Topic: Deception or Fraud Offences:

The Old Law:

 S.15 TA 1968 – Obtaining property by deception

 S.15A TA 1968 – Obtaining money transfer by deception
 S.1 TA 1978 – Obtaining services by deception
 S.2 TA 1978 – Evasion of liability by deception
 S.3 TA 1978 – Making off without payment

The New Law:

 S.1 Fraud Act 2006 – Fraud

 S.11 Fraud Act 2006 – Obtaining Services Dishonestly
 S.3 TA 1978 – Making off without payment

S. 1 states that,

(1)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).

(3)A person who is guilty of fraud 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 10 years or to a
fine (or to both).

(4)Subsection (3)(a) applies in relation to Northern Ireland as if the reference to 12 months were a
reference to 6 months.

s.2 - Fraud by False Representation:

Section 2: (1) 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) A representation is false if-

(a) it is untrue or misleading, and

(b) the person making it knows that it is, or might be, untrue or is
misleading(something “less than wholly true and capable of an interpretation to the detriment of
the victim)

Actus Reus:

 makes a representation;
 representation is false.

FA 2006 s.2(3), (4) states that,

 "Representation" means:-any representation as to fact or law,

 Including a representation as to the state of mind of- (a) the person making the
representation, or (b) any other person.
 A representation may be express or implied.

This is a CONDUCT crime, not a RESULT crime.

Mens Rea:

 dishonesty,
 intention to make gain/loss,
 knowledge that representation is/might be untrue/misleading

Dishonestly- Section 2(1)

Exceptions:

 2(1)a – Belief in right to deprive

 2(1)b – Belief in consent of other
 2(1)c – Belief owner cannot be found

Meaning of dishonesty – the Ghosh test

Case: Feely [1973] – ‘current standards of ordinary decent people’

The appellant was the manager in a betting shop. He borrowed £30 from the till and maintained that
he intended to replace it within a few days. The trial judge held that his actions were clearly
dishonest and his intention to replace the money was irrelevant.

Held: His conviction was quashed. The trial judge should have put the issue of dishonesty to the jury.

Case: Ghosh [1982]

He appellant was a surgeon who claimed money in respect of operations which he had not carried
out. He argued his actions were not dishonest as the same sums were legitimately due to him for
consultancy fees. The trial judge directed the jury:
"Now, finally dishonesty. There are, sad to say, infinite categories of dishonesty. It is for you. Jurors
in the past and, whilst we have criminal law in the future, jurors in the future have to set the
standards of honesty. Now it is your turn today, having heard what you have, to consider
contemporary standards of honesty and dishonesty in the context of all that you have heard. I
cannot really expand on this too much, but probably it is something rather like getting something for
nothing, sharp practice, manipulating systems and many other matters which come to your mind. "

The jury convicted and he appealed.

Held: His conviction was upheld. The test for determining dishonesty:

Lord Lane CJ

 "In determining whether the prosecution has proved that the defendant was acting
dishonestly, a jury must first of all decide whether according to the ordinary standards of
reasonable and honest people what was done was dishonest. If it was not dishonest by
those standards, that is the end of the matter and the prosecution fails.
 If it was dishonest by those standards, then the jury must consider whether the defendant
himself must have realised that what he was doing was by those standards dishonest."

1) Is it dishonest by standards of ordinary people?

2) Did D realise it was regarded as such?

Gain and loss: Section 5

(2) "Gain" and "loss"- (a) extend only to gain or loss in money or other property; (b) include any such
gain or loss whether temporary or permanent; and "property" means any property whether real or
personal (including things in action and other intangible property).

(3) "Gain" includes a gain by keeping what one has, as well as a gain by getting what one does not
have.

(4) "Loss" includes a loss by not getting what one might get, as well as a loss by parting with what
one has.

Evolutions: TA 1968 s.15 (1): ‘A person who by any deception dishonestly obtains property belonging
to another, with the intention of permanently depriving the other of it’.

s.3 - Fraud by Failing to Disclose Information:

3(1): A person is in breach of this section if he-

(a) Dishonestly fails to disclose to another person information which he is under a legal duty to
disclose, and

(b) Intends, by failing to disclose the information-

(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.

Mens Rea: dishonesty, intention to make gain/loss

Actus Reus: failure to disclose information under a duty to disclose

s.4-Fraud by abuse of position:

4(1): A person is in breach of this section if he-

(a) Occupies a position in which he is expected to safeguard, or not to act against, the financial
interests of another person,

(b) Dishonestly abuses that position, and

(c) Intends, by means of the abuse of that position-

(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.

Mens Rea: dishonesty, intention to make gain/loss

Actus Reus: occupying fiduciary position, act or omission in abuse of position

No need to show abuse of position caused gain/loss

Obtaining services dishonestly s.11:

(1)A person is guilty of an offence under this section if he obtains services for himself or another—

 (a)by a dishonest act, and

 (b)in breach of subsection (2).

(2)A person obtains services in breach of this subsection if—

 (a)they are made available on the basis that payment has been, is being or will be made for
or in respect of them,
 (b)he obtains them without any payment having been made for or in respect of them or
without payment having been made in full, and
 (c)when he obtains them, he knows—
(i)that they are being made available on the basis described in paragraph (a), or
(ii)that they might be,
but intends that payment will not be made, or will not be made in full.

(3)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).

(4)Subsection (3)(a) applies in relation to Northern Ireland as if the reference to 12 months were a
reference to 6 months.

Section 3 of the Theft Act 1978

1)Subject to subsection (3) below, a person who, knowing that payment on the spot for any goods
supplied or service done is required or expected from him, dishonestly makes off without having
paid as required or expected and with intent to avoid payment of the amount due shall be guilty of
an offence.

(2)For purposes of this section “payment on the spot” includes payment at the time of collecting
goods on which work has been done or in respect of which service has been provided.

(3)Subsection (1) above shall not apply where the supply of the goods or the doing of the service is
contrary to law, or where the service done is such that payment is not legally enforceable.

Malaysian law: Cheating section 415

Whoever by deceiving any person, whether or not such deception was the sole or main
inducement,--

 fraudulently or dishonestly induces the person so deceived to deliver any property to any
person, or to consent that any person shall retain any property; or
 intentionally induces the person so deceived to do or omit to do anything which he would
not do or omit to do if he were not so deceived and which act or omission causes or is likely
to cause damage or harm to any person in body, mind, reputation, or property,
 is said to "cheat".