6.2 Fraud Lecture
1.0 Introduction and Background
The Fraud Act 2006 provides one general offence of fraud which can be committed in three different ways:
(i) By false representation
(ii) By failing to disclose information
(iii) By abuse of position.
The Act also created the key new offence of obtaining services dishonestly.
Section 1 of the Fraud Act 2006 provides:
A person is guilty of fraud if he is in breach of any of the sections listed in subsection (2) (which provide for different ways of committing the offence).
(2) The sections are—
(a) section 2 (fraud by false representation),
(b) section 3 (fraud by failing to disclose information), and
(c) section 4 (fraud by abuse of position).
2.1 Fraud by False Representation
Section 2 of the Fraud Act 2006 provides:
A person is in breach of this section if he:
(a) dishonestly makes a false representation, and
(b) intends, by making the representation:
(i) to make a gain for himself or another, or
(ii) to cause loss to another or to expose another to a risk of loss.
2.1.1 Actus Reus
- Making a false representation
2.1.2 Mens Rea
- Knowing the representation is untrue or misleading, and;
- Intending to make a gain, cause a loss, or cause a risk of loss.
2.2 Fraud by Failing to Disclose Information
Section 3 of the Fraud Act 2006 provides for the offence of fraud by failing to disclose information in situations where there exists a legal duty to.
2.2.1 Actus Reus
- Legal duty to disclose information is in existence; and
- Failure to disclose that information.
2.2.2 Mens Rea
- Dishonestly; and
- Intending to make a gain, cause a loss or cause a risk of loss
2.3 Fraud by Abuse of Position
Provided under section 4 of the Fraud Act 2006.
2.3.1 Actus Reus
- Occupation of a position where an expectation to safeguard or not to act against the financial interests of another exists, and;
- Abuse of that position.
2.3.2 Mens Rea
- Dishonestly, and;
- Intention to make a gain, cause loss or a risk of loss.
These two elements of the mens rea carry the same meaning as for the other fraud offences and should be assessed in the same way.
2.4 Charging and Sentencing
Provided under section 1 (3) of the Fraud Act 2006.
3.0 Obtaining Services Dishonestly
Section 11 of the Fraud Act 2006 provides for the offence of obtaining services dishonestly.
3.1 Actus Reus
- Obtaining services
- Payment required but not made
- Dishonesty caused the services to be obtained
3.2 Mens Rea
- Knowing that payment was required
- Intending to avoid payment in whole or in part
3.3 Charging and Sentencing
Section 11(3) provides that:
A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or to both);
(b)on conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine (or to both)
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