IMPLIED REPRESENTATIONS

Fraud

There are many ways in which it is possible to

make an implied representation through someone’s

conduct. This was shown by the old case of

Barnard (1837).

BARNARD (1837)

D went into a shop in Oxford wearing a cap and

gown of a fellow commoner of the university. He

also said he was a fellow commoner. As a result the

shopkeeper agreed to sell him goods on credit.

Held: he would have been guilty even if he had said

nothing. The wearing of the cap and gown was

itself a false pretence.

Guilty under s2 Fraud Act 2006.

This representation is express and implied.

There is no definition for “implied representation”,

the explanatory notes to the Act state that:

“An example of a representation by conduct is where

a person dishonestly misuses a credit card to pay for

items. By tendering the card, he is falsely

representing that he has the authority to use it.

LAMBIE (1981)

D had a credit card with a £200 limit. She exceeded

this limit and the bank which had issued this card

wrote asking her to return the card she agreed that

she would return the card on the 7th December

1977 but she did not do so. On the 15th December

1977 she purchased goods with the card.

Convicted of obtaining a pecuniary advantage by

deception. Contrary to s16(1) of the Theft Act 1968

the CoA allowed her appeal but the HOL reinstated

the conviction.

It is likely that the courts will still look back to

decisions under the old law on the point of whether

d’s acts are an implied representation.

Under the old law several other situations of implied

representation were identified.

Under the old law several other situations of implied

representation were identified. These include…

(1) Ordering and eating a meal in a restaurant. This

is a representation that the meal will be paid for.

(2) Paying by cheque. This a representation that the

bank will honour the cheque.

(3) Use of a cheque guarantee card. This represents

that the bank will meet any cheque up to the limit

on the card.

All of these situations were considered in cases

under the Fraud Act 2006.

INTENTION TO PAY FOR A MEAL

DPP v Ray (1973): d went to a restaurant with friends he did not have enough money to pay for a meal but one of his friends agreed to lend him enough to pay for the meal. After eating the meal they all decided not to pay for it, later when the waiter went into the kitchen they ran out the restaurant without paying.

The COA had quashed the d’s conviction for obtaining a pecuniary advantage under s16(2)(a) of the Theft Act 1968.

The HOL reinstated the conviction, the problem was whether the d could be guilty when his original representation that he would pay wash genuine. Did the change of mind produce a deception? The HOL held that it did.

PAYING BY CHEQUE

Gilmartin (1983): d, a stationer, paid for supplies

with post-dated cheques he knew would not be

met. This was held to be a deception. By drawing

the cheques he was representing that there

would be funds in the account to meet the

cheques on the dates they were due to be

presented.

USE OF A CHEQUE GUARANTEE CARD

Metropolitan Police Commander v Charles (1976): d had a bank account with an overdraft facility of £100. The bank had issued him with a cheque card which guaranteed that nay cheques he wrote up to £30 would be honoured by the bank. D wrote out 25 cheques for £30 in order to buy gaming chips and backed each cheque with the cheque card. He knew that the bank would have to pay the gambling club the money so there was no deception in respect of the fact that the cheques would be honoured. However, he knew that he did not have enough money in his account to meet the cheques and also that the amount would exceed his overdraft limit. He had also been told by the bank manager that he should not use the card to cash more than one cheque of £30 a day.

HOL held that there was a false representation that he had the bank’s authority to use the card in the way he did and upheld his conviction under s16 Theft Act 1968 of obtaining a pecuniary advantage by deception.

WHEN IS A REPRESENTATION FALSE?

For the purposes of the Fraud Act 2006 a

representation is false if

(a) Is untrue or misleading and

(b) The person making it knows that it is or might be

untrue or misleading.

It is a matter of fact whether something is true or

not. The difficult word in the phrase is “misleading”

which is not defined in the Act but the Government,

in their paper Fraud Law: Government Response to

Consultation (2004), stated that a representation

was misleading if it was: “less than wholly true and

capable of interpretation to the detriment of the v.”

GAIN OR LOSS

The offence requires that d intends to make a gain

for himself or another, or to cause loss to another,

or to exposure another to the risk of loss. Both

‘gain’ and ‘loss’ mean gain or loss in money or other

property.

Property is defined in s5 of the Fraud Act 2006 as

“any property whether real or personal including

things in action and other intangible property.”

The gain or loss can be temporary or permanent.

This is seen by the case Kapitene (2010).

KAPITENE (2010)

The gain or loss can be temporary or permanent.

D, who was an illegal immigrant, applied for a job

at ISS Cleaning Services Ltd. He signed a

declaration stating that he was legally entitled to

remain in the UK, and showed them a Congolese

passport containing his details, his photograph

and an immigration stamp indicating that he had

‘indefinite leave’ to remain in the UK. He worked

as a cleaner. D’s ‘gain’ was the wages he was

paid by ISS. V’s ‘loss’ was the wages paid out.