Fraud

Question 1

Fraud

Answer 1

Offence under Fraud Act (FA) 2006, either way with max 10 years in Crown Court or unlimited fine or both

Question 2

Definition of fraud

Answer 2

Fraud may be established by:
1. making a false representation
2. by failing to disclose information and
3. by abuse of position

Prosecution does not need to prove that D’s actually obtained anything by their actions, just that they intended to do so.
Mens rea: dishonesty is key element

Question 3

Fraud by false representation

Answer 3

Actus reus: making a false rep
Mens rea:
- knowledge that rep is or might be false
- dishonesty
- intention to make a gain for self or another or to cause loss to another or to expose another to a risk of loss

Question 4

A representation

Answer 4

1. representation may relate to:
   - a fact
   - the law; or
   - the state of mind of person making rep or any other person
2. representation may be express or implied
3. may be:
   - in words; or
   - communicated by conduct.
   - in writing,
   - spoken or
   - posted in website

Question 5

False rep

Answer 5

Untrue or misleading
Misleading means less han wholly true and capable of an interpretation to the detriment of the victim.

Question 6

Effect of representation

Answer 6

Prosecution need only prove that false rep was actually made (no need to prove anyone was deceived - make false rep to machine)

representation only need to be submitted (not necessarily communicated)

• Rep by email: made as soon as it is sent
• withdrawing money from case point machine: rep is made when the PIN is inputted into the machine
• Entering stolen bank details onto an internet site to purchase items is a rep

Question 7

Dishonesty

Answer 7

Ivey v Genting Casinos test

Question 8

Intention to make a gain or cause loss

Answer 8

1. Gain and loss:
   - extends only to money and property
   - may be real or personal property including things in action and intangible property
   - may be temporary or permanent
2. Gain includes:
   - keeping what one has
   - getting what one does not have
3. Loss includes:
   - not getting what one might get
   - parting with what one has

Question 9

Fraud by failing to disclose info

Answer 9

1. Actus reus: fail to disclose** to another person info which they are a legal duty to disclose; and
2. Mens rea:
   - dishonesty
   - intend, **by failing to disclose info, to make gain or cause loss, or to expose another to risk of loss

Question 10

Legal duty to disclose

Answer 10

May be imposed by:
- by statute
- term of contract (oral or written)
- a transaction of good faith (e.g. contract of insurance)
- custom of particular trade or market
- existence of fiduciary relationship (e.g. agent and principal)

Question 11

Fraud by abuse of position

Answer 11

Actus reus:
- occupying a position in which D is expected to safeguard, or not to act against, the financial interest of another person
- abuse of that position by act or omission

Mens rea:
- dishonesty
- intention to make a gain for self or another or to cause loss to another or to expose another to a risk of loss

Question 12

Examples of Relevant positions

Answer 12

1. trustee and beneficiary
2. director and company
3. professional person and client
4. agent and principal
5. employee and employer
6. within a faminy
7. in a context of voluntary work
   (even unlicensed gang masters - migrant workers)