Fraud by False Representation

• Set out in Fraud Act 2006
• Fraud Act 2006 made three ways to commit fraud
  • Fraud by false representation
  • Fraud by failing to disclose information - not on syllabus
  • Fraud by abuse of position - not on syllabus

• s2(1) Fraud Act 2006 - someone commits fraud by false representation if 'he dishonestly make a false representation and intends, by making the representation, to make a gain for himself or another, or to cause loss to another, or to expose another to a risk of loss'
  

Elements:

• Representation (AR)
• False (AR)
• Dishonestly (MR)
• Knowing that the representation is, or might be untrue or misleading (MR)
• w/intent to make a gain for himself or another, to cause loss to another, or to expose another to a risk of loss (MR)

What is a representation - a claim or statement made by one party in order to induce another into doing something

s2(3) - a representation can be:

• as to fact
  • such as claiming some jewellery is gold when it actually isn't
• As to law
  • such as a statement about the legallity of a transaction
    • like claiming that a loan is unsecured when it actually is
• As to D's or another's state of mind
  • such as D knowing or thinking something that V doesn't
    • like when D says that he will pay a bill, when he actually does not intend to

• s2(4) - representation can be express or implied
• s2(5) - representation can be made to a person or a machine

• Can occur when the representation is presented through virtually any means - e.g. spoken, written, or even posting on a website. A written representation also includes D showing a false ID or providing a false referecne

Example Cases (note: these are pre-2006, so they are only persuasive)

Barnard (1837) 

• D went into shop wearing university cap + gown but was not a fellow
• D convinced shopkeeper to sell him goods on credit by an express representation that he was an Oxford fellow

Silverman (1987)  £

• Ds gave excessive quote to vulnerable Vs for work needing doing on their flat
  • An express untrue representation as to the actual value of the work

• Done through conduct
• Nothing needs to be communicated through speaking or writing

Example cases

Barnard

• Dressing in Oxford attire + pretending to be an Oxford fellow

Lambie (1981)

• D paid for something w/credit card after bank had withdrew ability to do so

Gilmartin

• D paid for supplies w/cheques knowing that they would bounce
• By paying w/cheues, D implied that there was enough moey to pay for the items

• s2(5) covers many types of machines and electronic devices that fraud can be commited with

• s2(2) a representation is false if
  • (a) it is untrue or misleading and
  • (b) the person making it knows that it is, or might be, untrue or misleading

• Q: What type of crime is fraud?
• A: Conduct crime

• Q: Does it matter if anyone believes the lie?
• A: No. Whether anyone believes the false representation is irrelevant. It only matters that the respresentation was false/misleading and the person knew or suspected as such

• Q: uses words 'untrue' and 'misleading'. 'Untrue' is matter of fact but 'misleading' = problematic + undefined in Act. What sheds light on its meaning?
• A: Fraud Law: Government Response to consultation (2004), which defines 'misleading' as 'less than wholly true and capable of interpretation to the detriment of V'

• Q: What is the situation if the representation was true when it was made, but laterbecomes false?
• A:In DPP v Rai (2000), a representation that was true when made became false, as D failed to notify the relevant authority to a change in his circumstances. This amounts to fraud

• Follows the Ghosh Test

• D must know representation is, or might be, untrue or misleading
• subjective - focus is around what the D knew

• D only needs intention
  • No requirement for D to be successful in making a gain/causing a loss
• s5 - gain + loss = money/property
• gain/loss can be permanent or temporary

Kapitene

• D = illegal immigrant who got job fraudulently
• D's gain = wages received
• V's loss = wages paid out