Fraud Flashcards
What is the AR for fraud by false representation?
D must make a false representation
What must a false representation be?
Untrue or misleading; and D must know or believe that it is untrue or misleading
Can a false representation be by conduct?
Yes, an example would be using a false/fake credit card
Can a false representation be by an omission?
Yes - failing to disclose something on a form
What is the MR for fraud by false representation?
- D knows the representation is false or misleading;
- makes the representation dishonestly;
- has intention to make a gain / cause a loss to another
Does the gain or loss need to come about?
No, what matters is that D intended to make a gain or loss, not whether one was actually made
What are examples of ‘gain’ for the purposes of the offence?
Phishing emails, lying when applying for a job, applying for insurance or making an insurance claim, and applying for a loan or mortgage
What is the AR for fraud by failing to disclose information?
Failing to disclose information to another person D is under a legal duty to disclose
Where do legal duties to disclose come from?
- statute
- duties arising from a contract
- contracts of insurance
- existence of a fiduciary relationship
What is the AR of fraud by abuse of position?
D must occupy a position in which he is expected to safeguard the financial interests of another and must abuse that position
What does abuse of position mean?
It is a very broad term, given its ordinary meaning of taking advantage. It could include directors, trustees, business partners, employers or employees
What is the maximum penalty for fraud?
10 years in prison or an unlimited fine
What is the principle of overcharging for fraud by false representation?
The basic principle is that a person is entitled to charge whatever sum they consider appropraite
In what circumstances is there criminal liability for overcharging (fraud by false representation)?
- circumstances of mutual trust
- trusted friend and taking advantage of this
- deceiving a machine (stolen credit cards / PIN codes)
How is gain/loss defined?
In monetary / property terms - must be money or other property
How is an occupying position for fraud by abuse of position defined?
The Act does define the type of position, except that it is one requiring the defendant to look after the victim’s financial wellbeing
How does the judge and jury decide on whether D occupies a position for the purposes of fraud by abuse of position?
- 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
What is the test for whether there D holds a position?
It is an objective test based on position of a reasonable person
Does there need to be a causal link between the false representation and what the statement maker hopes to achieve?
No - it does not matter if the false representation does not influence the victim / what D hopes to achieve
Does it matter if D honestly believes that the false representation would not have influenced V anyway?
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
What type of fraud is overcharging?
Fraud by false representation
Is lying the same as dishonesty?
No - liability depends on D being dishonest. Just because D has lied does not automatically make them dishonest
What test is used to determine dishonesty?
Ivey v Genting Casinos. It is for the jury to find D dishonest
Can pure silence without an accompanying action amount to a representation for the purposes of fraud by false representation?
No
Who decides if D is dishonest?
The jury, applying Ivey v Genting casinos., THis means D may not be liable if a jury find him honest
What is the test for dishonesty from Ivey?
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?
