Fraud

Question 1

“Gain” and “Loss”
s5 FA 2006

Answer 1

“GAIN” will include:
*Getting something
*Keeping something that you already have

“LOSS” will include:
*Parting with something
*Not getting something

GAIN / LOSS must relate to either:
*Money
*Other property including real / personal / intangible / things in action

GAIN / LOSS can be PERMANENT or TEMPORARY

Question 2

Dishonesty
(Case Law)

Answer 2

Ivey v Genting Casinos 2017 - Dishonesty Test

(1) The court must ascertain the defendant’s knowledge or belief as to the facts.

(2) The court must then determine whether the defendant’s conduct was dishonest by the (objective) standards of ordinary decent people.

There is no longer a requirement to prove that the defendant must appreciate that what they have done is, by those standards, dishonest.

The law should not excuse those who make a mistake about contemporary standards of honesty, a purpose of the criminal law is to set acceptable standards of behaviour.

(Sometimes referred to via the case of Barlow Clowes & Royal Brunei Airlines)

Question 3

Fraud by Failing to Disclose Information
s3 FA 2006

Answer 3

*Dishonestly
*Fails to disclose information to another person
*Which they are under a LEGAL DUTY to disclose
*Intending thereby**
*To make a gain / cause a loss / expose to a risk of loss

**the defendant KNEW or BELIEVED that they were under a legal duty to disclose the information, and deliberately failed to disclose it.

Question 4

Legal Duty to disclose
s3 FA 2006 / Case Law

Answer 4

“Legal Duty” is not defined within the Fraud Act. However, it has been held to include circumstances of:
*statute
*transaction in good faith
*express contractual terms
*implied contractual terms
*trade customs
*existence of a fiduciary relationship

Question 5

Possess / Control Articles
s6 FA 2006

Answer 5

In their possession / under their control
Any article
For use in the course of / in connection with
Any (FUTURE) fraud
By any person

Question 6

Make / Supply Articles
s7 FA 2006

Answer 6

Either Make / adapt or Supply / Offer to supply
Any article
Either
(1)
Knowing that it is designed / adapted
For use in the course of / in connection with a fraud
OR
(2)
Intending it to be used to commit a fraud or assist in the commission of a fraud

The “offer to supply” offence can be committed WITHOUT being in possession of the article in question (at the time that the offer is made)

Question 7

False Accounting
s17 Theft Act 1968

Answer 7

Dishonestly
With a view to
*Make a GAIN for any person
*Cause a LOSS to another
By either an ACT or OMISSION
Either:
(1)
Destroy / deface / conceal / falsify
Any account / record / document
required for any accounting purpose
OR
(2)
In furnishing information for any purpose
Produces or makes use of
Any account / record / document
Which to their knowledge is or may be in a material particular either
Misleading / false / deceptive

Question 8

Conspiracy to Defraud
Common Law

Answer 8

… an agreement by two or more [persons] by dishonesty to deprive a person of something which is his or to which he is or would or might be entitled [or] an agreement by two or more by dishonesty to injure some proprietary right [of the victim].

Question 9

Obtaining Services Dishonestly
s11 Fraud Act 2006

Answer 9

Where services are made available on the basis that payment
Has been / is being / will be made.

By dishonest act
Obtains services for any person
Without payment being made (in part or in full)
INTENDING that payment will not be made (in part or in full)