Fraud by false representation

Question 1

What are the three ways in which fraud can be committed?

Answer 1

• Section 2: fraud by false representation
• Section 3: fraud by failure to disclosure
• Section 4: fraud by abuse of position

= if D is tried on indictment, max penalty is 10 years in prison or an unlimited fine

governed by Fraud Act

Question 2

When will one be in breach of fraud by false representation?

Answer 2

• if D dishonestly makes a false representation
• and intends by making representation
  
  • to make a gain for himself or another
  • or to cause a loss to another or to expose another to risk of loss

Only requires that there is a false representation not that representation deceives anyone

Question 3

AR - false representation?

Answer 3

• express or implied representation
• representation as to fact, law or state of mind
• representation untrue or misleading

Question 4

Express or implied representation?

Answer 4

Implied representation:
* what D says or
* by conduct (e.g., pretending to be someone else)

pure silence without accompanying action cannot amount to representation

Question 5

Representation as to fact, law and state of mind?

Answer 5

• false representation as to one’s belief may satisfy requirement of section 2 if shown that D does not in fact hold opinion or belief
• state of mind can relate to intention so if D states an intention to do something but in fact as no intention = can amount to false representation

Question 6

Representation must be untrue or misleading?

Answer 6

• issue of fact and for jury to determine
• Overcharging:
  
  • where V is vulnerable and in such circumstances of mutual trust, if one party takes dishonest advantage of the other by representing a fair charge that which he knows but not the others is dishonestly excessive
  • situations where a long time and trusted friend is involved, courts found fraud of false representation
• Deceiving a machine:
  
  • using stolen credit cards and PIN codes to get money from ATMs will be charged with theft of card and using card to falsey represent to machine that they are entitled to withdraw funds

Question 7

MR: fraud representation?

Answer 7

• dishonesty
• MR for false statement
• intention to make a gain or cause a loss

Question 8

What is the test for dishonesty?

Answer 8

• what was D’s knowledge and belief as to the facts
• given that knowledge and belief, was D dishonest by standard of ordinary decent people

negative definition of dishonesty only applies to theft

Question 9

MR for false statement?

Answer 9

D must know or be aware that statement is untrue or misleading
* will be satisfied if D is subjectively aware of possibility that what they are saying or implying is false
* if person knows statement they are making is false then should make it clear to person they are making it to - if done, they do not make a false statement

Question 10

Intends to make a gain or cause or loss?

Answer 10

• gain and loss extends only to money or other property
• gain or loss can be temporary or permanent and property can be real or personal
• false representation made to get a job could be regarded as intention to make a gain in terms of money

this requirement marks difference with old deception law as an actual gaoin or loss was required