FRAUD

Question 1

What are the three different ways in which fraud can be committed?

Answer 1

• fraud by false representation(s2)
• fraud by failure to disclose(s3)
  fraud by abuse of position(s4)

Question 2

What is the actus reus for a s2 fraud by abuse of position?

Answer 2

• Occupying a position

- Abuse of position

Question 3

What is the actus reus for a s3 fraud by failure to disclose?

Answer 3

• existence of a legal duty

- failure to disclose.

Question 4

What is the mens rea for a s2 fraud by abuse of position?

Answer 4

• dishonesty

- intention to make a gain or cause a loss.

Question 5

Which types of positions are relevant for a fraud by abuse of position charge?

Answer 5

• the position must be one requiring the defendant to look after the victim’s financial well-being
• professional, fiduciary and long-term relationship

Question 6

What is the mens rea for a s3 fraud by failure to disclose?

Answer 6

• dishonesty

- intention to make a gain or cause a loss.

Question 7

When will the existence of a legal duty to disclose be relevant?

Answer 7

• arising from statute
• within a transaction of the utmost good faith (such as insurance)
• contained in the contract
• arising from a custom in a particular trade or market
• arising from a fiduciary relationship

Question 8

What is the actus reus for a s4 fraud by false representation?

Answer 8

• a false representation.

Question 9

What is the mens rea for a s4 fraud by false representation?

Answer 9

• Dishonesty
• Mens reafor the false statement
• Intention to make a gain or cause a loss.

Question 10

What are the 3 aspects of a false representation?

Answer 10

• Express or implied representation (s2(4))
• Representation as to fact, law or state of mind (s2(3))
• Representation untrue or misleading (s2(2)(a))

Question 11

How can implied representation arise?

Answer 11

What the defendant says (R v King)
The defendants conduct (DPP v Ray)
Not pure silence without an accompanying action (R v Twaite)

Question 12

Can fraud by false rep happen in cases of overcharging?

Answer 12

Yes in two cases:

• in circumstances of mutual trust (R v Silverman)
• where the victim is a trusted friend (R vJones)