By abuse of position (Fraud - Core principles of criminal liability)

Question 1

What key role must a person occupy to be guilty of fraud by abuse of position under Section 4 of the Fraud Act?

Answer 1

They must be in a position where they are expected to safeguard the financial interests of another person.

Question 2

What are the two essential mental elements required for the offence of fraud by abuse of position?

Answer 2

The person must dishonestly abuse their position and intend to make a gain or cause a loss or risk of loss to another.

Question 3

Can fraud by abuse of position be committed through a failure to act?

Answer 3

Yes. The offence can be committed by omission as well as by active conduct.

Question 4

Does it matter if the fraudster did not successfully make a gain or cause loss in a fraud by abuse of position case?

Answer 4

No. The offence is complete as long as there was intention to gain or cause loss—actual gain or loss is not required.

Question 5

Give an example of a workplace scenario that could amount to fraud by abuse of position.

Answer 5

If an employee uses access to company assets (e.g. duplicating proprietary software) for personal gain, they may be guilty of abusing their position.

Question 6

What distinguishes fraud by abuse of position from fraud by false representation?

Answer 6

Fraud by abuse of position involves misusing a position of trust, while false representation involves misleading another through statements or conduct.

Question 7

In a fraud by abuse of position case, what must the prosecution show about the relationship between the parties?

Answer 7

That the defendant occupied a position of trust where they were expected to act in the best financial interests of the victim.

Question 8

If a financial advisor withholds investment risks from a client to benefit themselves, which type of fraud may apply?

Answer 8

Fraud by abuse of position, as they have dishonestly failed in their duty to act in the client’s financial interest.