Fraud offences

Question 1

In what three ways can the offence of fraud be committed?

Answer 1

Fraud by false representation

Fraud by failure to disclose

Fraud by abuse of position

Question 2

What is the actus reus for fraud by false representation?

Answer 2

A false representation. There is no requirement that the representation deceives anyone.

Question 3

What are the three aspects of a false representation?

Answer 3

1. Express or implied representation
2. Representation as to fact, law or state of mind
3. The representation must be untrue or misleading

Question 4

What are the three aspects of the mens rea of fraud by false representation?

Answer 4

1. Dishonesty-as per the Ivey v Genting Casinos (2017) test
2. Mens rea for the false statement-this will be satisfied if D is subjectively aware of the possibility that what they are saying or implying is false.
3. Intention to make a gain or cause a loss-for themselves or someone else.

Question 5

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

Answer 5

Existence of a legal duty to disclose-arising from statute, fiduciary relationship etc.

Failure to disclose-this will be a matter of fact and easy to prove in most instances.

Question 6

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

Answer 6

Dishonesty-as per the Ivey v Genting Casinos (2017) test

Intention to make a gain or cause a loss-for themselves or someone else.

Question 7

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

Answer 7

Occupying a position-the position must be one required the D to look after the victim’s financial wellbeing.

Abuse of position-this can be defined as ‘uses incorrectly’ or ‘puts to improper use’ the position held in a matter that is contrary to the expectation that arises because of that position.

Question 8

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

Answer 8

Dishonesty-as per the Ivey v Genting Casinos (2017) test

Intention to make a gain or cause a loss-for themselves or someone else.

Question 9

What is the test for dishonesty as set out in Ivey v Genting Casinos (2017)?

Answer 9

a) What was the D’s knowledge and belief as to the facts?

b) Given that knowledge and those beliefs, was the D dishonest by the standards of ordinary decent people?