Fraud

Question 1

What is the AR for fraud by false representation?

Answer 1

D must make a false representation

Question 2

What must a false representation be?

Answer 2

Untrue or misleading; and D must know or believe that it is untrue or misleading

Question 3

Can a false representation be by conduct?

Answer 3

Yes, an example would be using a false/fake credit card

Question 4

Can a false representation be by an omission?

Answer 4

Yes - failing to disclose something on a form

Question 5

What is the MR for fraud by false representation?

Answer 5

• D knows the representation is false or misleading;
• makes the representation dishonestly;
• has intention to make a gain / cause a loss to another

Question 6

Does the gain or loss need to come about?

Answer 6

No, what matters is that D intended to make a gain or loss, not whether one was actually made

Question 7

What are examples of ‘gain’ for the purposes of the offence?

Answer 7

Phishing emails, lying when applying for a job, applying for insurance or making an insurance claim, and applying for a loan or mortgage

Question 8

What is the AR for fraud by failing to disclose information?

Answer 8

Failing to disclose information to another person D is under a legal duty to disclose

Question 9

Where do legal duties to disclose come from?

Answer 9

• statute
• duties arising from a contract
• contracts of insurance
• existence of a fiduciary relationship

Question 10

What is the AR of fraud by abuse of position?

Answer 10

D must occupy a position in which he is expected to safeguard the financial interests of another and must abuse that position

Question 11

What does abuse of position mean?

Answer 11

It is a very broad term, given its ordinary meaning of taking advantage. It could include directors, trustees, business partners, employers or employees

Question 12

What is the maximum penalty for fraud?

Answer 12

10 years in prison or an unlimited fine

Question 13

What is the principle of overcharging for fraud by false representation?

Answer 13

The basic principle is that a person is entitled to charge whatever sum they consider appropraite

Question 14

In what circumstances is there criminal liability for overcharging (fraud by false representation)?

Answer 14

• circumstances of mutual trust
• trusted friend and taking advantage of this
• deceiving a machine (stolen credit cards / PIN codes)

Question 15

How is gain/loss defined?

Answer 15

In monetary / property terms - must be money or other property

Question 16

How is an occupying position for fraud by abuse of position defined?

Answer 16

The Act does define the type of position, except that it is one requiring the defendant to look after the victim’s financial wellbeing

Question 17

How does the judge and jury decide on whether D occupies a position for the purposes of fraud by abuse of position?

Answer 17

• Jury decides on the facts whether the necessary relationship exists
• Before the jury decides this, the judge considers whether the particular facts are capable of giving rise to D occupying a position

Question 18

What is the test for whether there D holds a position?

Answer 18

It is an objective test based on position of a reasonable person

Question 19

Does there need to be a causal link between the false representation and what the statement maker hopes to achieve?

Answer 19

No - it does not matter if the false representation does not influence the victim / what D hopes to achieve

Question 20

Does it matter if D honestly believes that the false representation would not have influenced V anyway?

Answer 20

No, it does not matter if D honestly believes that the V would have been influenced anyway. The negative definitions of dishonesty found in Theft Act do not apply to offences under Fraud Act

Question 21

What type of fraud is overcharging?

Answer 21

Fraud by false representation

Question 22

Is lying the same as dishonesty?

Answer 22

No - liability depends on D being dishonest. Just because D has lied does not automatically make them dishonest

Question 23

What test is used to determine dishonesty?

Answer 23

Ivey v Genting Casinos. It is for the jury to find D dishonest

Question 24

Can pure silence without an accompanying action amount to a representation for the purposes of fraud by false representation?

Answer 24

No

Question 25

Who decides if D is dishonest?

Answer 25

The jury, applying Ivey v Genting casinos., THis means D may not be liable if a jury find him honest

Question 26

What is the test for dishonesty from Ivey?

Answer 26

i) What was the defendant’s knowledge and belief as to the facts?
ii) Given that knowledge and those believes, was the defendant dishonest by the standards of ordinary decent people?