Fraud
Background to the Fraud Act 2006
- Previously the offences of deception under Theft Act 1968, but repealed and made into single
offence of fraud under Fraud Act 2006
- Old deception offences too specific and narrowly defined
The offence of fraud
- Fraud Act 2006 criticised because although it simplifies the law, it brings in an offence that is
overbroad and too vague to meet obligation under Article 7, according to Professor Ormerod
- Can be committed in 3 ways
• s.2 — By false representation
• s.3 — by failing to disclose information
• s.4 — by abuse of position
- No definition of the word ‘fraud’ under Act
- Does not require D to have actually obtained anything, unlike old deception offences
• Criticised by Professor Ormerod for criminalising lying
Fraud by false representation
- s.2(1) — person in breach of section if he (a) dishonestly makes a false representation, and (b)
intends, by making representation (i) to make a gain for himself or another, or (ii) to cause loss to
another or to expose another to a risk of loss
- AR: Making a false representation
• Making a false representation
• Question of fact determined by jury
• Encompasses AR and MR element
• s.2(2) — 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
• ‘Misleading’ makes the offence wide in scope
• Definition of representation under s.2(3) — can be made about a fact or law, and includes
representation about person’s state of mind
• s.2(4) — representation may be expressed or implied
• Barnard [1837] — D entered shop in Oxford wearing university cap and gown as an express
representation that he was part of Oxford University, which induced shopkeeper to sell him
goods on credit
• Harris [1975] — held that customer who books into hotel makes implied representation that
he intends to pay bill at the end of his stay
• DPP v Ray — customer ordering food at restaurant makes implied representations that he
intends to pay for food (continuing representation)
• Metropolitan Police Commissioner v Charles [1976] — D’s bank account was overdrawn
and he could not cash anymore than one cheque a day, but he went to a casino and
guaranteed 25 cheques. Implied false representation that he was authorised to use
chequebook
• Lambie [1981] — legal ruling in Charles applies to credit cards
• Can be made by words or conduct
• Idrees v DPP [2011] — D had another person do his theory test for him
• O’Leary [2013] — D convicted after visiting elderly victims with dementia demanding they
pay for work he did to roof, even though this was false
, • Agrigoroaie and Savoae [2015] — Ds convicted of fraud by false representation from
phishing (sending emails to people pretending to be a financial institution and prompting
reader to enter their bank details)
• s.2(5) — representation is made if it is submitted in any form to any system or device
designed to receive, convey or respond to communications
• Not possible to deceive machine under old law (Davies v Flackett [1972]), but s.2(5) shows
that you can, showing that the Act is appropriately made to adapt to modern situations
involving modern technology
- MR: Dishonesty, knowledge that the representation is or might be false, intention to make a gain
for himself or another, or to cause loss to another, or to expose another to a risk of loss
• Dishonesty
• Ivey test, confirmed by R v Barton [2020]
• D could potentially absolve himself of liability by arguing that he honestly believed he had a
right in law to the property, or owner would have consented, or owner could not be found by
taking reasonable steps, which is a negative aspect
• Intention to gain or cause loss
• s.5(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; (c) and ‘property’ means any
property whether real or personal (including things in action and other intangible property).
• s.5(3) — ‘Gain’ includes a gain by keeping what one has, as well as a gain by getting what one
does not have.
• s.5(4) — ‘Loss’ includes a loss by not getting what one might get, as well as a loss by parting
with what one has.
• Gilbert [2012] — held that causative link must be established between the intention to make a
gain for himself or another, or to cause loss to another or to expose another to a risk of loss, and
the false representation made by D
Fraud by failing to disclose information
- s.3 — A person is in breach of this section if he— (a) dishonestly fails to disclose to another
person information which he is under a legal duty to disclose, and (b) intends, by failing to
disclose the information— (i) to make a gain for himself or another, or (ii) to cause loss to
another or to expose another to a risk of loss.
