What are the three different ways in which fraud can be committed?
False representation - S2
Failure to disclose - S3
Abuse of position - S4
What is the maximum penalty for fraud?
10 years in prison
Unlimited fine
What is the AR of fraud by false representation?
False representation
What are the three in which the actus reus “false representation” can be made?
Express or implied representation - implied = what D says or via conduct
Representation as to fact, law or state of mind
Representation is untrue or misleading
Can pure silence be a representation?
No - it would need to be an accompanied by an action
When will the court impose liability for overcharging?
Circumstances of mutual trust
Long time and trusted friend
Deceiving a machine - fraud by false representation for those using stolen credit cards / PIN codes to get cash out
What is the MR for fraud by false representation?
Dishonesty - Ivey v Genting
MR for the false statement -f D is subjectively aware of possibility that what they are saying is false
Intention to make a gain or cause a loss - even if no such gain / loss arises
How is ‘intention to make a gain or cause a loss’ interpreted?
Holds even if no such gain / loss arises
Intends to make a gain for themselves
Make a gain for someone else
Cause a loss to another
Expose someone to a risk of loss
False rep with a view to getting a job
What is the AR of fraud by failure to disclose?
Existence of a legal duty
Failure to disclose
In fraud by failure to disclose, in what instances can there be a legal duty? Examples - not exhaustive
Statute
Transactions uberrimae fidei - utmost good faith
Contained in express / implied terms of contract
Arising from custom in a particular trade or market
Fiduciary relationship
What is the MR of fraud by failure to disclose?
Dishonesty - Ivey v Genting
Intention to make a gain or cause a loss
What is the test for dishonesty from Ivey v Genting?
What was D’s knowledge and belief as to the facts?
Given those knowledge and those beliefs, was D dishonest by the standards of ordinary decent people?
What is the AR of fraud by abuse of position?
Occupying a position - one requiring the defendant to look after the victim’s financial wellbeing - Dealt with on a case by case basis
Abuse of position - puts to improper use
Can fraud by abuse of position be committed by omission?
Yes
What is the MR of fraud by abuse of position?
Dishonesty
Intention to make a gain or cause a loss (Ivey v Genting)
What kind of intention would be found if an employee failed to collect sums owed to their employer?
Oblique intention - would need to pass the test from R v Woollin
When is a false representation made by email?
When it is sent - not when it is recieved by the intended recipients
Failure to disclose: can a moral duty fall under a legal duty?
No - this was specifically rejected
Fraud by abuse of position: how is this assessed, and who decides at trial?
Objectively assessed by the judge
How can a company be charged with fraud?
Company officers can be liable for offences committed by the company
if an individual consents or connives to commit offence also - they can be charged also
What type of fraud are you committing if you make an unauthorised bank transaction from someone else’s account?
Fraud by false representation
Is fraud subjective or objective in terms of false representation?
Subjective - depends what someone actually knew and whether they represented it falsely, not what they ought to have known
