Fraud Flashcards
S. 1 - General offence
General offence of fraud is committed:
1) By making a false representation
2) By failing to disclose information
3) By abuse of position
Q: What are the Actus Reus (AR) and Mens Rea (MR) of fraud by false representation under s 2?
Actus Reus:
- Making a false representation (s 2(2)):
- Representation is false if it is untrue or misleading.
- The representation may be to a person or a system/device.
Mens Rea:
1. Dishonesty (apply the Ivey test).
2. Intention to make a gain for oneself or another, or to cause loss to another, or expose another to the risk of loss.
3. Knowledge that the representation is false or misleading, or might be so.
What is a representation in fraud by false representation?
Defined in s 2(3) of the Fraud Act 2006 as a statement about:
1. Fact- A statement about something that exists or has happened.
2. Law- A statement about legal rights or obligations.
3. State of Mind- A statement about the intentions or beliefs of:
* The person making the representation, or
* Another person.
Representations can be express (spoken/written) or implied (through conduct).
* Example: Falsely claiming to owe money (express).
* Example: Using stolen bank details online (implied).
Key Point: Representations can be directed at individuals or systems (e.g., submitting data to a machine or website).
Example of a false statement of intention
A person falsely tells their friend, “I need to borrow £500 to repair my car because I intend to drive to a job interview tomorrow.”
- Reality: They do not have a job interview and plan to spend the money on something else.
Key Point: The falsehood lies in their stated intention (attending a job interview), not a fact.
What scenarios meet the AR of fraud by false representation?
Express False Representation:
* Example: Marlon tells a victim he owes money to avoid violence, fabricating the story to elicit funds- False statement of fact
False Representation to Machines (s 2(5)):
* A representation can be made to systems or devices designed to process communications, e.g.:
* Emailing false information (representation is made when sent).
* Using stolen card details online.
* Entering a PIN into a cash machine.
False Representation Based on Knowledge:
* Belief about the representation matters:
* Rodney sells Zeenat a watch, telling her it is made of ‘9 carat gold’ but believing that it consists of a non-precious metal. When Zeenat has the watch valued a few days later, it transpires that the watch is, in fact, gold. There is no false representation and, thus, no s 2 offence.
* No AR if a representation believed to be false is actually true (e.g., selling an item mistakenly thought to be fake).
What satisfies the MR of fraud by false representation?
Dishonesty:
* Use the Ivey v Genting Casinos test:
* Would an ordinary person view the conduct as dishonest, considering the defendant’s perspective?
Intention to Make a Gain or Cause Loss (s 5):
* Includes monetary gain, property gain, or gain of services.
Examples of Intent:
* Gaining property (e.g., a ticket, car, book).
* Causing financial or property loss (e.g., inheritance share).
What are examples of intent to make a gain or cause a loss in fraud by false representation?
- Gaining a ticket by falsely claiming a dying wish (gain for oneself, loss to another).
- Borrowing a car with intent to gain the temporary use of property.
- Keeping a book by falsely claiming it was lost (gain for oneself, loss to the lender).
- Falsely claiming inheritance to gain property at the expense of another heir.
What are the Actus Reus (AR) and Mens Rea (MR) of fraud by failing to disclose information under s 3?
Actus Reus:
1. Failing to disclose information.
2. There is a legal duty to disclose the information.
Mens Rea:
1. Dishonesty (apply the Ivey test).
2. Intention to make a gain for oneself or another, or to cause loss to another, or expose another to the risk of loss.
What are some detailed examples of failure to disclose information in fraud under s 3?
- Insurance Contract:
* Bradley applies for travel insurance but fails to disclose that he has a history of heart problems, even though he knows this is relevant to the policy. He later suffers a heart attack while travelling.
* Legal Duty: Insurance contracts require disclosure of material facts under the principle of utmost good faith. - Employment Application:
* Ravinder applies for a social worker position requiring good character. She does not disclose that she was disciplined for cheating at university, a fact relevant to the employer’s assessment of her suitability.
* Legal Duty: The express term of the employment contract required disclosure of her disciplinary record. - Loan Application:
* A person applies for a mortgage but fails to disclose significant outstanding debts, which would influence the lender’s decision to approve the loan.
* Legal Duty: Financial agreements often impose a statutory or contractual duty to disclose material liabilities.
Key Point: A failure to disclose is fraudulent if done dishonestly, with intent to gain or cause loss.
What are the Actus Reus (AR) and Mens Rea (MR) of fraud by abuse of position under s 4?
Actus Reus:
1. Occupying a position of trust where the defendant is expected to safeguard the financial interests of another.
2. Abusing that position (by act or omission).
Mens Rea:
1. Dishonesty (apply the Ivey test).
2. Intention to make a gain for oneself or another, or to cause loss to another, or expose another to the risk of loss.
What scenarios meet the AR of fraud by abuse of position?
Positions of Trust:
○ Trustee and beneficiary.
○ Director and company.
○ Employer and employee.
○ Professional and client.
○ Agent and principal.
Examples:
- Employee accessing company software to sell products to a competitor- Fraud by abuse of position.
- A care worker grossly overcharging a vulnerable client (Carys)- Fraud by abuse of position.
Type of charge
Either way
