Fraud by false rep

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  • Fraud by False Representation S2 Fraud Act 2006
    • Makes a false representation S2 ss(2) - ss(5)
      • S2 (2) False means untrue or misleading, but representation is undefined. Representation is a factual statement made by one party in order to induce another party to do something
      • S2 (3) A representation means any representation as to fact or law, the argument as to whether something is a statement of fact or law is irrelevant.
        • (A statement of fact is straighforward, it could be  a lie that something is silver when it is only silver plated)
        • (A statement of law may be a statement of the effect of a legal document such as a loan or mortgage)
      • S2 (4) A representation may be express or implied.
        • (The representation may be expressly made in many ways, such as written, texted, spoken directly or through a phone or radio, email or website)
          • Silverman - D gave an exessive quotation for work to be done, he had previously built up trust
        • (The representation may be implied by conduct, such as using a credit card, by using this the person represents that he has the authority to use it, he/she would not if it was stolen or over it's limit)
          • Barnard - D went into a shop wearing a cap and gown, and as a result the shopkeeper agreed to sell him goods
          • Lambie - D had a credit card, and on exceeding its limit she was asked to return it. Instead she went on to buy more goods.
          • DPP v Ray - D and friends went to a restaurant with no money. After eating they decided not to pay and left, when a meal is ordered and eaten, this is a representation that the meal will be paid for
          • Gilmartin - D paid for supplies with out dated cheques, by using the cheques he was representing that there were sufficient funds in the account
          • Metropolitan Police Commander v Charles - D misused a cheque guarantee card, he falsely represented that he had the bank's authority to use the card
      • S2 (5) makes it clear that the offence can be committed by making a representation to a machine such as an ATM
    • Dishonestly, The Gosh Test Applies
      • Gosh 1982 (1) would the defendant's behaviour be regarded as dishonest by the standards of reasonable honest people? (2) if yes, was the defendant aware that his conduct would be regarded as dishonest by reasonable and honest people?
        • The first part of the test is objective and the second part is subjective. If both parts  are satisfied the defendant is dishonest
        • The examples of  things that are not dishonest laid out in S2 of the Theft Act 1968 DO NOT apply to fraud offences
    • Knowing that the representation was or might be untrue or misleading
      • The person making the false representation must know that it is untrue or misleading, but they make a decision to make it anyway
        • This does not mean recklessness, actual knowledge that the representation might be untrue rather than an awareness of a risk
    • With intent to make a gain for himself or cause a loss to another or expose another to the risk of loss
      • The key words are 'with intent to', there is no need for anyone to have suffered  a loss, or to be exposed to any loss or even that the defendant makes a gain
        • It is all about what the defendant intends by carrying out his act
        • Both gain and loss mean in money or other property under S5 Fraud Act 2006

Comments

Smith E

The most complicated aspect of the theft topic, represented well here. S2 (4) A is particularly knotty, it therefore really helps to separate the material out, as the student has here. One revision exercise to undertake would be to print the diagram out and then add the key cases. 

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