Fraud

Question 1

D makes a false representation (s2 fraud)

Answer 1

R v Barnard: D wearing cap and gown of an Oxford student was representing that he was a student of Oxford University
R v Lambie: using a credit card is representing not only that the card is yours, but that you’re authorised to use it
DPP v Ray: implied continuing representation that you will pay when going to a restaurant, otherwise they would demand upfront payment

Question 2

D must know that the statement is or might be untrue/misleading (s2 fraud)

Answer 2

R v Augunas: emphasised it’s a subjective test, but if D wilfully shuts their eyes to the facts it will be equivalent to knowledge

Question 3

Intention to make a gain or cause a loss (s2-4)

Answer 3

R v Gilbert: intention must be causal; opening a bank account is not a gain in itself, and the suspicion that he would use the account to make gains is too remote for the offence to be made out

Question 4

Dishonesty (s2-4)

Answer 4

Ivey v Genting Casinos: test applies
Laird: points out that it might be assumed Parliament intended dishonesty to have the meaning it had when the Act was passed (Ghosh test)- however it’s more likely that Parliament intended ‘dishonesty’ to have whatever common law definition it’s given

Question 5

Legal duty to disclose (s3 fraud)

Answer 5

Law Commission Report No. 276, endorsed in the Act’s explanatory notes: duty may exist if D’s failure to disclose gives V a cause of action for damages, but also if the law gives V a right to set aside any change in his or her legal position
R v D: “It is quite wrong to equate liability to pay with a liability to notify”
R v White: courts require proof of a specific legal obligation, not enough to argue it was obvious to D

Question 6

Abuse of position D is expected to safeguard (s4 fraud)

Answer 6

Collins: “Disloyalty, on this account, is criminalised because it has a corrosive effect in an important basic value held by society: the importance of trust relationships”
R v Valujevs: D who assumes responsibility for V’s earnings is clearly expected to give them to V without a reduction; “Section 4 does not apply to those who simply supply accommodation, goods, services, or labour”
R v Woods: deputy manager of betting shop changing customer’s bet on a horse race was abuse of such a position

Question 7

Possession of articles for use in fraud (s6)

Answer 7

Ormerod: ‘lamentable’ there is no MR requirement
HM Government: to attract same case law of section 25 of the Theft Act, whereby D is required to have the article for intention or purpose that it be used in the course/connection with a fraud offence

Question 8

Obtaining services dishonestly (s11)

Answer 8

Ormerod: offence seems to cover illegally downloading music

Question 9

Academics

Answer 9

G. Virgo: “Initial concerns about the ambit and interpretation of the legislation have largely proved unfounded. It remains a model of criminal legislation which remains fit for purpose”
Ormerod (in regards to s2): “The effect is that D may be liable even though V knows that D’s statement is false or V would have acted in the same way even if he had known of the falsity… This wholly inchoate offence appears to criminalise lying.”