Fraud and OSD

Question 1

S2

Answer 1

A person is guilty of fraud if:
“He dishonestly makes a false representation with intention to make a gain for himself or another or cause a loss to another or expose another to a risk of loss”

Question 2

Actus Reus

Answer 2

1. D must make a representation

2. Which is false

Question 3

Mens rea

Answer 3

1. Knowledge that rep. is/ might be false or misleading
2. Dishonesty
3. Intention to make gain/cause loss

Question 4

1. D must make a representation

Answer 4

There are 2 things to consider:

1. What D is making a representation about
2. How is D making a representation

Representation does not need to be received by V or even communicated effectively to V

Question 5

S2(3)

Answer 5

D’s representation can be about 1/3 things:

1. Fact e.g. This car has been in an accident before
2. Law e.g. claiming you are legal owner of the car
3. State of mind e.g. I have a place at Cambridge for Oct. 2012

Question 6

S2(4)

Answer 6

Different ways in which D can make a representation

The representation can either be expressed or implied.

Question 7

Express representations

Answer 7

Silverman - Express rep by words

Question 8

Implied representations… by conduct

Answer 8

DPP v Ray - Implied rep by conduct (leaving without paying meal)

Lambie - implied rep by using card

Question 9

Implied representations… by clothing

Answer 9

Barnard - implied rep by dressing up as oxford student

Question 10

Representations by omission

Answer 10

Rai - informing council his mum was dead

Question 11

Representations not made by a person - S2(5)

Answer 11

The false rep can be made to a machine (Lambie) e.g. cash machines

Question 12

2. The representation must be false

S2(2)

Answer 12

Gives two possible meanings of false:

1. Untrue
2. Misleading

Question 13

MR 1. Knowledge that rep might be false

Answer 13

If D genuinely thinks his rep is true, he’ll lack the MR needed for offence.

Question 14

2. Dishonesty

Answer 14

Ghosh test - 3 exceptions DO NOT apply

1. D’s conduct is dishonest by the ordinary standards of the reasonable and honest person
2. D was aware that reasonable and honest person would consider his conduct to be dishonest

Question 15

3. Intention to make a gain for himself or another OR intention to cause/ expose another to a risk of loss

S5

Answer 15

Defines both terms - each 2 possible meanings:
Gain:
- Keeping what one has
- Getting what one has not

Loss:

• Parting with what one already has
• Not get what one might otherwise get

It is not necessary that a gain or a loss occurs - as long as D has intent to gain/ cause a loss of property

Question 16

Stonehouse

Answer 16

D intends to make a gain for himself as he has financial problems.

Question 17

S11 OSD

Answer 17

cannot obtain goods dishonestly

Question 18

Actus reus

Answer 18

1. D obtains (by an act)
2. A service
3. D fails to pay either in part or in full for the service

Question 19

Mens rea

Answer 19

1. Knowledge that payment is/might be required
2. Dishonesty
3. Intention not to pay in part or full

Question 20

1. D obtains by an act

Answer 20

OSD cannot be committed via an omission.

This is a result crime in that the service must actually be obtained.

Question 21

Services

Answer 21

No definition in the Fraud Act.

Examples from MOWP:

Vincent; Allen - Hotel
McDavitt - Restaurant
Troughton v MPC - Taxi

Question 22

2. Fails to pay (either in whole or part for them)

Answer 22

Implying the requirement of payment - not a free service.

Question 23

MR 1. Dishonesty

Answer 23

Ghosh - 3 exceptions DO NOT apply:

1. D’s conduct is dishonest by the ordinary standards of a reasonable and honest person
2. D is aware that his conduct is dishonest by those standards

Question 24

2. Knowledge that services are made available on the basis that payment is or might be required

Answer 24

D might not have such knowledge when it comes to firework displays, overtime charges e.t.c

Question 25

3. Intention that payment be avoided

Answer 25

D would not fulfil this requirement if he used vouchers.

ALL OF THESE MR ELEMENTS MUST COINCIDE WITH THE OBTAINING OF A SERVICE - at any time (before or during)