Fraud Flashcards
What is the categorisation and maximum sentence for fraud?
- Either way
- 10 yrs
What are the elements of fraud by false representation?
- Express or implied representation
- Representation as to fact, law or state of mind
- Representation is untrue or misleading
- Dishonesty
- Knowledge that the representation is or might be false
- Intention to make a gain or cause a loss
How can a representation be implied?
Through the defendant’s speech or conduct.
Examples: R v King [1979], DPP v Ray [1974]
Does the false representation have to be believed to be fulfil the AR?
No - must be made, not received
Can pure silence amount to a representation?
No, pure silence without an accompanying action cannot amount to a representation.
Example: R v Twaite
What is a misrepresentation of a state of mind?
It is considered a misrepresentation of fact.
Example: Edgington v Fitzmaurice (1885)
What does a statement of opinion involve?
A statement of opinion by one who knows the facts best involves a statement of material fact.
Example: Smith v Land and House Property Corporation (1884)
What happens if a defendant states an intention they do not have?
This may amount to a false representation.
Example: DPP v Ray [1974]
What is the basic rule regarding overcharging?
A person can charge whatever they want, but there are exceptions.
When can overcharging be considered a false representation?
In circumstances of mutual trust or if the defendant is a trusted friend of the victim.
Examples: R v Silverman, R v Jones (1993)
Does deceiving a machine count as false representation?
Yes, it also counts as false representation.
What is the test for dishonesty in Fraud by False Representation?
The test in Ivey v Genting Casinos considers the defendant’s knowledge and belief as to the facts, and whether they were dishonest by the standards of ordinary decent people.
Do negative definitions of dishonesty apply in the FA 2006?
No, negative definitions of dishonesty do not apply.
What must the defendant know regarding the representation?
The defendant must know or be aware that the statement is untrue or misleading - this is satisfied if they are subjectively aware of the possibility that what they are saying or implying is false
Example: R v Staines (1974)
Is an actual gain or loss required in the FA 2006?
No, all that is required is an intention to make a gain or cause a loss.
What must the gain or loss be in Fraud by False Representation?
It must be in money or other property.
What are the elements of Fraud by failure to disclose?
- Existence of a legal duty to disclose
- Failure to disclose
- Dishonesty
- Intention to make gain or cause a loss
What constitutes a legal duty to disclose?
No set defintion but includes:
* statutory duty
* transactional duty with utmost good faith
* express or implied contractual duty
* customary duty
* fiduciary duty
What is the Mens Rea in Fraud by failure to disclose?
Dishonesty and intention to make a gain or cause a loss.
What is the test for dishonesty in Fraud by failure to disclose?
Ivey v Genting Casinos Test, which is without negative conceptions.
Is there a requirement for the defendant to know they have a legal duty to disclose?
No requirement for D to know they have a legal duty to disclose.
What are the elements of Fraud by Abuse of Position?
- Occupying a position that requires the D to look after the victim’s financial well-being
- Abuse of that position
- Dishonesty
- Intention to make a gain or cause a loss
How is the position in Fraud by Abuse of Position determined?
It is determined on a case by case basis, and a reasonable person must expect the person to safeguard the victim’s financial well-being.
What sort of position can lead to abuse of position?
A position where a reasonable person would expect the person to safeguard the victim’s financial well being
- Easy to prove in a professiona, fiduciary, long-term business relationship
- Not limited to the above
- Determined on a case by case basis
What constitutes an abuse of position?
Using the position incorrectly or putting it to improper use.
This is based on the definition in Archbold.
Can omission consitute fraud by abuse of position?
Yes.
What test is used to determine dishonesty in Fraud by Abuse of Position?
The Ivey test.
What is an example of intention to make a gain or cause a loss under fraud by abuse of position?
An employee failing to collect sums owed to their employer due to laziness, resulting in an oblique intention to make a gain for another and cause a loss to their employer.
This is illustrated in R v Woollin.
What are the three ways of committing fraud?
- Fraud by false rep - s2 Fraud Act
- Fraud by failure to disclose - s3
- Fraud by abuse of position - s4
