Fraud as defined in the Fraud Act 2006 — common mistakes

In a problem question, identify the exact representation made. Was it express (e.g., a statement in an email) or implied (e.g., presenting a stolen credit card)? Then, explain why it is 'false' according to s.2(2) and how the defendant knew it might be false.

When analysing a s.4 scenario, first establish the specific 'position' the defendant holds and explain why it carries an expectation to protect another's financial interests. Then, detail the precise act or omission that constitutes the 'abuse' of that position.

No. The fraud offences under the 2006 Act are 'conduct' crimes. The offence is complete as soon as the defendant performs the prohibited act (e.g., makes the false representation) with the required dishonest intent. The result is irrelevant, so it does not matter if no one was deceived or if no actual gain or loss occurred.

The test for dishonesty is the objective one established by the Supreme Court in Ivey v Genting Casinos [2017]. The two-stage test asks: 1) What was the actual state of the defendant's knowledge or belief as to the facts? 2) Given that knowledge or belief, was their conduct dishonest by the standards of ordinary, decent people?

Yes. Fraud can be committed by an omission in two of the three ways. Under s.3 (failing to disclose), the entire actus reus is an omission – the failure to provide information when under a legal duty to do so. Under s.4 (abuse of position), the 'abuse' can be an omission, for example, failing to correctly invest funds as you are required to do by your position of trust.