Fraud Revision

FRAUD REVISION

-      There were eight offences under the Theft Act 1968 and 1978 which were based on deception. 

-      All eight have been abolished 

-      The Fraud Act 2006 replaced them with one offence of fraud and one offence of dishonestly obtaining services. 

-      The common law offence of conspiracy to defraud has not been abolished but there have been sustained calls for this to happen. 

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.

Lambie[1981] 2 All ER 776

D has a credit card with a limit of £200, has a balance on that of £900. The bank had sought to recover the card and D had agreed to surrounded it but didn’t. she then went on to spend another £10.35, she is representing that she has the banks authority to use the card and payment would be made on it. 

-      The representation must be made by the defendant. 

-      There is no requirement that the representation is actually made to another person  (see s. 2(5) as relating to representations made to divides) and even when made to another person, it is irrelevant whether or not that other person actually believed the representation or acted upon it. 

-      Silence? – unclear, as noted in Lambie, can be expressed or implied conduct. 

-      The representation can be express or implied by (s.2(4)). 

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 receive, convey or respond 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 reasonable 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…