Fraud

3 ways of committing Fraud:

1 - Section 2 - by false representation

2 - Section 3 - by failing to disclose information

3 - by abuse of position

Section 2: False representation

Actus Reus

• making a false representation,
• in order to make a gain for yourself or another, 
• or to cause loss to another,
• or to expose another to a risk of a loss.

Under S2(3), a representation is an implied or express representation as to fact or law, including a representation as to the state of mind of the maker or another person.

A statement is false if it is either untrue or misleading. See case of Lambie.

You can commit fraud to any person or machine because S2(5) says a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to recieve, convey or respont to communications (with or without human intervention). 

Mens Rea

• the representation made must be a false one, see R v Ghosh [1982]
• knowing it is untrue or might be misleading or might be false
• it must be made knowing it will cause a gain to the defendant, or knowing that it will, or will cause a risk of, a loss to another 

The R v Ghosh test has two stages:

1- Do the jury, by the standards of ordinary and resonable people, believe that the defendant acted dishonestly? This stage is objective. 

2- Does the defendant, by those standards, consider that he acted dishonestly? This stage has a subjective approach. 

S2 Theft act – negative definitions of dishonesty do not apply to anything other than theft. In order to determine dishonesty in offences other than theft you must consider common law definition in Ghosh.

The prosecution does not need to prove an actual gain or loss. Gain includes a gain by keeping what one has, as well as a gain by getting what one does not have, and loss includes a loss by not getting what one might get, as well as a loss by parting with what one has.

For the purposes of the Fraud Act 2006, the terms ‘gain’ and ‘loss’ are further defined by s.5, which provides:

(1) The references to gain and loss in sections 2 to 4 are to be read in accordance with this section.

(2) "Gain" and "loss"- (a) extend only to gain or loss in money or other property; (b) include any such gain or loss whether temporary or permanent; and "property" means any property whether real or personal (including things in action and other intangible property)

(3) "Gain" includes a gain by keeping what one has, as well as a gain by getting what one does not have.

(4) "Loss" includes a loss by not getting what one might get, as well as a loss by parting with what one…