Fraud

Question 1

What are the three ways fraud can be committed under the Fraud Act 2006?

Answer 1

• fraud by false representation
• fraud by failure to disclose
• fraud be abuse of position

Question 2

What is the actus for fraud for false representation?

Answer 2

• just a false representation
• no need for someone to be actually deceived

Question 3

What is the MR for fraud by false representation?

Answer 3

• dishonesty
• mens rea for the false statement
• intention to make a gain or cause a loss

Question 4

What is a representation?

Answer 4

Statement as to fact or law

Including statement as to state of mind of:

• the person making the representation or
• any other person

Question 5

Does a representation have to be express?

Answer 5

No can be express and implied

Question 6

When will a representation be false?

Answer 6

• if it is untrue or misleading

Question 7

How can an implied representation arise?

Answer 7

• what the defendant say
• the defendant’s conduct

Question 8

Will pure silence ever amount to a representation?

Answer 8

No - pure silence without an accompanying action cannot amount to a representation

Question 9

When will statements as to expressing beliefs or opinions amount to a false representation?

Answer 9

Most likely where D is in a better position to express the belief or opinion than the other party

Question 10

When will a representation as to an intention to do something amount to a false representation?

Answer 10

If D states they have intention to do something when they have no such intention

Question 11

When will overcharging amount to false representation?

Answer 11

Where there is a relationship of mutual trust and one party takes advantage of that by overcharging the other

Question 12

Must a false representation be made to another human?

Answer 12

No it can be made to a machine

Covers those using stolen credit cards and PIN codes

Question 13

What is the test for dishonesty?

Answer 13

(1) What was the defendant’s knowledge and belief as to the facts?

(2) Given that knowledge and those beliefs was the defendant dishonest by the standards of ordinary decent people?

Question 14

Will deception always amount to dishonesty?

Answer 14

No behaviour that amounts to deception will not always amount to dishonesty

Question 15

What is the mens rea with regards to the false statement?

Answer 15

The defendant must know or be aware that the statement is untrue or misleading

Will be satisfied if D is subjectively aware of the possibility that what they are saying or implying is false

Question 16

What will amount to recklessness in making an untrue or misleading statement?

Answer 16

If D is indifferent, disregarding of, whether the statement is true or false

Must be greater than just carelessness or negligence

Question 17

When will a false statement not meet the mens rea requirement that D knows or is reckless as to whether statement is true or misleading?

Answer 17

If D believes, however unreasonably, that the representation is true

D gives a clear caveat to the statement they make

Question 18

What amounts to intention to make a gain or cause a loss for purposes of false representation?

Answer 18

• D intends to make a gain for themselves
• D intends to make a gain for someone else
• D intends to cause a loss to another
• D exposes someone to risk of loss

No actual gain or loss needs to happen

Question 19

What can be gained/loss?

Answer 19

Only money or property (temporary or permanent, real or personal including things in action and other tangible property)

Question 20

What does gain include for the fraud by false representation?

Answer 20

• keeping what one has
• getting what one does not have

Question 21

What does loss include for fraud by false representation?

Answer 21

• no getting what one might get
• parting with what one has

Question 22

What is the actus reus for fraud by failure to disclose?

Answer 22

• existence of a legal duty
• failure to disclose

Question 23

According to Law Commission guidance, when is a duty likely to arise for the purposes of fraud by failure to disclose?

Answer 23

• duty arising from statute
• duty arising within a transaction of utmost good faith
• contained in the express of implied terms of a contract
• arising from a custom in a particular trade or market
• arising from a fiduciary relationship

Question 24

What must the prosecution do once it has established that there is a legal duty to disclose?

Answer 24

They must prove that D has failed to disclose the information to the other party

Question 25

What two mens rea requirements are there for fraud by failure to disclose?

Answer 25

• dishonesty
• intention to make a gain or loss

(same as fraud by false representation)

Question 26

What is the AR for fraud by abuse of position?

Answer 26

• D must occupy position which requires them to look after victim’s financial wellbeing
• D must abuse that position

Question 27

What is the MR for fraud by abuse of position?

Answer 27

• dishonesty
• intention to make a gain or loss

(same as fraud by false representation)

Question 28

What situations will mean that D is in a position where they are required to look after V’s financial wellbeing?

Answer 28

• trustee to beneficiary
• director to trustee
• professional person to client
• employee to employer
• partner to partner
• may arise in families
• voluntary work

(Essentially where fiduciary or something akin to fiduciary relationship)

Question 29

What will amount to abuse of that position for fraud by abuse of position?

Answer 29

D uses incorrectly or puts to improper use the position held in a manner that is contrary to the expectation that arises because of that position

Question 30

Must there by an act of abuse for fraud by abuse of position?

Answer 30

No there can be an omission eg failure on behalf of employee who has duty to collect payment on behalf of their employer