Fraud by Abuse of Position: s. 4 Fraud Act 2006
A person is guilty of fraud by abuse of position, if he occupies a position, which he is
expected to safeguard, or not to act against the financial interests of another person,
and dishonestly abuses that position, with the intention to make a gain/cause a loss.
Actus Reus
(i) Occupying a position of trust:
The defendants were unlicensed gangmasters, who took illegitimate
deductions from worker’s earnings, charged excessive rental payments,
and enforced fines. The court held that parliament did not intend to limit
the operation of s.4 Fraud Act 2006 to situation where a legal duty existed
(this section extends to moral obligations as well). There was evidence
that the gangmaster had assumed control of, and responsibility for,
collecting the worker’s wages or that they controlled the wages they were
handed over. Hence, the defendant was evidenced to be in a position of
trust. Whether D is in a position of trust is assessed objectively. Valujevs
[2014].
Fiduciary relationship is a strong indicator of such a position” Tarling
(1998).
Non-fiduciary relationships can also amount to a position of trust.
o Care home manager took
over the finances of one of
the vulnerable residents but
withdrew money for her
o own benefit, correctly
prosecuted as a fraud by
abuse of position of trust
o Care home manager took
over the finances of one of
the vulnerable residents but
withdrew money for her
A person is guilty of fraud by abuse of position, if he occupies a position, which he is
expected to safeguard, or not to act against the financial interests of another person,
and dishonestly abuses that position, with the intention to make a gain/cause a loss.
Actus Reus
(i) Occupying a position of trust:
The defendants were unlicensed gangmasters, who took illegitimate
deductions from worker’s earnings, charged excessive rental payments,
and enforced fines. The court held that parliament did not intend to limit
the operation of s.4 Fraud Act 2006 to situation where a legal duty existed
(this section extends to moral obligations as well). There was evidence
that the gangmaster had assumed control of, and responsibility for,
collecting the worker’s wages or that they controlled the wages they were
handed over. Hence, the defendant was evidenced to be in a position of
trust. Whether D is in a position of trust is assessed objectively. Valujevs
[2014].
Fiduciary relationship is a strong indicator of such a position” Tarling
(1998).
Non-fiduciary relationships can also amount to a position of trust.
o Care home manager took
over the finances of one of
the vulnerable residents but
withdrew money for her
o own benefit, correctly
prosecuted as a fraud by
abuse of position of trust
o Care home manager took
over the finances of one of
the vulnerable residents but
withdrew money for her
