Fraud Flashcards
Fraud
Offence under Fraud Act (FA) 2006, either way with max 10 years in Crown Court or unlimited fine or both
Definition of fraud
Fraud may be established by:
1. making a false representation
2. by failing to disclose information and
3. by abuse of position
Prosecution does not need to prove that D’s actually obtained anything by their actions, just that they intended to do so.
Mens rea: dishonesty is key element
Fraud by false representation
Actus reus: making a false rep
Mens rea:
- knowledge that rep is or might be false
- dishonesty
- intention to make a gain for self or another or to cause loss to another or to expose another to a risk of loss
A representation
- representation may relate to:
- a fact
- the law; or
- the state of mind of person making rep or any other person - representation may be express or implied
- may be:
- in words; or
- communicated by conduct.
- in writing,
- spoken or
- posted in website
False rep
Untrue or misleading
Misleading means less han wholly true and capable of an interpretation to the detriment of the victim.
Effect of representation
Prosecution need only prove that false rep was actually made (no need to prove anyone was deceived - make false rep to machine)
representation only need to be submitted (not necessarily communicated)
- Rep by email: made as soon as it is sent
- withdrawing money from case point machine: rep is made when the PIN is inputted into the machine
- Entering stolen bank details onto an internet site to purchase items is a rep
Dishonesty
Ivey v Genting Casinos test
Intention to make a gain or cause loss
- Gain and loss:
- extends only to money and property
- may be real or personal property including things in action and intangible property
- may be temporary or permanent - Gain includes:
- keeping what one has
- getting what one does not have - Loss includes:
- not getting what one might get
- parting with what one has
Fraud by failing to disclose info
- Actus reus: fail to disclose** to another person info which they are a legal duty to disclose; and
- Mens rea:
- dishonesty
- intend, **by failing to disclose info, to make gain or cause loss, or to expose another to risk of loss
Legal duty to disclose
May be imposed by:
- by statute
- term of contract (oral or written)
- a transaction of good faith (e.g. contract of insurance)
- custom of particular trade or market
- existence of fiduciary relationship (e.g. agent and principal)
Fraud by abuse of position
Actus reus:
- 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
Mens rea:
- dishonesty
- intention to make a gain for self or another or to cause loss to another or to expose another to a risk of loss
Examples of Relevant positions
- trustee and beneficiary
- director and company
- professional person and client
- agent and principal
- employee and employer
- within a faminy
- in a context of voluntary work
(even unlicensed gang masters - migrant workers)