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criminal law fraud notes
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What is Fraud?Section 1 of the Fraud Act 2006 sets out the basic definition of what constitutes fraud.
Section 2(1) of the Fraud Act 2006 states that a person is in breach of this section if he (a)
dishonestly makes a false representation and (b) intends, by making the representation to make a
gain for himself or another or to cause loss to another or to expose another to a risk of loss.
Actus Reus - the defendant must make a representation which is false.
Mens rea - defendant must be dishonest, defendant must know the representation is or might be
untrue or misleading and the defendant must have an intention to make a gain or cause a loss.
Actus Reus -
What is false representation?
Section 2(2) states that a representation is false if it is untrue or misleading and the person making it
knows that it is or might be untrue or misleading.
Section 2(3) states that representation means any representation as to fact or law, including a
representation as to the state of mind of the person making the representation or any other person.
Section 2(4) states that a representation may be express or implied
It does not matter whether anyone believes the representation
An untrue statement made in the honest belief that it is in fact true would not suffice.
It is a matter of fact whether something is true or not
False representation can be as to fact, as to law and as to state of mind.
An express representation has no limits on the way it can be made. For example; words, conduct,
fact, law, test, fax, email and phishing.
There are many ways in which it is possible to make an implied representation through one's
conduct. Examples include; ordering and eating a meal in a restaurant, paying by cheque, use of a
cheque guarantee card etc...
Mens rea :
- Defendant must be dishonest - there is no definition laid out for this. Dishonesty is determined by
using the Ivey test.
- Defendant must know the representation is or might be untrue or misleading - this is a subjective
test as shown in R v Augunas 2013. The focus is on what the defendant knew. Knowledge means
'true belief'. Under the Fraud Act the knowledge required from the defendant is that he must know
that he is misleading.
- Defendant must have an intention to make a gain or cause a loss by the false representation - the
defendant must make a gain for himself or cause loss to another in money or property. Property for
the purposes of gain or loss is real or personal property including things in action and other
intangible property. - Case of Kapitene 2010
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