Saturday, 7 April 2012

F is for Fraud.

This is largely based on internet stuff and notes I've made previously, need to look it up in more detail so it might not be 100%, but this is my basic understanding of it. Again, I have a criminal law exam in May so this will largely be used in relation to revision :)

Fraud comes under Criminal Law, and up until recently (2006) we had a complex system designed to deal with cases of Fraud. Cases to do with Fraud before 2006 were originally dealt with under the Theft Act 1968 and 1978, and these old deception offences were called:
  • Obtaining property by Deception
  • Obtaining a Pecuniary Advantage by Deception
  • Obtaining Services by Deception
Several problems occurred with these two acts. Firstly, the above three offences were criticised for being complex and difficult to prove in court. Secondly, most cases which fell under these acts, people who should have been prosecuted for deception offences ended up being prosecuted for theft instead, which of course was the wrong offence. There was also considered to be a loophole in the law in that it was not modernised - you couldn't commit these offences on a machine, they had to be in person and you had to get a result from it. 

The 1978 act was supposed to cure the problem, however it didn't, and as a result of the above, the Fraud Act 2006 was introduced. This created a single general fraud offence carrying a maximum sentence of ten years.

Fraud can be committed in three ways under the Fraud Act:
  • False Representation is dealt with under Section 2 of the act. A person is in breach of the section if he dishonestly makes a false representation, and 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.
A representation is false if it is untrue or misleading, and the person making it knows it is, or might be untrue or misleading. "Representation" means any statement of fact or law and it can be express or implied, and can be regarded as such if it is submitted into any system or device.
  • Failure to disclose information is dealt with under Section 3 of the act. This is covering situations where a person is under a legal duty to disclose information - e.g. insurance. To be in breach of this section, a person must dishonestly abuse their position, intend to make a gain for themselves or another, or cause another loss or expose them to the risk of loss. Job applications would be included here.
  • Abuse of position of trust. This is covered by section 4 of the act. This covers a wide range of relationships - director/company, solicitor/client, agent/principal, employee/employer, and between partners. It doesn't define what is meant by abuse on the basis that they want it to cover a wide range of conduct or omissions. The same requirements in the above 2 offences apply to this one; a person must dishonestly abuse their position, intend to make a gain for themselves or another, or cause another loss/expose them to the risk of loss. 
Dishonesty is a requirement for a breach of the act to occur - there has been case law determining the test for dishonesty.
  • R. v Ghosh - this, briefly, involved a surgeon claiming fee's from the NHS which he wasn't entitled to. The dishonesty test was laid out as follows:
    • was the act objectively dishonest by the standards of ordinary people
    • Did the defendant realise the act was so dishonest?
Thats about it with regards to proving/ general info on any fraud based offences. There are a few more offences under the act, but I'd need to go do far more research on them to write anything on them. As usual, thanks for reading (if you got this far) - the topics such as this one and my previous post (Equality) are potential topics for exams, so I'm making myself look through the statutes etc for revision purposes, so apologies for them being so boring! I'll try and make the rest readable :) 


  1. I know you're posting from European law, but I'm curious if this includes Internet fraud? Technology always seems to be so far ahead of the law.

  2. This particular topic (fraud) is Criminal, and the statute I've used is a UK statute. I think in some respects technology is still ahead of the law, I think they have tried to adapt it, but I'm not 100% sure if its all the way yet. I'll look it up and get back to you.