Topic 8 - Fraud Flashcards
(45 cards)
What is the main offence defined under the Fraud Act 2006?
Fraud
The Fraud Act 2006 replaced old offences related to deception with a single offence of fraud.
List the three different ways in which fraud can be committed according to the Fraud Act 2006.
- Fraud by false representation, section 2
- Fraud by failure to disclose, section 3
- Fraud by abuse of position, section 4
What is the maximum penalty for fraud under the Fraud Act 2006?
Ten years in prison or an unlimited fine
This penalty applies regardless of the method of fraud.
What is required for the actus reus of fraud by false representation?
A false representation
There is no requirement that the representation deceives anyone.
Define ‘false representation’ as per the Fraud Act 2006.
A representation that is untrue or misleading
A representation can be express or implied.
What does ‘representation’ mean in the context of fraud?
Any representation as to fact or law, including state of mind
This includes both the person making the representation and any other person.
What are the two types of representation mentioned in the Fraud Act 2006?
- Express representation
- Implied representation
True or False: Pure silence can amount to a representation under fraud laws.
False
According to R v Twaite, pure silence without action cannot constitute a representation.
What must be proven regarding a false representation as to state of mind?
The defendant does not hold the belief or opinion they represent
This can be difficult to prove.
What does the mens rea for fraud by false representation include?
- Dishonesty
- Knowledge of false statement
- Intention to make a gain or cause a loss
In fraud, what is meant by ‘gain’ and ‘loss’ according to the Fraud Act 2006?
- Gain or loss in money or property
- Temporary or permanent gain or loss
Fill in the blank: A representation is false if it is _______.
untrue or misleading
What aspect of mens rea requires the defendant to know their statement is false?
Mens rea for the false statement
The defendant must be aware that the statement is untrue or misleading.
What can constitute a false representation in the context of overcharging?
An implied representation that the charge is fair
This can be established in cases of mutual trust.
What was the key finding in R v Silverman regarding overcharging?
False representation arose from circumstances of mutual trust
The builder took advantage of the victims’ gullibility.
True or False: The actual gain or loss must occur for a fraud conviction under the Fraud Act 2006.
False
It is sufficient that the defendant intended to make a gain or cause a loss.
What aspect of mens rea is common to all methods of committing fraud?
Intention to make a gain or cause a loss
What is the requirement for an actual gain or loss in fraud under the Fraud Act 2006?
The requirement of an actual gain or loss is absent; only the intention to make a gain is necessary.
This means that it is sufficient for the defendant to intend to make a gain for themselves or another, or to cause a loss to another.
What are the four intentions that qualify as mens rea under the Fraud Act 2006?
- Intends to make a gain for themselves
- Intends to make a gain for someone else
- Intends to cause a loss to another
- Exposes someone to a risk of loss
What are the three ways to commit fraud as per the Fraud Act 2006?
- Fraud by false representation (section 2)
- Fraud by failure to disclose (section 3)
- Fraud by abuse of position (section 4)
What does fraud by failure to disclose require?
A person must dishonestly fail to disclose information they are legally obligated to disclose and intend to make a gain or cause a loss.
This is outlined in FA 2006, s 3.
What is the actus reus of fraud by failure to disclose?
- Existence of a legal duty
- Failure to disclose the information
What types of legal duties could lead to fraud by failure to disclose?
- Duty arising from statute
- Duty within a transaction of utmost good faith
- Duty contained in contract terms
- Duty arising from custom in a trade
- Duty arising from a fiduciary relationship
What is the test for dishonesty in fraud cases based on?
The test for dishonesty is based on the Ivey v Genting Casinos case.
The test involves assessing the defendant’s knowledge and beliefs regarding the facts and whether they were dishonest by ordinary decent people’s standards.
