Criminal Law – Fraud

#Criminal #Law #Fraud

Fraud and other related offences such as bribery are covered in statute law but before getting into this it is useful to go over some of the key concepts.

Dishonesty is define in relation to the Ghosh [1982] test and contains both an objective and subjective element.

Gain and loss has a broad definition and can include keeping what you already have and not getting what you might other wise get. The actual property itself is also broadly defined to include money and range of property both tangible and intangible.

Intention can both be direct intention as well as foresight of a virtually certain consequence.

Section 2 of the Fraud Act 2006 covers fraud by false representation where the defendant makes an untrue or misleading representation. The mens rea is where the defendant acted dishonestly and knew the representation was (or was likely to be) false. There must also be an intention to make a gain or cause a loss.The representation itself can be express or implied. This is a conduct crime meaning that the victim need not act on the false representation.

Section 3 is fraud by the failure to disclose information but there has to have been a legal duty to disclose the information. The mens rea requirement is not clear whether there can be fraud where the defendant was unaware of the duty. The legal duty can originate from a statute, a contract or other fiduciary duty etc.

Section 4 is fraud by abuse of position and the ‘position’ is a reference to a fiduciary duty and the abuse must be dishonest and intended to make a gain or cause a loss.

Other offences under the Act include those relating to articles for fraud under sections 6 and 7. Section 11 relates to obtaining services dishonestly.

The Bribery Act 2010 establishes offences relating to paying and receiving bribes. Section 1 covers where the defendant promises/gives some financial or other advantage in order to persuade another person to act improperly or does so as a reward for them acting improperly. Section 2 relates to the receipt of a bribe.

Other related offences that also exist under the Theft Act 1968 include:
s. 17 – False accounting
s. 18 – Corporate liability for fraud offences
s. 19 – False statements by company directors
s. 20 – Suppression of documents
s. 21 – Blackmail

For blackmail the actus reus refers to a “demand with menaces” while the mens rea requires from the defendant “a view to gain for himself or another or with intent to cause loss to another”. A defence to blackmail can be where the demand is based on reasonable grounds and the approach taken is proportional.
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