FRAUDCriminal Law

Old law on fraud

Before the Fraud Act 2006, the offence of fraud was governed under the Theft Act 1968 and 1978› S15 Theft Act 1968: obtaining property by

deception› S15A Theft Act 1968: obtaining money

transfer by deception› S16 Theft Act 1968: obtaining pecuniary

(monetary) advantages by deception

Old law on fraud

Before the Fraud Act 2006, the offence of fraud was governed under the Theft Act 1968 and 1978› S1 Theft Act 1978: obtaining services by

deception› S2 Theft Act 1978: evading liability by

deception

Old law on fraud

Theft Act 1968 & 1978 gave rise to several problems

There was a requirement for an element of operative deception and this limited the application of fraud

With the introduction of machinery also came the question on if machines can be subject to deception

Old law on fraud

In the case of Royle 1971, LJ Edmund-Davis described the provisions of fraud to be a ‘nightmarish’

The Law Commission describe the old law as having the following problems› Too many offences› Too much overlap between offences› Too much technicality etc

Old law on fraud

Therefore they decided to repeal the deception based offences and enact the Fraud Act 2006

This was deliberately widely drafted to ensure it could avoid technicality

Fraud Act 2006

S1; offence of fraud committed by breaching S2, 3 or 4 (various types of fraud)

S2; fraud by false representation S3; fraud by failure to disclose info S4; fraud by abuse of position S1(3); sanction S11; obtaining services dishonestly

HOWEVER

One section from the Theft Act 1978 remains valid

S3 Theft Act 1978; making off without payment

Section 1(1)

This is the main provision that describes the offence of fraud

It states fraud can be committed in a number of listed ways

It must the section that a person is convicted under

Section 2, 3 and 4 must be supported by Section 1

Section 1(3)

A person convicted of fraud may be guilty under› (a) summary conviction: 12 months; fine;

both› (b) indictment: imprisonment not

exceeding 10 years; fine; both Only applicable to S1

Section 2; False Representation S2(1); when defendant dishonestly

makes false representation with intention to gain for himself of cause a loss or possibility of a loss to another

Section 2; False Representation S2(2)(a); false is when the statement is

untrue or misleading S2(2)(b); defendant must know that

statement is misleading or is reckless as to if it is untrue or misleading

Section 2; False Representation S2(3); representation can be a

representation of› Fact› Law› Another’s state of mind

S2(4); can be express or implied (can be committed via omission/silence)

S2(5); if submitted through a device designed to communicate information, it will be implied that it is representation

Section 2; False Representation S5(2); gain or loss is defined as

permanent or temporary attainment or dispossession of money or property

S5(3); gain includes keeping ‘item’ S5(4); loss includes not getting ‘item’ This intention is to be observed

through the virtual certainty test Dishonesty is to be determined by the

Ghosh test

DPP v Ray 1973 Ray and friends went to restaurant and

ordered meal Ray realised he did not have enough

money to pay and friend offered to lend After eating, they decided to run off Lord Morris said that he had indicated

his honest intention to pay but subsequently forms a dishonest intention. In his original intention is a representation that this intention will continue throughout.

DPP v Ray 1973 There was an implied representation

when they sat at the restaurant that they were going to pay

This was deception and a dishonest representation

MPC v Charles 1977 Defendant was granted an overdraft

limit of £100 The bank was willing to honour any

cheque within £90 Defendant issued cheques worth £750 In issuing these cheques, he had made

a false implied representation to another that he had the authority to issue the cheques

R v Lambie 1982 Defendant knew that her credit card

had exceeded its limit Continued use of the credit card was an

implied representation

R v Gilmartin1983 Defendant wrote 4 post-dated cheques

despite knowing bank would not honour them

Defendant made a dishonest implied representation that the cheques would be honoured by the bank

R v Adams 1993 Defendant rented out car despite having

been disqualified from driving In filling out a form, he indicated that he

had never been convicted for traffic offences nor been disqualified from driving

Although he had never been convicted, the answer to both questions was not no

Therefore the defendant had through his conduct impliedly made a false representation

R v Rai 2000 Defendant requested Council to fix

bathroom for his home with his elderly mother

His mother died and he did not inform the Council who went ahead with the repairs under the impression the mother was alive and living with him

