Fraud Case Law Flashcards
False Representation: Actus Reus
-Make a false (“untrue or misleading”) representation: “In circumstances of mutual trust, one party depending upon the other for fair and reasonable conduct, criminal law may apply if one party takes dishonest advantage of the other by representing a fair charge…[only he] knows is dishonestly excessive” (R v Silverman) “On the evidence it was a stupidity or carelessness born of trust…which the appellant was aware and of which he was able to take advantage for many years” (Crown (R) v Jones) (S2, FA 2006)
-Representation, as to fact, law or the state of mind of the person making the representation or any other person: “A misrepresentation as to the state of a man’s mind is therefore, a misstatement of fact” (Edgington v Fitzmaurice; Crown (R) v King reinforces this). If the defendant is in a better position to express the belief or opinion than the other party, this may also amount to a false representation. Ex. A mechanic would know more than their client (Smith v LHPC). The state of mind required can also relate to an intention. If the defendant states an intention to do something, when D in fact has no such intention, this may also amount to a false representation. (DPP v Ray) (S2(3), FA 2006)
-A representation may be express or implied: It can consist of speech (Crown (R) v King) or conduct (DPP v Ray, Idrees v DPP) but not pure silence (Crown (R) v Twaite) (S2(4), FA 2006)
False Representation: Mens Rea
-Dishonestly: “What was the defendant’s knowledge and belief as to the facts?” AND “Given that knowledge and those beliefs, was the defendant dishonest by the standards of ordinary decent people?” (Ivey v Genting Casinos). Dishonesty is a requirement (Crown (R) v Clarke)
-Know that the statement/representation is false or misleading: “There must be an indifference to, or disregard of, whether a statement is true or false. A belief, however unreasonable, that the representation is true will prevent…[a claim of] deception.” & “If a person gives a clear caveat, they do not make a false statement” (Crown (R) v Staines) (S2(2)(b), FA 2006)
-With the intention to make a gain, cause another to suffer a loss or expose another to the risk of loss: All that is required is intention - no material gain or loss is actually required. False representations made to get a job could be regarded as intending to give the applicant a gain; i.e. wages. (Crown (R) v Dziruni) (S5, FA 2006)
Failure to Disclose: Actus Reus
-Fail to disclose to another person information: (S3(a), FA 2006)
-He is under a legal duty to disclose: Arising from statute (ex. provisions on company prospectuses; Crown (R) v Mashta), from a transaction of the utmost good faith, from express or implied terms of a contract (By not adhering to the terms and revealing required information, you make a false representation - Crown (R) v Razoq); from a custom in certain trades or markets; and from a fiduciary relationship (principal and agent) - from the Law Commission. (S3(a), FA 2006)
Failure to Disclose: Mens Rea
-Dishonestly: “What was the defendant’s knowledge and belief as to the facts?” AND “Given that knowledge and those beliefs, was the defendant dishonest by the standards of ordinary decent people?”
-With the intention to make a gain, cause another to suffer a loss or expose another to the risk of loss: All that is required is intention - no material gain or loss is actually required. False representations made to get a job could be regarded as intending to give the applicant a gain; i.e. wages. (Crown (R) v Dziruni) (S5, FA 2006)
Abuse of Position: Actus Reus
-Occupies a position in which: “Trustee and beneficiary, director and company, professional person and client, agent and principal, employee and employer, or between partners…It will be recognised by the civil law as importing fiduciary duties…any relationship…recognised will suffice” (Law Commission Report). Ex. a professional, personal or fidiciuary relationship (but not limited to such). (Crown (R) v Valujevs)
-He is expected to safeguard/not act against (Crown (R) v Marshall)
-The financial interests of that person
-Dishonestly abuses that position: Pennock & Pennock were not found guilty. Their joint bank account meant both were authorised to access, as Spann lawfully agreed and gave consent. They also failed to rob him of his house - if it was their intention - because he had an equitable interest, (This might be wrong. Suggesting the offence would only be committed following a successful unlawful act seems contrary to the definition upon which they purport to rely. This would mean that a defendant, who dishonestly embarks on an improper purpose, will avoid criminal liability because it subsequently transpires that D’s acts are lawful; Crown (R) v Pennock & Pennock. However, this what we have to follow for now.)
-Abuse can consist of an omission rather than an act (Ex. An employee was meant to pick up cash for an employer and does not - Crown (R) v Woollin)
Abuse of Position: Mens Rea
-Intends: Want to achieve an aim or purpose
-By means of abuse
-To make a gain for himself or another, expose another to loss or risk exposing another to loss: With the intention to make a gain, cause another to suffer a loss or expose another to the risk of loss: All that is required is intention - no material gain or loss is actually required. False representations made to get a job could be regarded as intending to give the applicant a gain; i.e. wages. (Crown (R) v Dziruni; ) (S4(1)(c), S5, FA 2006)
Deceiving a Machine
-Representations can also be made to machines, if they are “submitted in any form to any system or device designed to receive, convey or respond to communications (with or without humans)” (S2(5), FA 2006)
-Ex. This will allow for prosecution of those who use stolen credit cards and if required, their PINs. They are making the representation they are entitled to the funds by requesting the money - this is a dishonest, false representation.
