Fraud by Abuse of Position

• What section covers Fraud by Abuse of Position?

  section 4
• How does s4 define Fraud by Abuse of Position?

  (1) A person is in breach of this section 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, and
  • (c) intends, by means of the abuse of that position—
• What must D intend for s4 (c) of the 2006 Act?

  (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 does paragraph 2 of s4 state for Fraud?

  (2) A person may be regarded as having abused his position even though his conduct consisted of an omission rather than an act
• What is the AR for Fraud by Abuse of Position?

  AR: occupation of a position which he is expected to safeguard and abuse of that position
• What is the MR for Fraud by Abuse of Position?

  MR: dishonesty (Ivey) and intention to make a gain or cause a loss
• How is Position defined for the first AR element?

  Position: not defined but generally privileged one
• What is the L.P of R v Rahman?

  L.P: Judge will determine whether the person occupies a position of trust and then leave the matter to the jury
• What is the L.P of R v Wood?

  L.P: Held that even though ‘position’ has not be defined, there is still an expectation to safeguard
• How is 'Abuses that position' defined for the second AR element?

  • Not defined; broad term BUT
  • Can be done by omission or act
• What is the L.P of Pennock & Pennock? (where an elderly person stayed with V & made a joint bank account & purchased a house without informing V & transferred rights to another relative)

  L.P: Held that an abuse of position can occur in family relationships
• What is required for the second MR element: Intention to gain or cause a loss?

  Must intend the gain or loss through the abuse of power