Fraud and making off without payment

  • Created by: laurynbo
  • Created on: 17-06-18 13:47

Fraud Act 2016

The orevious offences have been replaced with the offence of fraud. The main way is fraud by false representation (S2). The Fraud Act 2006 also creates other offences connected to fraud one od these is obtaining services dishonestly (S11)

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Fraud by false representation

Fraud by false representation is committed if D: a) dishonestly makes a false representation and b) intendes, by making the representation- (i) to make a gain for himself or another, or (ii) to cause loss to another or to expose another to risk the loss. 

The actus reus of the offence is that the defendant must make a representation which is false. The mens rea has three parts to it. The defendant must be dishonest, he must know or believe the representation to be untrue or misleading and there must be and intetin to gain or cause a loss. 

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Representation

The Fraud Act gives some help with what is meant by a representation. Section 2(3) states that 'represnation' means any representation as to fact or law, including making a representation as to the state of mine of- (a) the person making the representation, or (b) any other person. 

A representation as to fct clearly covers situations where someone use a false identity or states that they own property when they do not. 

Representation can be made to a person or to a machine. Section 2(5) specifically covers all devices and systems. 

Espress representation can be shown is the case of siverman. 

Implied representation, there are many ways in which it is possible to make an implied representation through one's conduct. This can be shown in the case of Lambie. 

Other implied representations can include intention for paying for a meal in the case of DPP v Ray, paying by cheque i the case of Gilmartin and the use of a cheque guarantee card in the case of Metroplitan Police Commander v Charles. 

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False

For the purposes of the Fraud Act 2106  representation is false if (a) it is untrue or misleading, and (b) the person making it knows that it is, or might be, unture or misleading. 

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Gain or loss

This offence requires that D intends to make a gain for gimself or another, or to cusse loss to another, or to expose another to the risk of loss. 

A gain or loss can be temporary or permenant as shown in the case of Kapiene. 

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Mens rea

The defendant must be dishonest, know or believ the representation to be untrue or misleading and have an intention to make a gain or cuase a loss. 

Dishonesty is set out in the Ghosh Test. It sets out two stages. The first question is whether a defedant's behaviour would be regarded as dishonest by the ordinary standards of reasonable and honest people. The second question is whether the defendant was aware that his conduct was dishonest and would be regarded as dishonest by reasobale and honest people. 

Know or believe the representation to be untrue or misleading- to be guilty the defendant must know that the representation he or she is making is. or might be, unture or misleading.

THe owrding of the offence means that it is not necessary for the fruad to succeed. It is only necerssary for the defendant to intent to make a gain or cause a loss. This can be shown in the case of Laverty. 

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Obtaining services dishonestly

This offence was created to replease subsection 1 ans 2 Theft Act 1978 and also a section 15A Theft Act 1968.

The actus reus of this offenc has everal parts to it. These are that thee must be an act; the offence cannot be committed ny an omission, obtains, services that are not paid for or not paid in full. The means rea cnsists of three parts that are dishonesty, knowledge that the services are, or might be, being made avaliable on the basis that payment has been made or will be made for them and the intetion not to pay or not to pay in full. 

Obtains- the offence requires that the services are actually obtained.

Services- the defendant only has to obtain the service dishonestly, it is not necessary to show that he has decieved anyone. 

Not paid for means that the offenced is only committed if the defendant does not pay for anything or does not pay in full.  

Dishonesty- Ghost test 

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Obtaining services dishonestly

Knowledge is that the defendant must know that the services are, or might be, avaliable only on the basis that payment has been or will be made for them. 

Intention not to pay means that the prosecutions must prove that the defendant intended not to pay or not to pay in full for the services. 

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Making off without payment

This offence was created when it became obvious that theft Act 1968 left gaps in the law where D was not guilty of any offence, even though his conduct would be seen as 'criminal' by most people. One of these gaps came apparent in Greenburg. 

Actus reus is that D makes off, goods had been supplied or a serivce done, payment is required on the spot and D has not paid as required. 

Makes is is where the defendant leaves the scene where payment was ecpected- McDavitt. 

For goods and services supplied or service done if the service is not completed then there is no offence. 

Payment required on the spot means that it has to be proved that payment on the spot was required or expected. This is seen in Vincent. 

D has not paid- the payment must be of the amount due. 

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Making off without payment

The mens rea of this offence is dishonesty, knowledge that payment on the spot is required and the intention to avoid payment. 

For dishonesty the same test (Ghosh test) is used.

Kowledge that payment on the spot is required- if the defendant does not kow this then he is not guilty. 

Intention to avoid payment- it must be permentant as shown in Allen. 

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