Fraud by False Representation S 2 Fraud Act

Fraud by False Representation

S. 2 Fraud Act 2006 Actus Reus: 1. 2. D makes a representation Which is false Mens Rea: 3. Knowing that the representation was or might be untrue or misleading 4. Dishonestly 5. With intent to make a gain for himself/another, to cause loss to another or to expose another to a risk of loss Fraud is a conduct crime – so no end result needs to be proved – no one has to believe the false representation

Actus Reus – Makes a Representation – What the representation is about • A representation is a statement made by one party in order to induce another party to do something • S. 2(3) Fraud Act 2006 – a representation can be: • As to fact (e. g. using a false identity, making an untrue statement about something you are selling) • As to law (e. g. a false statement about the effect of a legal document) • As to state of mind – (e. g. your intention - saying you will pay a bill when you don’t intend to, saying you will pay someone for work done when you don’t intend to)

Actus Reus – Makes a Representation – how the representation is made - Express or Implied • S. 2(4) Fraud Act 2006 – representation can be express or implied • Express – e. g. – written, text message, spoken, posted on website, e-mail • Implied – by conduct – e. g. person uses a credit card or makes a payment from his bank account (cheque or debit card) – by doing this person is making an implied representation that he has the authority to use the card/cheque – would not have the authority if it was stolen or over the credit limit • MPC v Charles – giving a cheque makes the implied representation that D has the authority to use the cheque. In this case, cheque was to a casino and backed by a cheque guarantee card – account was overdrawn beyond its agreed limit • Lambie – use of a credit card is an implied representation that the user has the authority from the credit company to use the card. In this case the fact that the transaction would take the card over its limit meant there was no such authority from the credit card company. • Representation can be made through a gesture – e. g. nod of head, presence in a restricted area which implies the right to be there, wearing a uniform or an identification badge that implies a certain statue

Actus Reus – Makes a Representation – who the representation is made to • S. 2(5) Fraud Act 2006 – representation can be made to a person or to a machine • Machine – e. g. using an ATM machine, text, e-mail, phishing on the internet • Representation must be made but does not need to be communicated - does not need to be received – e. g. if made by text, e -mail etc. , does not need to be read or received. • V does not need to rely on or believe the representation

Actus Reus – Which is false • S. 2 (2) Fraud Act 2006 – a representation is false if: a) It is untrue or misleading; AND b) The person making it knows that it is, or might be, untrue or misleading • DPP v Ray – representation can be a continuing representation – if a representation was true when made but later becomes false, offence is committed by not telling of the change – in this case the representation was to pay for meals ordered in a restaurant • Rai – same principle as DPP v Ray – representation was true when it was made but became false when his mother died and he failed to notify the council (got a grant from the council to build a downstairs bathroom for his elderly mother)

Mens Rea – Knowing that the Representation was or might be untrue or misleading • Links to the false aspect of Actus Reus • S. 2 (2) Fraud Act 2006 – a representation is false if: a) It is untrue or misleading; AND b) The person making it knows that it is, or might be, untrue or misleading • The representation must actually be untrue or misleading (AR) – D can’t be convicted if it is actually true • Look back to continuing representations – if he did not know the representation was/might be untrue or misleading at the time of making it you need to argue there was a continuing representation that he then knew to be untrue or misleading - e. g. you promise to pay for a repair then change your mind. • “might be” doesn’t mean recklessly – need actual knowledge that the representation might be untrue – not just awareness of a risk that it might be untrue

Mens Rea - Dishonestly • Ghosh test from theft applies: • Would D’s behaviour be regarded as dishonest by the standards of reasonable and honest people? • If so, was D aware that his conduct would be regarded as dishonest by reasonable and honest people?

Mens Rea – with Intent to make a gain for himself or another, or cause a loss to another or to expose another to a risk of loss • Mens Rea issue only – no need for D or another to make a gain or for another to suffer a loss or be exposed to a loss • S. 5(2) Fraud Act 2006 – gain and loss only includes money or other property • Gain includes: • “getting what one does not have” (e. g. money that one would get from a job) • “keeping what one has” (e. g. paying less for something) • Loss includes not getting what one may get (e. g. not getting paid in full for a service) • Often it will be both to make a gain and thereby cause a loss to another – must identify which one(s) it is • Gain or loss can be temporary or permanent • Similar to blackmail

Fraud by False Representation – Questions to Consider 1. Does D make a representation? • What is the representation about? (fact, law, state of mind) • How is the representation made? (express or implied) • Who is the representation made to? (person or machine 2. Is the representation false? • Is it a continuing representation? 3. Does D Know that the representation was or might be untrue or misleading? 4. Does D make the representation dishonestly? 5. Does D do this with intent to make a gain for himself/another, to cause loss to another or to expose another to a risk of loss?