Burglary, Theft, Fraud & Criminal Damage
Fraud Offences
The Fraud Act 2006, section 1 creates the general offence of fraud and sections 2 to 4 detail three different ways of committing fraud, namely by false representation, failing to disclose information, or by abuse of position.
Fraud Offences
(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). Fraud Act 2006, s 1
In each case:
- ▸ the suspects conduct must be dishonest;
- ▸ his/her intention must be to make a gain; or cause a loss or the risk of a loss to another.
- ▸ No gain or loss needs actually to have been made.
- ▸ The maximum sentence is 10 years’ imprisonment in the Crown Court.
Fraud by false representation
Common examples of Fraud by False Representation
- ▸ Using a bank card without the owners’ permission to pay for goods or services
- ▸ Using a cheque without the owners’ permission to pay for goods or services
- ▸ Falsifying details on a mortgage application
Points to Prove
- ✓ dishonestly made a false representation
- ✓ intending to make a gain for yourself/another or
- ✓ intending to cause loss to another/expose another to a risk of loss
Note – The offence is entirely focused on the conduct of the suspect.
Meaning of Fraud by False Representation
(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 misleading.
(3) ‘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.
(4) A representation may be express or implied.
(5) For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention). Fraud Act 2006, s 2
Punishment
Punishment Fraud by False Representation
Maximum if heard in the Magistrates Court: 6/12 months’ imprisonment and/or a fine
Maximum if heard in the Crown Court: 10 years’ imprisonment
Fraud by failing to disclose information
Common example of Failing to disclose information
Intentionally failing to disclose information relating to their physical condition when making an application for life insurance.
Points to Prove
- ✓ dishonestly failed to disclose to another
- ✓ information which you were under a legal duty to disclose
- ✓ intending, by that failure
- ✓ to make a gain for yourself/another
OR
- ✓ to cause loss to another/expose another to a risk of loss
Note – this offence is entirely suspect focused. It is complete as soon as the suspect fails to disclose information provided s/he was under a legal duty to do so, and that it was done with the necessary dishonest intent. It differs from the deception offences in that it is immaterial whether or not any one is deceived or any property actually gained or lost.
Meaning of fraud by failing to disclose information
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.
Fraud Act 2006, s 3(1)
Punishment
Punishment Fraud by failing to disclose
Maximum if heard in the Magistrates Court: 6/12 months’ imprisonment and/or a fine
Maximum if heard in the Crown Court: 10 years’ imprisonment
Fraud by abuse of position
Common examples of Fraud by abuse of position
- ▸ Where a carer for a disabled or elderly person has access to a person’s bank account and abuses their position by transferring funds for their own gain.
- ▸ A software company employee uses their position to clone software products with the intention of selling the products to others.
Points to Prove
- ✓ occupying a position in which you were expected
- ✓ to safeguard, or not to act against, the financial interests of another
- ✓ dishonestly abused that position
- ✓ intending to make a gain for yourself/another
OR
- ✓ intending to cause loss to another/expose another to a risk of loss
Note – this offence is entirely suspect focused. It is complete once the suspect carries out the act that is the abuse of his position. It is immaterial whether or not he is successful in his enterprise and whether or not any gain or loss is actually made.
Meaning of Fraud by abuse of position
(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.
(2) A person may be regarded as having abused his position even though his conduct consisted of an omission rather than an act.
Fraud Act 2006, s 4
Punishment
Maximum if heard in the Magistrates Court: 6/12 months’ imprisonment and/or a fine
Maximum if heard in the Crown Court: 10 years’ imprisonment
Possess or control article for use in fraud
Section 6 deals with the offence of a person having in their possession or under their control an article for use in fraud.
Common example
The kits that are attached to ATM machines to capture card details;
Offences
A person is guilty of an offence if he has in his possession or under his control any article for use in the course of or in connection with any fraud. Fraud Act 2006, s 6(1)
Points to Prove
- ✓ had in your possession/under your control
- ✓ an article
- ✓ for use in the course of/in connection with a fraud
Punishment
Maximum punishment if dealt with at the Magistrates Court: 6/12 months’ imprisonment and/or a fine
Maximum punishment if dealt with at the Crown Court: 5 years’ imprisonment and/or a fine
Making or supplying article for use in fraud
Section 7 deals with the offences of making or supplying an article for use in fraud.
Common examples
- ▸ the kits that are attached to ATM machines to capture card details;
- ▸ forged credit cards or the equipment for making them;
- ▸ lists of credit card numbers;
- ▸ counterfeit goods presented as genuine;
Offences
A person is guilty of an offence if he makes, adapts, supplies or offers to supply any article—
(a) knowing that it is designed or adapted for use in the course of or in connection with fraud, or
(b) intending it to be used to commit, or assist in the commission of, fraud. Fraud Act 2006, s 7(1)
Points to Prove
- ✓ made / adapted / supplied / offered to supply
- ✓ an article
- ✓ knowing that it was designed/adapted for use in the course of/in connection with fraud
OR
- ✓ intending it to be used to commit/assist in the commission of fraud
Punishment
If dealt with at the Magistrates Court maximum 12 months’ imprisonment and/or a fine
If dealt with at the Crown Court maximum 10 years’ imprisonment and/or a fine
Obtaining Services Dishonestly
Section 11 of the Fraud Act 2006 makes it an offence for any person, by any dishonest act, to obtain services for which payment is required, with intent to avoid payment.
Common example of obtaining services dishonestly
A person attaches a decoder to a television set in order to view/have access to cable/satellite channels for which they have no intention of paying.
Offences
(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. Fraud Act 2006, s 11
Points to Prove
- ✓ obtained services for yourself/another by a dishonest act
- ✓ services were available on the basis that payment made for/in respect of them
- ✓ you obtained them without any payment/in full
- ✓ when you obtained them, you knew that they were being/might be made available on the basis described above
- ✓ but you intended that payment would not be made/made in full
Punishment
Maximum if dealt with at the Magistrates Court 6/12 months’ imprisonment and/or a fine
Maximum if dealt with at the Crown Court 5 years’ imprisonment and/or a fine
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