Fraud and OSD Flashcards
S2
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”
Actus Reus
- D must make a representation
2. Which is false
Mens rea
- Knowledge that rep. is/ might be false or misleading
- Dishonesty
- Intention to make gain/cause loss
- D must make a representation
There are 2 things to consider:
- What D is making a representation about
- How is D making a representation
Representation does not need to be received by V or even communicated effectively to V
S2(3)
D’s representation can be about 1/3 things:
- Fact e.g. This car has been in an accident before
- Law e.g. claiming you are legal owner of the car
- State of mind e.g. I have a place at Cambridge for Oct. 2012
S2(4)
Different ways in which D can make a representation
The representation can either be expressed or implied.
Express representations
Silverman - Express rep by words
Implied representations… by conduct
DPP v Ray - Implied rep by conduct (leaving without paying meal)
Lambie - implied rep by using card
Implied representations… by clothing
Barnard - implied rep by dressing up as oxford student
Representations by omission
Rai - informing council his mum was dead
Representations not made by a person - S2(5)
The false rep can be made to a machine (Lambie) e.g. cash machines
- The representation must be false
S2(2)
Gives two possible meanings of false:
- Untrue
- Misleading
MR 1. Knowledge that rep might be false
If D genuinely thinks his rep is true, he’ll lack the MR needed for offence.
- Dishonesty
Ghosh test - 3 exceptions DO NOT apply
- D’s conduct is dishonest by the ordinary standards of the reasonable and honest person
- D was aware that reasonable and honest person would consider his conduct to be dishonest
- Intention to make a gain for himself or another OR intention to cause/ expose another to a risk of loss
S5
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
Stonehouse
D intends to make a gain for himself as he has financial problems.
S11 OSD
cannot obtain goods dishonestly
Actus reus
- D obtains (by an act)
- A service
- D fails to pay either in part or in full for the service
Mens rea
- Knowledge that payment is/might be required
- Dishonesty
- Intention not to pay in part or full
- D obtains by an act
OSD cannot be committed via an omission.
This is a result crime in that the service must actually be obtained.
Services
No definition in the Fraud Act.
Examples from MOWP:
Vincent; Allen - Hotel
McDavitt - Restaurant
Troughton v MPC - Taxi
- Fails to pay (either in whole or part for them)
Implying the requirement of payment - not a free service.
MR 1. Dishonesty
Ghosh - 3 exceptions DO NOT apply:
- D’s conduct is dishonest by the ordinary standards of a reasonable and honest person
- D is aware that his conduct is dishonest by those standards
- Knowledge that services are made available on the basis that payment is or might be required
D might not have such knowledge when it comes to firework displays, overtime charges e.t.c
- Intention that payment be avoided
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)