His omission to make known the change of facts was a false representation

Section 3; Failure to disclose

S3; dishonestly fails to disclose information required under his/her legal duty and intends to by doing so gain for himself/another or cause loss or possibility of loss for another

Section 3; Failure to disclose Law Commission Report 276/2002

listed situations where one would have a legal duty to disclose› Statute› Bona fide transactions› Express/implied terms require so› Customs› Fiduciary relationship

It is often where one acts in another’s interest

Section 4; Abuse of Position S4; dishonestly abuses position in

which one is expected to safeguard and not act against another’s financial interest and intends to, by doing so, gain for himself/another or cause a loss or possible loss for another

Section 4; Abuse of Position Law Commission Report 276/2002 listed

situations where one would be in a position to safeguard another’s interest› Trustee-Beneficiary› Director-Company› Professional-Client› Agent-Principal› Employer-Employee› Partners› Family› Parties not at arms length

Section 4; Abuse of Position Abuse is not defined in the Fraud Act

2006 It is vague and subject to position of

defendant S4(2); can be committed through

omission

Section 11; Obtaining Services S11; an dishonest act and fraud by

false representation allows defendant to obtain services for himself/another

Section 11; Obtaining Services S11(2); services are obtained if

› (a) they are provided on the basis that money has, shall or will be paid

› (b) defendant obtain them without paying or paying in full

› (c) defendant knows or is reckless as to (a)› Intend to not make payment or make only

partial payment

Section 11; Obtaining Services S11(3); sanction

› (a) summary conviction: 12 months; fine; both

› (b) indictment: imprisonment not exceeding 5 years; fine; both

Section 3 TA 1978; Making off S3; dishonestly makes off without

paying as required/expected with intention to avoid payment despite knowing that payment is required/expected on the spot

Section 3 TA 1978; Making off Making off required defendant to leave

the place or a particular spot The intention to be found is an

intention to avoid payment permanently

Section 3 TA 1978; Making off Aziz: no need to identify a specific spot

in which payment has to be made Vincent: possible to avoid conviction if

prior arrangement to pay later has been made by defendant

Robbery

S8 Theft Act 1968; steals and immediately before or at the time of theft, uses force on any person or puts person in fear of being subjected to force

theft + extra AR (FORCE)

Robbery

Force is not defined in the act Seek definition in common law Any degree of pressure would suffice

R v Clouden 1987

Defendant pulled shopping bags away from woman

Amounted to force No requirement to touch victim Force can be indirectly applied Force was applied on the property

stolen

R v Dawson 1976

Defendant nudged victim causing victim to lose his balance and fall

Held that a mere nudge will be sufficient

Force does not need to be overpowering

R v Hale

Defendants broke into house to steal One went upstairs to look for items to

steal while the other tied up the owner Held that the appropriation was a

continuing act and at the time of appropriation, force had been used

The force was used to tie up the victim

Corcoran v Anderson 1980

Defendant snatched handbag and ran But dropped it while running and made

off without picking it up Convicted of robbery nonetheless At the moment he had dropped the

bag, the offence of theft had occurred and he did use force to snatch the bag

R v Lockley 1995

Defendants stole beer from a shop and used violence on the owner to escape

Held appropriation is a continuing act Force used to escape will still be

considered as force used to steal as the theft/appropriation is a continuing act

Will not be completed until the escape occurs

Burglary

S9(1)(a) Theft Act 1968; trespasser enters building or part of it and intends to steal anything, inflict GBH or criminal damage

S9(1)(b) Theft Act 1968; trespasser enters building or part of it and steals or try to steal something within it or inflicts GBH or attempts to inflict GBH

R v Brown 1985 Defendant broke windows of a shop

and leaned in to steal items He had actually been standing outside

with his feet still outside the shop Argued he had not entered the building

at all Held that the entry need not be

substantial His leaning into shop was sufficient to

be entry

Part of a building

B & S v Leathley 1979; container used as storage unit. Was connected to electricity and had been there for more than 2 years. Held to be part of a building

Norfolk Constabulary v Seekings 1986; lorries used as storage for 1 year but were still kept on wheels. Held to be not part of a building

R v Jones 1976

Defendants broke into parents home and stole appliances

Parents stated that they had the permission to be in that home

Court held that defendants had nullified permission by stealing and were considered trespassers

Aggravated Burglary

S10 Theft Act 1968; burglary + firearm or weapon or explosive