Fraud

Question 1

What are the 3 offences created by the Fraud Act 2006?

Answer 1

Fraud by making a false representation (s2)

Fraud by failing to disclosure information (s3)

Fraud by abuse of position (s4)

Question 2

What offence is created by s2 of the Fraud Act?

Answer 2

Fraud by making a false representation

Question 3

What are the elements of the offence of fraud by false representation (s2)?

Answer 3

AR: Making a false representation

MR:
1. Knowledge that the representation is or may be false

and

2. Dishonesty

and

3. Intention to make a gain (for oneself or another) or to cause loss to another or to expose another to the risk of loss

Question 4

What is the actus reus of fraud by false representation? (s2)

Answer 4

Making a false representation

• ‘False’ = something untrue or misleading
• ‘Representation’
  Can be of fact, or law, or state of mind of person
  Can be express or implied
  Can be words, written, oral, defendant’s conduct

Nb. Irrelevant whether any gain actually made as a result of the false rep & whether anyone believes it

Question 5

What is a ‘representation’?

Answer 5

Express or implied representation of fact, law, state of mind of person

Can be written, oral, words, defendant’s conduct

Question 6

What may a representation relate to?

Answer 6

Fact

or

The law

or

The state of mind of the person making the representation & any other person

(Can be express or implied; words, oral, written, conduct)

Question 7

What are the 3 elements of the mens rea of fraud by false representation?

Answer 7

1. Knowledge that the representation is or may be false

and

2. Dishonesty

and

3. Intention to make a gain (for oneself or another) or to cause loss to another or to expose another to the risk of loss

Question 8

Will it be a false representation if it is in fact true?

Answer 8

No - will not be false if defendant says something they believe to be false but that is, in fact, true

Question 9

When is a representation by email made?

Answer 9

As soon as it is sent (regardless of whether victim reads it or even receives it)

Question 10

Is withdrawing money from an ATM a false representation?

Answer 10

Yes - the false representation is made when the PIN is inputted into the machine

Question 11

Is entering stolen bank details onto an internet site to purchase items a representation?

Answer 11

Yes

Question 12

What must the defendant intend as part of the mens rea for fraud by false representation?

Answer 12

Intention to MAKE A GAIN (for self or another)
- Must relate to money or property
- ‘Gain’ includes keeping something you already have where obliged to return it

or

Intention to CAUSE A LOSS to another
- ‘Loss’ includes situation where person doesn’t get what they would otherwise be expecting to

or

Intention to EXPOSE ANOTHER TO THE RISK of loss

Question 13

What is the common law test for dishonesty?

Answer 13

Ivey v Genting

1. What was the defendant’s knowledge or belief as to the facts? (subjective)
2. Given the knowledge & belief, was the defendant dishonest by the standards of ordinary people?

Question 14

What is meant by ‘gain’ in the Fraud Act?

Answer 14

Extends only to money or property
- May be real or personal property, including things in action & other tangible property

Can be temporary or permanent

Gain includes
- Keeping what you already have when you’re supposed to return it
(as well as ordinary meaning of gain)

Question 15

What is meant by ‘loss’ in the Fraud Act 2006?

Answer 15

Extends only to money or property
- May be real or personal property including things in action & other intangible property
- May be temporary or permanent

‘Loss’ includes victim not getting what they’re owed (as well as ordinary meaning)

Question 16

What offence is created by s3 Fraud Act 2006?

Answer 16

Fraud by failing to disclose information

Question 17

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

Answer 17

AR: Failure to disclose information to another where under a legal duty to do so

MR:
1. Dishonesty

and

2. Intention to make a gain (for oneself or another) or to cause loss to another or to expose another to the risk of loss

Question 18

What is the actus reus for fraud by failing to disclose information?

Answer 18

Failure to disclose information to another which D is under a legal duty to disclose

Legal duty includes:
- Statutory duty
- Contractual duty
- One arising because transaction is in good faith
- Fiduciary relationship

Question 19

When might there be a legal duty to disclose information?

Answer 19

Statutory duty

Contractual duty (express or implied terms)

One arising because the transaction is in good faith (eg. contracts of insurance)

Fiduciary relationship
- eg. Agent & principal
- eg. Trustee & beneficiary

Question 20

What is the mens rea for fraud by failing to disclose information?

Answer 20

1. Dishonesty
2. Intention to make a GAIN for oneself or another to CAUSE A LOSS to another or to EXPOSE another to the risk of loss

Question 21

What offence is created by s4 Fraud Act 2006?

Answer 21

Fraud by abuse of position

Question 22

What are the elements of the offence of fraud by abuse of position?

Answer 22

AR:
1. Occupying a position where D is expected to safeguard, or not act against, the financial interests of another

and

2. Abuse of that position by act or omission

MR:
1. Dishonesty

and

2. Intention to make a GAIN for oneself or another OR TO CAUSE LOSS to another OR TO EXPOSE another to the risk of loss

Question 23

What is the actus reus for fraud by abuse of position? (2 elements)

Answer 23

1. Occupying a position in which D is expected to safeguard, or not act against, the financial interests of another

and

2. Abuse of that position by act or omission

Question 24

When might the defendant occupy a position in which they are expected to safeguard, or not act against, the financial interests of another person?

Answer 24

‘Position’ not defined in Fraud Act but might include:
- Trustee & beneficiary

• Director & company
• Professional person & client
• Agent & principal
• Employee & employer

(Interesting: unlicensed gang-masters who abused their position by exploiting migrant workers & making unlawful deductions from their wages were found to occupy a position capable of being one in which they were expected to safeguard the financial interests of another)

Question 25

What is the mens rea for fraud by abuse of position?

Answer 25

1. Dishonesty

and

2. Intention to make a GAIN for oneself or another or to cause LOSS to another or to EXPOSE another to the risk of loss