FRAUD OFFENCES

Question 1

Types of Fraud Offence

Answer 1

1. FRAUD BY FALSE REPRESENTATION
2. FRAUD BY FAILING TO DISCLOSE INFORMATION
3. FRAUD BY ABUSE OF POSITION

Question 2

FRAUD BY FALSE REPRESENTATION
Definition

Answer 2

A defendant commits fraud by false representation if they dishonestly make a false representation and intend, in doing so:
*To make a gain for themselves or another; or
*To cause or risk a loss to another.

Question 3

Actus Reas
Fraud by False Representation

Answer 3

1. The defnition of representation includes a representation as to** fact, law, or state of mind**.
2. A representation can even be made to a machine, for example, using a bank card in an ATM while purporting to be the owner of the card.
3. The repre-sentation can also be made via an agent.
   EXAMPLE
   D pays A to pretend to be D to take and pass their driving test. D would be guilty of fraud by false representation by using A as their agent to make a gain for themselves, that is, passing the driving test.

4.Misleading Representation Suffcient
A false representation can be untrue or simply misleading.
EXAMPLE
D owns an art gallery and hangs a fake Picasso painting among real ones and advertises it at a price comparable to
the others. A court could fnd this to be a false representation.

Question 4

Mens Rea
Fraud by False Representation

Answer 4

A defendant must:
1. Know the representation is or might be false or misleading;
2. Act dishonestly; and
3 .Intend to make a gain for themselves or another, or cause or risk loss to another (note a gain need not actually be realised).

Question 5

FRAUD BY FAILING TO DISCLOSE INFORMATION
Definition

Answer 5

A defendant commits fraud by failing to disclose information if they dishonestly fail to disclose information that they are under a duty to disclose and intend, in failing to do so:
*To make a gain for themselves or another; or
*To cause or risk a loss to another.

Question 6

Actus Reus
FRAUD BY FAILING TO DISCLOSE INFORMATION

Answer 6

A legal duty will arise if a defendant has a contractual duty to disclose.
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Question 7

Mens Rea
FRAUD BY FAILING TO DISCLOSE INFORMATION

Answer 7

The mens rea for fraud by failing to disclose is the same as
that required for fraud by false representation.

Question 8

FRAUD BYABUSE OF POSITION
Definition

Answer 8

A defendant commits fraud by abuse of position if they abuse their position in which they are expected to safeguard the financial interests of another. This can be by act or omission.

Question 9

Actus Reus
Fraud by Abusing Position

Answer 9

The defendant must have been in a position that warrants
their duty to **safeguard the other’s interests **by being in a
position of trust or expressing loyalty. Whether abuse has
occurred is a matter for the jury to decide.

EXAMPLE
D makes unwarranted deductions from V, their employee.
Such a relationship falls within the defnition of a position of
trust.

Question 10

Mens Rea
Fraud by Abusing Position

Answer 10

1. Although a defendant must have intended to use their position to make a gain or cause or risk a loss,
2. a defendant does not need to know that they occupy a position in which they are expected to safeguard the financial interests of another.
3. As with the other fraud offences, dishonesty is still required.