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Fraud and making off without payment (Making off without payment (Actus…

- - - - Actus Reus - making a false representation - s2(1)(a)
        
        S2(3) - "representation" as to...
        
        Fact
        
        Law
        
        State of mind of the defendant or any other person
        
        R v King - second-hand car deal said mileage on car "may not be correct" - knew it was wrong and had changed it - impliedly represented that wasn't certain it was wrong - misrepresentation of present fact about dealer's mental state
        
        Edgington v Fitzmaurice - "it is very difficult to prove what the state of a man's mind at a particular time is, but if it can be ascertained it is as much a fact as anything else. A misrepresentation as to the state of a man's mind is therefore, a misstatement of fact"
        
        Smith v Land and House Property Corporation - if facts aren't equally well known to both sides, then statement of opinion often counts as statement of material fact because implies that he knows the facts that justify his opinion
        
        DPP v Ray - if defendant states they have intention to do something when they don't
        
        S2(4) - representation can be false or implied
        
        R v Williams - implied from conduct
        
        R v Bernard - implied from conduct
        
        DPP v Ray - implied from conduct - changed mind about paying at restaurant - by not bringing change to notice of restaurant deception was the same as if had never intended to pay
        
        Can representation be implied by silence alone?
        
        R v Twaite (2010)
        
        R v King - implied from what defendant does in fact say
        
        S2(2) - "false representation" - one that is untrue or misleading
        
        S2(5) - representation can be "submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention)"
        
        Overcharging - E v Silverman - builder charged elderly sisters excessive amounts for work done to their house - argued he made no specific comment about fairness of charge - court held in circumstances of mutual trust where one party depends on the other for fair conduct, may be fraud where one party takes dishonest advantage of another by representing as a fair charge what which he but not the other knows is dishonestly excessive
        
        Implied false representation into the dealings that the charge made was a fair one - question also of whether victim has to be in some way vulnerable
        
        Relationship of "trust and confidence" - R v Jones - milkman overcharged for crates of milk - purchaser regarded him as a friend - stupidity or carelessness born of trust of which appellant was aware and was able to take advantage of - in some cases the circumstances of trust may lead to charge of fraud by abuse of position instead
      - Mens Rea
        
        S2(2)(b) - knowing that the representation is false or might be
        
        Subjectively aware of possibility that what he is saying or implying is false - R v Staines - recklessness as to truth requires more than mere negligence or carelessness - must be indifference to whether truth - any belief, however unreasonable, will prevent it from being deception - if clear caveat, does not give false statement
        
        Section 2(1)(a) - dishonesty
        
        Ivey Genting Casinos (UK) Ltd
        
        What was D's actual state of knowledge/belief as to facts surrounding actions - once established, question of whether dishonest by standards of ordinary decent people
        
        Theft Act 1968 S2(1) does not apply
        
        S2(1)(b)(i)&(ii) - intention by false representation to make gain for self or another/to cause loss to another/expose another to a risk of loss
        
        Defined in s5
        
        S5(2)(a) - gain/loss in money or other property
        
        S5(2)(b) - can be temporary or permanent
        
        S5(3) - gain includes keeping what one already has
        
        S5(4) - loss includes not getting what one would otherwise get
        
        See Blackmail - Theft Act 1968 ss21&34
        
        Note that intent must be to make gain/cause loss by the representation
        
        R v Gilbert
        
        R v Dziruni
- - - - Law Commission's Report on Fraud
        
        Statutory duty
        
        Transaction of utmost good faith
        
        Duty arising from custom in a trade or market
        
        Fiduciary duty
- - - - What kind of position?
        
        Law Commission Report
        
        Trustee and beneficiary
        
        Director and company
        
        Professional and client
        
        Family?
        
        Volunteer?
        
        See also Silverman/Jones?
    - - What amounts to "abuse" of a position"?
        
        R v Pennock - using incorrectly or putting to improper use the position in a manner contrary to the expectation arising from that position - decided on case-by-case basis
        
        S4(2) - abuse of position by positive act or omission