Fraud & Fraud by Misrepresentation

• What Act discusses Fraud?

  Fraud Act 2006
• How is Fraud explained in s1 of the Fraud Act 2006?

  s1: creates the general offence of fraud which is committed where a person breaches ss. 2, 3, or 4 (there are three different ways of committing the offence)
• What are the three ways that D can commit Fraud?

  1. By false representation
  2. By failing to disclose information
  3. By abuse of position
• Is there a need to prove causation?

  NO
• How is Fraud by Representation defined in s2 of the 2006 Act?

  (1) A person is in breach of this section if he—

  (a) dishonestly makes a false representation, and

  (b) intends, by making the representation
• How does paragraph 2 define a false representation?(second element)

  (a) it is untrue or misleading, and

  (b) the person making it knows that it is, or might be, untrue or misleading
• What is the meaning of Representation under paragraph 3 of section 2?

  (3) “Representation” means any representation as to fact or law, including a representation as to the state of mind of—

  (a) the person making the representation, or

  (b) any other person.
• What is stated in Paragraph 4 of s2?

  (4) A representation may be express or implied.
• What does Paragraph 5 state in s2?

  (5) For the purposes of this section a representation may be regarded as made if it is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention).
• What is the AR for s2 (1)?

  AR: make a representation that is false
• What is the MR for s2 (1)?

  MR: knowledge that the representation was false, dishonesty & intention to make a gain/cause a loss
• What are the elements of a representation?

  Representation as to

  ⇒ Fact (changes based on the different circumstances of cases)

  ⇒ Law

  ⇒ State of mind of D
• Does the person who D sends the representation to have to read the misrepresentation?

  NO:

  States that even though it has to be directed at someone, the someone targeted does not have the actually read the misrepresentation for D to be convicted of fraud
• When is the representation made?

  Made when it is articulated
• What are the two ways that Representation can be communicated?

  1. Express
  2. Implied
• What is included as a type of express communication?

  ⇒ Writing

  ⇒ Post

  ⇒ Email

  ⇒ Messages
• What is the L.P of R v Barnard?

  L.P: D wearing certain clothes can be a form of implied communication if the clothes helped D acquire services
• What is the L.P of Lambie?

  L.P: D using someone's credit card can be a form of representation as D is presenting themselves as the owner of the credit card
• What is the L.P of Rai?

  Omissions/silence is a form of representation (question for the jury depending on the facts of the case)
• What is the L.P of Idrees v DPP? (where there was representation when Y took the driving test on behalf of X as X benefited from the misrepresentation)

  L.P: held that the use of agents can make a representation
• How do the courts define the meaning of 'false'?

  • Wholly untrue or partially untrue
  • Ordinary word
  • Very broadly defined
• Who normally defines the meaning of 'false'?

  Generally defined by the jury
• What is the L.P of R v Silverman? (where V was a loyal customer of a plumber service & D inflated the price of services because of their ongoing working relationship)

  L.P: a representation will be false if D provides an untrue statement to V & knows that V will complete the action
• What are the required MR for Fraud by False Representation?

  • Section 2 (2) (b): knowledge that the representation was false
  • Dishonesty with the use of the Ivey Test
  • Intention to make a gain or cause a loss (is no need for an actual gain/loss)
• For s2 (b), what are two ways that D must intend when making the false 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.
• What is required for the second MR element: Knowledge that the false representation is false?

  • Subjective test
  • Must prove D knew it was or might be untrue or misleading
  • Knowledge
  • True belief
• How does s5 (2) of the 2006 Act clarify the meaning of 'gain' & 'loss'?

  ⇒ 5(2)(a): extend only to gain or loss in money or other property

  ⇒ 5(2)(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)
• What is the L.P of R v Gilbert? (where D made a false representation about his bank account)

  L.P: The intention must be as a result of the false representation