Fraud

Question 1

Elements of Fraud

The Ghosh test (1982)

Answer 1

The Ghosh test (1982)

• Was the action dishonest according to the ordinary standards of reasonable and honest people.

If yes:

Did D realize that reasonable and honest people regard his actions as dishonest?

Question 2

Elements of fraud

s.5 Fraud Act 2006

Answer 2

Gain and loss, can include:

• Money
• Property
• Personal property (including things in action and other intangible property)
• Gain includes keeping what you already have
• Loss includes not getting what you might otherwise get

Question 3

Intention can both be direct intention as well as foresight of a virtually certain consequence!

Question 4

S. 2 - False representation

Answer 4

• Actus Reus: D makes an untrue or misleading representation
• Mens Rea: D acted dishonestly and knew the representation was (or was likely to be) false.
  There must also be an intention to make a gain or cause a loss
• The representation can be express or implied
• This is a conduct crime (result is not necessary)

Question 5

s. 3 - Failing to disclose information

Answer 5

Actus reus: D fails to disclose information that he is legally obliged to disclose

Mens rea: D intends to make a gain or cause a loss

• The legal duty can come from statute, a contract, a fiduciary duty, etc.
• There can be liability even where D was unaware of the legal duty

Question 6

s. 4 - Abuse of position

Answer 6

Actus reus: D abuses her fiduciary duty to another person

Mens rea: The abuse is dishonest and intended to make a gain or cause a loss

Question 7

Other offences

Answer 7

s. 6&7 - Possessing, making, supplying etc. articles for fraud
- s.11 - Obtaining services dishonestly

Question 8

Bribery Act 2010

Answer 8

s. 1 - D promises/gives some financial or other advantage in order to persuade another person to act improperly or does so as a reward for them acting imroperly
s. 2 - Creates an offence where a person receives, agrees to or accepts a bribe

Question 9

Theft Act 1968

Answer 9

s. 17 - False accounting
s. 18 - Corporate liability of fraud offences
s. 19 False statement by company directors
s. 20 - Suppression of documents
s. 21 - Blackmail
- Actus Reus: “Demand with menaces”
- Mens Rea: “A view to gain for himself or another or with intent to cause loss to another”
- Allowed if the demands have reasonable grounds and menaces are proportionate.