Fraud by false

representation
S.2 of the Fraud Act 2006

Fraud by false
representation - Definition
Fraud by false representation is defined under s.2(1) of the Fraud Act 2006 as:

dishonestly makes a false representation, and intends, by making the representation

a. to make a gain for himself or
b. to cause loss to another or to expose another to risk of loss.

Actus Reus:

- Make a representation
- Representation must be false

Mens Rea:

- Dishonestly
- Knows or believes representation to be untrue or misleading
- Intends to make a gain or cause a loss

AR - Makes A
Representation
The Fraud Act gives some help with what is meant by a representation.

S.2(3) states that: Representation means any representation as to fact or law, including
making a representation as to the
state of mind of -
(a) - the person making the representation, or
(b) - any other person.

Representations to machines - A representation may be regarded as made if it is

submitted in any form to any system or device designed to receive, convey or respond to
communications (with or without human intervention)

The Fraud Act 2006 S.2(4) also states a representation can be expressed or implied

AR- Expressed
Representation
Expressed Representation: expressed information themselves.

A representation may be expressed - An express representation may

be made through speech, writing, text, through a phone call or radio
or posted on a website | Case: Silverman (More likely to be fraud by
abuse though)

Charged due to expressed representation. | Case: Hamilton (D

expressed to V they hadnt been paid when they actually already
had).

Fraud By False Representation (Offences against the property) - 2 March 2017

AR - Implied Representation
There are many different implied representations:

All cases a pre Fraud Act 2006 so are only persuasive not binding.

Representation can be implied by clothing items. | Case: Barnard (Wearing oxford cap and scarf to get credit in
store, stated by the obiter dicta).

Ordering a meal and eating it is an implied representation that you are going to pay for it. | Case: DPP v Ray
(Orders meal and runs out so they dont have to pay).

Paying by cheque is implied representation that the bank will honour/respect the cheque. | Case: Gilmartin (knew
cheques were not going to work and by drawing the cheque he was implying representation).

AR - Representation must be
false
Fraud Act 2006 - 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 misleading.

Misleading is not defined in the Act but the government, stated in their paper Fraud Law,
stated that a representation is false if it was less than wholly (entirely) true and capable of
interpretation to the detriment (cause of harm) of the victim.

Make a gain or loss

The offence requires that D intends to make a gain for himself or a loss to another, or expose the risk of loss to
another. Both gain and loss mean gain or loss in money or other property.

Property states in S.5 of the Fraud Act 2006: any property whether real or personal including things in action dn
intangible property.

Gain means a gain by keeping what one has as well as a gain by getting what one does not have.
Loss includes a loss by not getting what one might get as well as a loss by parting with what one has.

Gain or Loss can be temporary or permanent.

Gain and Loss are illustrated in the Case: Kapitene (where D gained Vs money (wages) and V has a loss of
money by paying D his wages).

Mens Rea
1. Dishonestly: Ghosh Test

2. Knowing or believing the representation to be untrue or misleading: The D must know that the representation he
is making is, or might be, untrue or misleading. Subjective test

3. D must Intend to make a gain or cause a loss - Laverty (1970)

Fraud By False Representation (Offences against the property) - 2 March 2017