Property offences - Fraud by abuse of position

Question 1

What is the AR and MR of fraud by abuse of position?

Answer 1

a) Actus Reus
* Occupy a position
* Abuse that position

b) Mens Rea:
* Dishonesty
* Intention to make a gain or cause a loss.

Question 2

ACTUS REUS: what do we mean by ‘occupy a position’?

Answer 2

This position must be one requiring the defendant to look after the victim’s financial wellbeing.

Where there is- but not limited to - a professional, fiduciary or longterm business relationship.

Question 3

ACTUS REUS: What is ‘abuse of position’ ?

Answer 3

‘uses incorrectly’ or ‘puts to improper use’ the position held in a manner that is contrary to the expectation that arises because of that position.

This offence can be committed by an omission as well as by an act.

Question 4

MENS REA: what do we mean by ‘dishonesty’?

Answer 4

(i) What was the defendant’s knowledge and belief as to the facts?

(ii) Given that knowledge and those beliefs, was the defendant dishonest by the standards of ordinary decent people?

Question 5

MENS REA: what is ‘intention to make a gain or cause a loss’?

Answer 5

The second aspect of the mens rea is intention to make a gain or cause a loss.

All that is required is that the defendant intended to make a gain, even if no such gain arose.