Fraud and Making Off Without Payment

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  • Created by: _laurenb
  • Created on: 05-04-16 14:16

FRAUD

DEFINED IN THE FRAUD ACT 2006

BY:

1. FALSE REPRESENTATION

2. OBTAINING SERVICES DISHONESTLY

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FRAUD by False Representation

Section 2 of the Fraud Act 2006

D must:

'(a) Dishonestly make a false representation and

(b) intend, by making the representation -

(i) to make a gain for himself or another

(ii) to cause the loss of another/expose another to a risk of loss''

ACTUS REUS

Making a false representation

MENS REA

Being dishonest, knowing the representation if false and intentending to gain or cause a loss

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Representation

DEFINED IN SECTION 2(3) OF THE FRAUD ACT 2006

'any representation as fact or law, including a representation as to state of mind of -

(a) a person making the representation OR

(b) any other person

fact - decieving someone about a fact that isn't true, such as that you own a house you don't own

law - decieving about a piece of law

state of mind - decieving someone about what you are thinking, such as saying you will pay when you have no intention of doing so

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Express Representation

EXPRESS REPRESENTATION

is physical representation!

such as writing something or saying something!

SILVERMAN

  • a work man charged excessive prices for work he had done
  • this was FALSE REPRESENTATION as he said a price that was false
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Implied Representation

4 Ways to Do So

1. By Conduct

BARNARD - implied he was a commoner by dressin as one in order to get items from a shop placed on credit

2. By Intention to Not Pay for a Meal

DPP v RAY - D ate from a restaurant where he intended to pay but did not (he developed the intent to not pay, despite his initial intent and so he was convicted!)

3. By the Use of a Cheque

GILMARTIN - used out of date cheques; cheques imply the recipient will be able to receive money when presenting the cheque

4. By the Use of a Cheque Guarantee Card

MPC V CHARLES - excessively used his CGC; using it implied he had the permission of the bank, when he did not

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What Makes Representation False?

WHEN...

1. it is untrue or misleading

2. D knows it is untrue and misleading

WHAT IS THE DEFINITION OF 'MISLEADING'?

FRAUD LAW: GOVERNMENT RESPONSE TO CONSULTATION 2004:

'something which is less that wholly true and capable of interpretation to the detriment of the victim'

SO... something which isn't true and which the victim could see to cause a loss to himself

D will then be guilty regardless of whether he is believed by the victim or gains from the victim

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What is Property?

USING, THE SAME DEFINITION AS WITHIN FRAUD:

Section 5 of the Fraud Act 2006:

'any property whether real or personal, including things in action and other intangible property'

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The Mens Rea...

  • DISHONESTY (USING THE GHOSH TEST:

1. would a reasonable and honest person see the defendant's act as dishonest?

2. could the defendant have seen this act as dishonest?

BOTH AREAS MUST APPLY FOR A DEFENDANT TO BE GUILTY!

  • INTENT TO GAIN/ CAUSE RISK OF LOSS

If the defendant has intent, he has intent...regardless of whether he achieves or not!

LAVERTY

  • D switched the number plates of a car he wanted to see, in order for it to look like his
  • he sold it to V, but V did not need to know the owner to buy the car
  • he therefore failed with is false representation... but he still intended and so was still guilty

D MUST KNOW WHAT HE IS REPRESENTING IT FALSE... OR HE CANNOT BE LIABLE!

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FRAUD By Obtaining Services Dishonestly

REPLACES SECTIONS OF THE THEFT ACT 1968

ACTUS REUS

an act - not an omission - which obtains services not paid for or not paid for in full

MENS REA

dishonestly, with knowledge that the services are or may be avaiable on the basis payment has beenmade or will be made for them with intention not to pay or pay in full.

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The Actus Reus

obtain:

services must actually be obtained... intent to obtain alone is not enough

services:

such as using a bus pass that isn't yours, using a false credit car to buy goods online

not paid for:

MUST be either not paid for at all, or not paid for in full

BUT BE BY AN ACT - NOT AN OMISSION!

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The Mens Rea

DISHONESTY:

using the Ghosh 2-part test:

1. would a reasonable and honest person see D's act as dishonest?

1. could D have seen his act as dishonest?

KNOWLEGDE:

D must know that, usually, the services he is trying to obtain need to be paid for

INTENTION TO NOT PAY/PAY IN FULL:

If D thought someone else had paid for his meal and so left the restaurant, he wouldn't be guilty... he has to intend not to pay or pay in full

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MAKING OFF WITHOUT PAYMENT

WAS INTRODUCED TO REPLACE SECTIONS OF THE THEFT ACT 1968, WHICH WAS FLAWED...

GREENBERG

  • D drove out of a petrol station, after filling up his car, without paying
  • found not guilty under the Theft Act
  • was stated he had no appropriated as, when the petrol was in his car, it was already his

UNDER MOWOP, HE WOULD BE CONVICTED!

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THE ACTUS REUS AND MENS REA

ACTUS REUS

D must make off with goods or a service that has been supplied, requiring payment on the spot which D has not paid for

MENS REA

D must have done so dishonestly, with knowledge that payment was required on the spot and an intention to avoid payment

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The Actus Reus

Makes Off:

D must have left the scene where pay was expected

MCDAVITT: D intended to not pay for his meal, but stayed as the police were coming; he did not 'make off' and so could not be charged

Goods Supplied or Services Done:

if the service is not done or is incomplete, the defendant cannot be charged

TROUGHTON V MET POLICE: D ordered a cab home but the cab driver did not drop him to his exact address; was held the services had not been complete

Payment Required on the Spot:

VINCENT: D stayed at hotel where he agreed to pay later with manager; payment was not required on the spot so D could n ot be convictd for not paying

D has Not Paid For:

the payment by the defendant must be of the amount due

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The Mens Rea

DISHONESTY (using the Ghosh 2-Part Test)

1. Would a reasonable and honest person have seen D's act as dishonest?

2. Could D have seen his act as dishonest?

KNOWLEDGE THAT PAYMENT ON THE SPOT IS REQUIRED

If D is unaware payment is required there and then, he cannot be found guilty

INTENTION TO AVOID PAYMENT

D must have permanent intent to not pay the amount due

ALLEN: D did not pay for hotel room; said he was intending to pay in the future when he recieved money... held he was no liable as he did not have permanent intent not to pay the amount due

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