Criminal law – fraud notes
General notes
- The offence of fraud involves the interference of the victim’s property/services and the
manipulation of the victim.
- The law on fraud offences is now consolidated under the Fraud Act 2006 and under this Act
there are three ways of committing fraud.
- There is no need for the prosecution to prove which of the three means was used so long
as the jury is convinced that at least one of them was used.
- The false representation must be made by the defendant and the defendant must know that
the statement is or may be untrue or misleading.
History of the law – prior to the Fraud Act 2006
- The Theft Act 1968
- The Theft Act 1978
- There were eight offences of deception which were repealed by the Fraud Act 2006
- Prior to the Fraud Act 2006 a number of deception offences were contained in the Theft Acts
of 1968 and 1978.
- The various offences were repealed by the Fraud Act 2006.
- The old offences were complicated – the focus was on the actus reus and they were
narrowly defined – they often overlapped and caused great difficulty in deciding under
which offence to charge – miscarriages of justice.
- Another issue with the old deception offences was that deception could only be practised
against a person not a machine – did not extend to technological scams - See Davies v
Flackett [1973] RTR 8.
Fraud Act 2006
- This came about as a result of the Law Commission Report ‘Fraud’ (Law Com No.276) led to
the enactment of the Act.
- Fraud Act 2006 came into force on 15th January 2007
- The Act replaced the numerous old offences with one offence of fraud.
- Fraud carries a maximum sentence of 10 years imprisonment.
S.1 of the Fraud Act 2006 creates 3 ways in which fraud is committed:
1. By False Representation (s.2)
2. By Failure to Disclose Information (s.3)
3. By Abuse of Position (s.4)
Fraud is not defined under the Act.
- There is a separate offence of obtaining services dishonestly which is retained under s11 of
the Theft Act and carries a maximum sentence of 5 years.
- Most of the offences regarding fraud have been repealed from the Theft Act and moved to
the Fraud Act but not all of them – there are some which remain which we would consider
fraud.
, Actus Reus Mens Rea
Dishonesty
Make a False
Representation (Ghosh/Ivey Test but
not s.2 Theft Act
OR
1968) AND
With Intention to Make
Fail to Disclose a Gain for Himself or
Information OR Cause a Loss to Another
- need not materialise
Knowledge that the
Abuse a position of
Representation is or
trust
Might be False (s2)
- Gain or loss extends to property as well and is given the same meaning as under the Theft
Act.
- ^ there need not be any actual gain or loss but a mere intention which does not need to
materialise.
- Gain means keeping what one has as well as gaining what one does not have – loss can be
temporary or permanent – exposure to the risk of loss is enough.
Dishonesty – the Ivey test
The Fraud Act 2006 does not define dishonesty and so the Ivey test is applied – note that the
provisions dealing with dishonesty in the Theft Act 1968 do not apply to the fraud offences.
Ivey v Genting Casinos UK Ltd [2017]
1 The jury must find that the actual state of the defendant’s mind was dishonesty based on
D’s knowledge and belief as to the facts (SUBJECTIVE limb). This is just a finding of fact for
the jury - See Barton & Booth v R [2020] EWCA Crim 575
2 2. Was what was done dishonest according to the ordinary standards of reasonable
and honest people? If no, D is not guilty. (the OBJECTIVE limb) If yes D is guilty. There is no
longer a need to go on to the next stage of looking at whether D would have realised this.
This is essentially the main test!
General notes
- The offence of fraud involves the interference of the victim’s property/services and the
manipulation of the victim.
- The law on fraud offences is now consolidated under the Fraud Act 2006 and under this Act
there are three ways of committing fraud.
- There is no need for the prosecution to prove which of the three means was used so long
as the jury is convinced that at least one of them was used.
- The false representation must be made by the defendant and the defendant must know that
the statement is or may be untrue or misleading.
History of the law – prior to the Fraud Act 2006
- The Theft Act 1968
- The Theft Act 1978
- There were eight offences of deception which were repealed by the Fraud Act 2006
- Prior to the Fraud Act 2006 a number of deception offences were contained in the Theft Acts
of 1968 and 1978.
- The various offences were repealed by the Fraud Act 2006.
- The old offences were complicated – the focus was on the actus reus and they were
narrowly defined – they often overlapped and caused great difficulty in deciding under
which offence to charge – miscarriages of justice.
- Another issue with the old deception offences was that deception could only be practised
against a person not a machine – did not extend to technological scams - See Davies v
Flackett [1973] RTR 8.
Fraud Act 2006
- This came about as a result of the Law Commission Report ‘Fraud’ (Law Com No.276) led to
the enactment of the Act.
- Fraud Act 2006 came into force on 15th January 2007
- The Act replaced the numerous old offences with one offence of fraud.
- Fraud carries a maximum sentence of 10 years imprisonment.
S.1 of the Fraud Act 2006 creates 3 ways in which fraud is committed:
1. By False Representation (s.2)
2. By Failure to Disclose Information (s.3)
3. By Abuse of Position (s.4)
Fraud is not defined under the Act.
- There is a separate offence of obtaining services dishonestly which is retained under s11 of
the Theft Act and carries a maximum sentence of 5 years.
- Most of the offences regarding fraud have been repealed from the Theft Act and moved to
the Fraud Act but not all of them – there are some which remain which we would consider
fraud.
, Actus Reus Mens Rea
Dishonesty
Make a False
Representation (Ghosh/Ivey Test but
not s.2 Theft Act
OR
1968) AND
With Intention to Make
Fail to Disclose a Gain for Himself or
Information OR Cause a Loss to Another
- need not materialise
Knowledge that the
Abuse a position of
Representation is or
trust
Might be False (s2)
- Gain or loss extends to property as well and is given the same meaning as under the Theft
Act.
- ^ there need not be any actual gain or loss but a mere intention which does not need to
materialise.
- Gain means keeping what one has as well as gaining what one does not have – loss can be
temporary or permanent – exposure to the risk of loss is enough.
Dishonesty – the Ivey test
The Fraud Act 2006 does not define dishonesty and so the Ivey test is applied – note that the
provisions dealing with dishonesty in the Theft Act 1968 do not apply to the fraud offences.
Ivey v Genting Casinos UK Ltd [2017]
1 The jury must find that the actual state of the defendant’s mind was dishonesty based on
D’s knowledge and belief as to the facts (SUBJECTIVE limb). This is just a finding of fact for
the jury - See Barton & Booth v R [2020] EWCA Crim 575
2 2. Was what was done dishonest according to the ordinary standards of reasonable
and honest people? If no, D is not guilty. (the OBJECTIVE limb) If yes D is guilty. There is no
longer a need to go on to the next stage of looking at whether D would have realised this.
This is essentially the main test!
