WS 6 - Fraud & Making Off Without Payment

Question 1

Statutory provision for Fraud by False Rep?

Answer 1

s.2 Fraud Act 2006

Question 2

Acuts Reus of Fraud by False Rep

Answer 2

1) Making a representation
2) Which is False

Question 3

Mens Rea of Fraud by False Rep

Answer 3

1) DISHONESTLY
2) INTENTION, BY MAKING THE REPRESENTATION, TO MAKE A GAIN FOR HIMSELF/LOSS TO ANOTHER [s.1(b)(i) and (ii)]
3) Knowledge/recklessness as to the possibility that the representation is untrue or misleading (or that it may be)

Question 4

Can the representation be made by words or conduct?

Answer 4

a. Words or conduct (Explanatory Note to the Bill confirms this)

Question 5

Can representation be made by Credit Card?

Answer 5

b. Use of CREDIT CARDS (R v Lambie – D had exceeded limit but continued to pay with it)

Question 6

s.2(4) FA 2006

Answer 6

Express or IMPLIED representations

Question 7

s.2(5) FA 2006

Answer 7

Representations made to a MACHINE

Question 8

DPP v Ray [1974]

Answer 8

D and 4 friends went to a Chinese restaurant, intending to have a meal there and pay for it. After eating they decide not to pay but remain at the table until waiter went out of room and then ran from restaurant. HoL held (REID AND HODSON DISSENTING) that from moment of entry to moment of leaving, impliedly represented intention and means of paying. Representation became false once decided not to pay.

Question 9

Fraud Act definition of false

Answer 9

a. s.2(2): i.e. untrue or misleading
b. Misleading = ‘less than wholly true and capable of interpretation to the detriment of the victim’ (Home Office Guidance) – NB – Omerod says what ever happened to caveat emptor?

Question 10

What if no consequence flowed from the representation?

Answer 10

Offence still committed

Question 11

What if no one is misled by the representation?

Answer 11

Irrelevant, offence of s.2 can still be committed

Question 12

s.5(2) FA 2006

Answer 12

Gain/loss extend only to money or property

Question 13

s.5(3) FA 2006

Answer 13

‘Gain’ includes keeping what one already has

Question 14

s.5(4) FA 2006

Answer 14

‘Loss’ includes not getting what one might get

Question 15

Where is the statutory definition of ‘Making off without Payment’?

Answer 15

s.3(1) Theft Act 1978

Question 16

Actus Reus of Making off without payment

Answer 16

1) Goods must be supplied or services done
2) D makes off from spot where payment is required
3) Without paying as required or expected

Question 17

Mens Rea of Making off without Payment

Answer 17

1) Dishonestly
2) Knowledge that payment on the spot was required
3) Intention to avoid payment

Question 18

Actus reus element of Making off without payment: Goods must be supplied or services done. What about where the service is not legally enforceable?

Answer 18

[s.3(3) TA 1978 – unless this is contrary to law or payment is not legally enforceable]. E.g. of making off without paying after sleeping with prostitute.

Question 19

2) D MAKES OFF FROM THE SPOT WHERE PAYMENT IS REQUIRED

Answer 19

a. s.3(2) TA 1978: “on the spot” includes payment at the time of collecting goods
b. Doesn’t include attempting to make off (e.g. D must leave dept. store)

Question 20

3) WITHOUT PAYING AS REQUIRED OR EXPECTED

Answer 20

a. Includes paying with a worthless cheque/stolen credit card (unless supported by cheque guarantee card, in which case, even if he does not have authority to use those cards, it is submitted he will not be liable for s.3 as the V will be paid)

Question 21

Give a possible defence to mens rea element of making off without payment, the knowledge that payment on the spot was required?

Answer 21

a. Defence: where D has obtained agreement of V that will pay in the future (R v Vincent [2001] – obtained agreement of hotel manager that he would pay later, CofA agreed that this would amount to a defence of s.3)

Question 22

One mens rea element of making off without payment is that the defendant must intend to avoid payment. What if he intends to return and pay later?

Answer 22

D not liable if intends to return and pay later (R v Allen – Leaves hotel without paying. Says genuinely expected to be able to return and pay with proceeds of business venture)