Fraud Flashcards
what type of offence is this?
either-way
what is the max sentence?
- 10 years imprisonment, unlimited fine or both
how can fraud be committed?
o S1(2) by making a false representation
o S1(3) by failing to disclose information
o S1(4) by abuse of position
re: false representation
what is the AR?
- Making a false representation
re: false representation
what is the MR?
o Knowledge that the representation might be false (i.e. they either know it is false or know it might be)
o Dishonesty
o Intention to make a gain for self or another or to cause loss to another or to expose another to a risk of loss
re: false representation
when is a representation false?
- S2(2) a representation is false if:
o It is untrue or misleading; and
o The person making it knows that it is, or might be, untrue or misleading
re: false representation
what may the representation relate to?
o A fact;
o The law; or
o The state of mind of the person making the representation and any other person
re: false representation
how may the representation be made?
express or implied and by words (inc. writing, spoken, posted etc) and by conduct
re: false representation
who determines whether a representation was made?
the jury
re: false representation
what do the prosecution need to prove?
The prosecection only need to prove the false representation was made, not that anyone was actually decieived by it
Therefore, the false representation could be made to a computer and the offence would be satisfied
This is necessary so that the offence of fraud caputers many things i.e. emails, withdrawing money, entering stolen bank details
re: false representation
when will there not be a false representation?
- This requirement will not be satisfied when D says something they believe to be false, but is actually true
re: false representation & failure to disclose & abuse of position
how is ‘dishonesty’ approached?
this is usually straightforward but if not the court/Mags will need to apply the Iver test:
1) D’s actual state of knowledge of the facts (subjective)
2) was the conduct honest/dishonest by the standards or ordinary, decent people (objective)?
re: false representation & failure to disclose & abuse of position
explain ‘intention to make a gain for self or another or to cause loss to another or to expose another to a risk of loss’
D must have intended to make a gain or cause the loss by making the false representation – the two must be linked
it is immaterial if the intention to cause loss is only temporary (i.e. it doesn’t matter if someone plans to return something later)
re: false representation
explain the general scope of this
the offence of fraud under s 2 FA 2006 is drafted very widely as the defendant need only make a false representation with the requisite mens rea.
It is irrelevant whether anyone is misled by the representation, whether the victim relied upon it or whether the representation actually resulted in the defendant gaining anything or causing any loss
re: failing to disclose information
what is the AR?
failing to disclosue information D has a legal duty to disclose
(NB: the actus reus will only be satisfied if they have failed to disclose under their legal duty)
re: failing to disclose information
what is the MR?
dishonesty & intention to make a gain fo self or another or to cause loss to another or to expose another to a risk of loss
re: failing to disclose information
how may a legal duty be imposed?
The legal duty to disclose may be impose by:
o Statute
o Terms of a contract (express or implied)
o Transaction of good faith
o Financial relationship
re: failing to disclose information
if there has been a failure to disclose, what does the law allow?
if the victim changed their legal position due to the defendant’s failure to disclose, the law allows the claimant to rescind/cancel any contract; reclaim any monies under it; plus any damages if any money has been lost.
re: abuse of position
what is the AR?
occupying a position in which D is expected to safeguard, or not against the financial interests of another person & abuse of that position by act or omissions
re: abuse of position
what is the MR?
dishonesty & intention to make a gain for themselves or another or to cause loss to another or to expose another to a risk of loss
re: abuse of position
explain ‘occupying a position’
- There must be the existence of a position of financial trust between D and V, where D is expected to safeguard V / not act against their financial interests
re: abuse of position
give examples of relevant relationships
o Trustee and beneficiary
o Director and company
o Professional person and client
o Agent and principal
o Employee and employer
o It may also arise in a family or volunteer context
They need not owe a specific fiduciary duty i.e. unlicensed gang-masters and migrant workers was a sufficient relationship
re: abuse of position
how can an abuse of position happen?
- This can be done by act or omission
