9084 · 2.2.8
Fraud as defined in the Fraud Act 2006 flashcards
Revision flashcards for Cambridge 9084 Fraud as defined in the Fraud Act 2006 (syllabus 2.2.8). Flip, recall, then mark a real past-paper question.
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s1 Fraud Act 2006?
Fraud by false representation (s2), failing to disclose (s3), or abuse of position (s4).
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s2 false representation?
Dishonestly makes false representation (express or implied), intending gain/loss, knowing it is/untruthful or reckless as to truth.
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s3 failing to disclose?
Dishonestly fails to disclose information when under legal duty to do so, intending gain/loss.
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s4 abuse of position?
D occupies position of trust and dishonestly abuses it, intending gain/loss.
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Representation can be implied?
Yes — s2(3): conduct can imply a representation (e.g. using expired card).
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Gain and loss (s5)?
Includes money/property kept or obtained, or risk of loss — not need be permanent.
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What is the two-part mens rea for all fraud offences under the Fraud Act 2006?
1. Dishonesty, according to the objective test in *Ivey v Genting Casinos*. 2. An intention to make a gain for oneself or another, or to cause a loss or risk of loss to another.
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What is the actus reus of fraud by false representation under s.2?
Making a representation which is false. The representation can be express or implied, and it does not matter whether anyone is actually deceived by it.
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Under s.3 (failing to disclose), where does the 'legal duty' to disclose information come from?
It is not defined in the Act but is established by other areas of law, such as statute, fiduciary relationships (e.g., trustee), contracts of utmost good faith (e.g., insurance), or trade custom.
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What does 'abuse of position' mean under s.4 of the Fraud Act 2006?
It occurs when a person in a position of trust (where they are expected to safeguard another's financial interests) does an act or makes an omission that is contrary to that expectation. The position can be formal or informal.
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According to s.5 of the Fraud Act 2006, what can be 'gained' or 'lost'?
Only money or other property, whether real or personal, including things in action and other intangible property. It includes a gain by keeping what one has, as well as a gain by getting what one does not have.
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What is the principle from *R v Barnard* (1837) regarding implied representations?
Wearing a specific uniform (in this case, an Oxford student's cap and gown) can be an implied representation that you hold the status associated with it, for the purpose of s.2 Fraud Act 2006.
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Give an example of a 'legal duty' for the purpose of s.3 fraud by failing to disclose.
A doctor has a duty to disclose adverse information about their professional history when applying for a new job, as established in *R v Razoq*.
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How does s.2(5) of the Fraud Act 2006 apply to machines?
A representation can be made to any system or device designed to receive, store or respond to communications. This covers fraud committed via ATMs, ticket machines, or online shopping websites.
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In *R v Valujevs*, what did the court say about the 'position' of trust for s.4 fraud?
The court held that the 'position' of trust under s.4 is a matter for the jury to decide based on the facts. It is not confined to specific legal categories like trustee or director and can arise from an informal arrangement.