Fraud & related offences

CRL.07 — Fraud & Related Offences

The Fraud Act 2006 replaced the old deception offences. Fraud (s.1) is one offence committed in three ways. All require dishonesty and intent to make a gain or cause a loss (money/property only, s.5). Fraud is conduct-based: no gain, loss or victim reliance is needed — it is complete on the act with the requisite intent.

The three ways:

• s.2 — False representation: dishonestly make a representation known to be false or misleading, intending gain/loss. Express or implied; may be to a machine (s.2(5)). Phishing, chip-and-pin misuse, false insurance claims.
• s.3 — Failing to disclose: dishonestly fail to disclose information you are under a legal duty to disclose (contract, statute, fiduciary, custom).
• s.4 — Abuse of position: dishonestly abuse a position in which you are expected to safeguard another's financial interests (employees, trustees, agents). Can be by omission.

Dishonesty test: Ivey v Genting [2017] / confirmed Barton & Booth [2020] — (1) ascertain the defendant's actual state of knowledge/belief, then (2) apply the objective standard of ordinary decent people. The old subjective Ghosh second limb is gone.

Related offences:

• s.6 — Possession of articles for use in fraud (e.g. card-skimmers, phishing kits).
• s.7 — Making/supplying such articles.
• s.11 — Obtaining services dishonestly: a result crime — services must actually be obtained, without payment, intending not to pay.
• Theft Act 1978 s.3 — Making off without payment: knowing payment on the spot is required/expected, dishonestly making off intending to avoid payment.

Common traps:

• Fraud needs no actual gain/loss — distinguish s.11 (result) and making off (result), which do require obtaining/leaving.
• "Gain/loss" is limited to money or property (s.5) — not reputation or other benefits.
• A machine can be deceived under s.2 (unlike the old law).
• s.3 needs a legal duty, not a mere moral one.
• Apply Ivey, never Ghosh.
• Fraud and conspiracy to defraud (common law) still coexist; conspiracy can catch agreements where no full Act offence is committed.