- AR: failing to disclose information which he has a legal duty to disclose
- MR: dishonesty, intention to make a gain for himself or another, or to close loss to another, or to
expose another to a risk
- ‘Legal duty’ means ‘duties under oral contracts as well as written contracts’
- Firth [1989] — D failed to disclose that some of his patients were private patients, holding back
revenue for the hospital
- R v D [2019] — D made representation to local authority that she was no longer a resident at a
property and should not have to pay council tax, although she remained a resident. Trial judge
ruled that the charge of fraud by failing to disclose information should be terminated, but
prosecution appealed against ruling. No statutory authority or documentation that imposed duty,
so appeal was quashed
Fraud by abuse of position
- s.4 — person in breach if he— (a) occupies a position in which he is expected to safeguard, or
not to act against, the financial interests of another person, (b) dishonestly abuses that position,
Background to the Fraud Act 2006
- Previously the offences of deception under Theft Act 1968, but repealed and made into single
offence of fraud under Fraud Act 2006
- Old deception offences too specific and narrowly defined
The offence of fraud
- Fraud Act 2006 criticised because although it simplifies the law, it brings in an offence that is
overbroad and too vague to meet obligation under Article 7, according to Professor Ormerod
- Can be committed in 3 ways
• s.2 — By false representation
• s.3 — by failing to disclose information
• s.4 — by abuse of position
- No definition of the word ‘fraud’ under Act
- Does not require D to have actually obtained anything, unlike old deception offences
• Criticised by Professor Ormerod for criminalising lying
Fraud by false representation
- s.2(1) — person in breach of section if he (a) dishonestly makes a false representation, and (b)
intends, by making representation (i) to make a gain for himself or another, or (ii) to cause loss to
another or to expose another to a risk of loss
- AR: Making a false representation
• Making a false representation
• Question of fact determined by jury
• Encompasses AR and MR element
• s.2(2) — 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
• ‘Misleading’ makes the offence wide in scope
• Definition of representation under s.2(3) — can be made about a fact or law, and includes
representation about person’s state of mind
• s.2(4) — representation may be expressed or implied
• Barnard [1837] — D entered shop in Oxford wearing university cap and gown as an express
representation that he was part of Oxford University, which induced shopkeeper to sell him
goods on credit
• Harris [1975] — held that customer who books into hotel makes implied representation that
he intends to pay bill at the end of his stay
• DPP v Ray — customer ordering food at restaurant makes implied representations that he
intends to pay for food (continuing representation)
• Metropolitan Police Commissioner v Charles [1976] — D’s bank account was overdrawn
and he could not cash anymore than one cheque a day, but he went to a casino and
guaranteed 25 cheques. Implied false representation that he was authorised to use
chequebook
• Lambie [1981] — legal ruling in Charles applies to credit cards
• Can be made by words or conduct
• Idrees v DPP [2011] — D had another person do his theory test for him
• O’Leary [2013] — D convicted after visiting elderly victims with dementia demanding they
pay for work he did to roof, even though this was false
, • Agrigoroaie and Savoae [2015] — Ds convicted of fraud by false representation from
phishing (sending emails to people pretending to be a financial institution and prompting
reader to enter their bank details)
• s.2(5) — representation is made if it is submitted in any form to any system or device
designed to receive, convey or respond to communications
• Not possible to deceive machine under old law (Davies v Flackett [1972]), but s.2(5) shows
that you can, showing that the Act is appropriately made to adapt to modern situations
involving modern technology
- MR: Dishonesty, knowledge that the representation is or might be false, intention to make a gain
for himself or another, or to cause loss to another, or to expose another to a risk of loss
• Dishonesty
• Ivey test, confirmed by R v Barton [2020]
• D could potentially absolve himself of liability by arguing that he honestly believed he had a
right in law to the property, or owner would have consented, or owner could not be found by
taking reasonable steps, which is a negative aspect
• Intention to gain or cause loss
• s.5(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; (c) and ‘property’ means any
property whether real or personal (including things in action and other intangible property).
• s.5(3) — ‘Gain’ includes a gain by keeping what one has, as well as a gain by getting what one
does not have.
• s.5(4) — ‘Loss’ includes a loss by not getting what one might get, as well as a loss by parting
with what one has.
• Gilbert [2012] — held that causative link must be established between the intention to make a
gain for himself or another, or to cause loss to another or to expose another to a risk of loss, and
the false representation made by D
Fraud by failing to disclose information
- s.3 — A person is in breach of this section if he— (a) dishonestly fails to disclose to another
person information which he is under a legal duty to disclose, and (b) intends, by failing to
disclose the information— (i) to make a gain for himself or another, or (ii) to cause loss to
another or to expose another to a risk of loss.
- AR: failing to disclose information which he has a legal duty to disclose
- MR: dishonesty, intention to make a gain for himself or another, or to close loss to another, or to
expose another to a risk
- ‘Legal duty’ means ‘duties under oral contracts as well as written contracts’
- Firth [1989] — D failed to disclose that some of his patients were private patients, holding back
revenue for the hospital
- R v D [2019] — D made representation to local authority that she was no longer a resident at a
property and should not have to pay council tax, although she remained a resident. Trial judge
ruled that the charge of fraud by failing to disclose information should be terminated, but
prosecution appealed against ruling. No statutory authority or documentation that imposed duty,
so appeal was quashed
Fraud by abuse of position
- s.4 — person in breach if he— (a) occupies a position in which he is expected to safeguard, or
not to act against, the financial interests of another person, (b) dishonestly abuses that position,
