Fraud Flashcards
Outline s1 (1) of the Fraud Act 2006
Creates the general offence of fraud which is committed where a person breaches s2, s3, or s4, which provide 3 different ways of committing the offence:
s2 - fraud by false representation
s3 - fraud by failing to disclose information
s4 - fraud abuse of position
All offences require dishonesty and an intention to make a gain or to cause a loss, / the risk of loss, to another.
Outline the sentencing of fraud
Under s1
Triable either way offence
Magistrates’ Court: 6 months and/or up to Level 5 fine
Crown Court: 10 years imprisonment and/or up to a Level 5 fine
Define s2 (1) of the Fraud Act 2006
A person is in breach of this section if he –
- Dishonestly makes a false representation, and
- Intends, by making the representation
- To make a gain for himself or another
- To cause a loss to another or to expose another to a risk of loss
Outline the actus reus of fraud by false representation
Making a representation that is false
It is made when submitted / transmitted / articulated under s2 (5), e.g. clicking send on a false email (doesn’t matter if the victim doesn’t send it!!!!!
The representation must be untrue or misleading under s2 (2) (a), e.g. a lie
Outline the idea of making a representation
Meaning any ‘representation as to fact / law, including a representation as to the state of mind of the person making the representation or another person’ under s2 (3)
Must be directed at someone / something → can be expressed or implied, e.g R v Barnard [1837] under s2 (4) / Lambie [1981] / Rai [2000]
Outline the idea of the representation being false or misleading
A matter of the jury to decide if it’s wholly untrue or partially untrue, e.g R v Whatcott [2019]
Outline the men’s rea of false representation
Knowledge that the representation is false, dishonest & intention to make a gain / cause a loss under s2 (5), under s2 (5) (a) extends only to gain / loss in money / other property.
Under s2 (2) (b), whether the defendant knew that the representation was false is a subjective test
The Ivey test is used (1) determine the individual’s knowledge / belief as to the facts (2) consider whether the defendant’s false representation was dishonest according to the standards of ordinary, decent people.
If yes, the individual is dishonest & satisfies this element & vice versa, e.g R v Auguanas [2013]
S2 (5) (a) extends only to gain or loss in money / other property, e.g land
s2 (5) (b) extends only such gain or loss Whether temporary / permanent & ‘property’ means any property meaning real or personal (including things in action such as checks) & other intangible property Under s5 (4) a ‘loss’ includes a loss by not getting what one might get, as well as a loss by parting with what one has
The intention must be because of the false representation, e.g AG’s Ref (No.1 of 2001) [2002]
Define s3 of the Fraud Act 2006
Under s3 of the FA 2006, ‘a person is in breach of this section if he (a) dishonestly fails to disclose to another person information which he is under a legal duty to disclose, and (b) intends, by failing to disclose the information-
(i) to make a gain for himself or another, or
(ii) to cause loss to another or to expose another to a risk of loss.
Outline the actus reus of failing to disclose information
Failure to disclose information where there is a legal duty to disclose
Commonly committed through the defendant not saying anything, saying there is nothing to disclose or only partially disclosing information, e.g Mashta [2010]
Legal duties not defined (R v D [2019], although could constitute legal / statutory duties, e.g a fiduciary relationship.
Outline the men’s rea of failing to disclose information
Dishonesty and intention to make a gain or cause a loss
No requirement of knowing the duty
Ivey test: (1) determine the individual’s knowledge / belief as to the facts (2) consider whether the defendant’s false representation was dishonest according to the standards of ordinary, decent people.
Define s4 of the Fraud Act 2006
Under s4 (1), ‘a person is in breach of this section if he (a) occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person, (b) dishonestly abuses that position, and (c) intends, by means of the abuse of that position — (i) to make a gain for himself or another, or (ii) to cause loss to another or to expose another to a risk of loss.
Under s4 (2), a person may be regarded as having abused his position even though his conduct consisted of an omission rather than an act.
Outline the actus reus of abusing a position of trust
Occupation of a position which he is expected to safeguard and abuse of that position
Position is not defined, but generally a privileged one / for the jury to determine, e.g Rahman [2009]
Position is abused when used incorrectly, e,g R v Pennock & Pennock [2014]
There MUST be an expectation to safeguard, e.g R v Marshall [2009]
Outline the actus reus of abusing a position of trust
Dishonesty and intention to make a gain or cause a loss
Ivey test
Must be a casual link between between abuse of position & making a gain / loss.
The defendant must intend to make a gain / loss through abuse of position.
Define s11 of the Fraud Act 2006
Under s11 (1), ‘a person is guilty of an offence under this section if he obtains services for himself or another - (a) by a dishonest act, and (b) in breach of subsection (2). (2) a person obtains services in breach of this subsection if — (a) they are made available on the basis that payment has been, is being or will be made for or in respect of them, (b) he obtains them without any payment having been made for or in respect of them or without payment having been made in full, and (c) when he obtains them, he knows — (i) that they are being made available on the basis described in paragraph (a), or (ii) that they might be, but intend that payment will not be made, or will not be made in full.
Outline the actus reus of obtaining services dishonestly
By an act obtained for himself or another, services, without payment is expected
Outline the men’s rea of obtaining services dishonestly
The act must be done dishonestly, with the knowledge that the services are provided based on payment, with intention to avoid payment in full or in part.
Define s3 of the Theft Act 1968
Under s3 (1) of the TA 1968, ‘a person who, knowing that payment on the spot for any goods supplied or service done is required or expected from him, dishonestly makes off without having paid as required or expected and with intent to avoid payment of the amount due shall be guilty of an offence’.
Outline the actus reus of making off without payment
Making off on the spot without payment that is required or expected for goods supplied / services done.
Must fully depart the spot –> departing without permission is not sufficient otherwise a different offence committed, e.g R v Brooks & Brooks [1982]
Services not defined in statute, but typically refers to when the victim does a particular act which the defendant takes advantage of.
Does not apply to illegal goods and services.
Covers partial payment & requires payment on the spot, e.g Troughton v MPC [1987]
Outline the men’s rea of making off without payment
The act must be done dishonesty, with the knowledge that the payment on the spot is required / expected.
Subjectively tested, through Ivey
Intention to avoid payment off the amount due, e.g R v Allen [1985]
