Fraud

Question 1

What are the 3 fraud offences?

Answer 1

Fraud by false representation

Fraud by failing to disclose information

Fraud by abuse of position

Question 2

What is the AR of fraud by false representation?

Answer 2

AR – **D must make a false representation **

1) False means something which is untrue or misleading

• Not a false representation is D thinks it is false, but it is actually true

2) Representation can be one of fact, law or relating to a person’s state of mind

• Can be express or implied
• Can be by words, written/oral, or through conduct

3) It is irrelevant if any gain is made or not

4) It is also irrelevant if anybody believes the false representation

• Entering stolen bank details or withdrawing cash with a stolen card is a misrepresentation

Question 3

What are the elements of the MR for fraud by false representation?

Answer 3

3 elements must be established:

1) D must know that the representation is or may be false

2) D must be dishonest – focus is on D’s belief

• What was D’s knowledge or belief as to the facts of the case? (subjective test)
• Was D’s conduct dishonest by the standards of ordinary, decent people? (objective test)

3) D must intend to make a gain for themselves or another, or must intend to cause loss to another or expose another to the risk of loss

a) Intent to gain must relate to money or property

• Lying in relation to sexual activity is not fraud for these purposes
• Lying to keep something and not return it establishes the MR

b) Can be a temporary or permanent acquisition/causing of loss

Question 4

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

Answer 4

AR – D fails to disclose information to another, where they are under a legal duty to do so

• Legal duty could include statutory or contractual duties (express/implied)
• Could be a legal duty that arises out of a transaction in good faith - Failing to disclose something on an insurance application form for example
• Legal duty might arise in the context of a fiduciary relationship (trustee and beneficiary)

Question 5

What are the elements of the MR for fraud by failing to disclose information?

Answer 5

2 elements:

1) D must be dishonest – focus is on D’s belief

• What was D’s knowledge or belief as to the facts of the case? (subjective)
• Was D’s conduct dishonest by the standards of ordinary, decent people? (objective)

2) D must intend to make a gain (for themselves or another) or to cause loss to another or expose them to the risk of loss

• Intent to gain must relate to money/property

Question 6

What are the elements of the AR for fraud by abuse of position?

Answer 6

2 elements:

1) D occupies a position where they are expected to safeguard/not act against the financial interests of another

• Will include a trustee and beneficiary situation
• Director and company
• Employee and employer
• Solicitor in relation to their dealings with a client

2) D abuses this position by an act or omission

• Using care home residents’ card details for their own gain was abuse

Question 7

What are the elements of the MR for fraud by abuse of position?

Answer 7

2 elements:

1) D must be dishonest – focus is on D’s belief

• What was D’s knowledge or belief as to the facts of the case? (subjective)
• Was D’s conduct dishonest by the standards of ordinary, decent people? (objective)

2) D must intend to make a gain (for themselves or another) or to cause loss to another or expose them to the risk of loss

• Intent to gain must relate to money/property