owner for mile over 20 years. Cornershop owner realised his shop was not making a profit because of price of milk.
- Court held there was a relationship of trust and confidence and by taking advantage was a false representation.
- NB – can also be used in s4 if there is a position of trust
Fraud by False Representation s2
Mens Rea
1) Knowing that the representation is false or might be: s2(2)(b)
2) Dishonesty: s2(1)(a)
3) Intention by false rep to make gain for self or another/to cause loss to another/expose another to risk of loss: s2(1)(b)(i) & (ii)
Knowing that the representation is false or might be (s2(2)(b)
Mens Rea
False Representation
- S2(2)(b) – the defendant must know, or be aware**, that the statement is **untrue** or **misleading** or **might be
- Knowledge rather than belief - however knowledge to a doubt will be sufficient for a false representation if defendant doesn’t make it clear he is uncertain (R v Staines)
R v Staines
Knowing that the representation is false or might be (s2(2)(b)
Mens Rea
False Representation
- Recklessness with regard to a false statement requires more than mere carelessness or negligence**; there **must be an indifference to, or disregard of, whether a statement is true or false.
- A belief, however unreasonable, that the representation is true will prevent the defendant’s conduct amounting to deception.
- If a person knows the statements he is make might be false**, then he should **make that clear to the person he is making it to. If he gives a clear caveat**, then he **does not make a false statement, but a true statement.
Ivey v Genting
Dishonesty
Mens Rea
False Representation
- Defendant must make the false representation dishonestly (s2(1)(a)
-
Fraud Act doesn’t define dishonesty so apply Ivey v Genting
- what were the facts/ circumstances** as **known by the accused** **at the time?
- would reasonable decent people** **consider** the **actions dishonest?
R v Clarke
Dishonesty
Mens Rea
False Representation
Dishonesty and deception are separate issues
-
Parliament had included the element of dishonesty as well as making a false representation
- Telling a lie is not automatically dishonest
- Clarke was a PI who wrongly told potential clients he had been a member of the fraud squad; was hired on this basis and he defended it by saying that he was a very good investigator.