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Fraud - Coggle Diagram

- - - - (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
  - - - Law Commission’s Report:
        Examples: trustee and beneficiary, directir and company, professional person and client, agent and principal, employee and employer, partners, within family, voluntary work. In nearly all cases it will be recognised in civil law as importing fiduciary duties
      - R v Pennock and Pennock- determined on case by case basis
      - R v Marshall- manager of adults with severe learning difficulties who handles their bank accounts was guilty when taking out money from their account for herself
      - R v Valujevs and another- the general commercial area with competing markets does not give rise to the position of trust but in this case, it did because the employer collected their wages, and deducted rent etc so it was expected they would not act against their financial interests- an objective test
    - - R v Pennock & Pennock- ‘uses incorrectly’ or ‘puts improper use’ to the position
        
        In this case: a great uncle agreeing to open joint accounts with them and them transferring £100,000 to a different account to pay in part for a house for him to live, which was then transferred into the daughter’s name was not an abuse of position. As the account was joint they could take out any amount of money unless there was restrictions on the account which there was not. The great uncle still maintained an equitable interest in the property though it was transferred to the daughter’s name
        It seems this was an error by the court and if someone is dishonest, they would abuse the power but it seems here dishonesty and abuse of power should be dealt with separately and take a legalistic approach until this is changed
- - - - S2(a) a representation is false if it is true or misleading
        
        Is charging significantly above market rates deceiving? Generally, they can choose what to charge and customer decides of fair and the separate element of fraud by abuse of position may be more suited.
        
        R v Silverman- circumstances of mutual trust can make a dishonestly excessive price misleading/deceptive as one party but not the other knows it is excessive because they were vulnerable and ‘far from worldly wise’
        
        R v Jones- excessive price for milk- false representation not brought out of stupidness like in Silverman, but born out of trust and carelessness to check quantities he was getting etc, as he considered him a friend
        
        S2(5) covers deceiving of a machine ‘for purposes of this section a representation may be regarded as made of it (or anything implied by it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without any human intervention)
      - S2(3)(a) a representation means any representation as to fact or law, including a representation as to the state of mind of the person making the representation or (c) any other person
        
        A false representation as to one’s belief may satisfy the requirements of S2 if it can be shown D does not in fact hold that opinion or belief
        
        Edgington v Fitzmaurice- if a man’s state of mind can be ascertained it is as much a fact as anything else. A misrep as to state of mind can therefore become a misstatement of fact
        
        R v king- car dealer mileage case
        
        Smith v Land and House Property Corporation- If D is in a better position (knows more) to express the belief and opinion than the other party, this may amount to a false representation as the statement of opinion impliedly states he knows facts which justify his opinion
        
        DPP v Ray- state of mind can relate to intention to do something- restaurant case
      - S2(4) a representation may be express or implied
        
        Implied
        
        What D says: R v King- stating the mileage reading on the car ‘may not be correct’ impliedly represented he was not certain that the reading was wrong, when he did know this and altered it himself
        
        Idrees v DPP- someone pretending to be someone else on a driving test meant the person who took the driving test committed fraud for the other person as agent, through conduct of pretending to be him, so the other person was guilty of fraud. Person impersonating is under false representation, person being impersonated may be abuse of position if they knew
        
        D’s conduct: DPP v Ray- continuing representation by ordering and eating a meal, that he had the means and intention to pay for it before leaving
        
        Silence without accompanying action cannot amount to a representation (R v Twaite)
    - - (i) to make gain for himself or another or
      - (ii) to cause loss to another or to expose another to a risk of loss
    - - Intention to make a gain or cause a loss- see below
        
        S5(2)(a) gain and loss extends only to gain or loss in money or other property
        
        S5(2)(b) includes any such gain or loss whether temporary or permanent, and property means any property whether real or personal (including things in action or other intangible property)
        
        S5(3) gain includes a gain by keeping what one has, as well as a gain by getting what one does not have
        
        S5(4) loss includes a loss by not getting what one might get as well as a loss by parting ways with what one has
      - dishonesty (Ivey v Genting Casinos)
        
        (a) what was D's knowledge and belief as to the fcats?
        
        (b) Given that knowledge and those beliefs, was D dishonest by standards of ordinary, decent people?
        
        R v Clarke- even though he lied about his credentials, as he honestly believed he could do the job adequately, the jury should be directed to take this into account also
      - mens rea for false statement
        
        This will be satisfied if D is subjectively aware of the possibility that what they are saying or implying is false
        
        R v Staines- recklessness needs more then mere carelessness or negligence, there must be an indifference to or disregard of whether the statement is true or false. Any belief the statement is true will prevent deception, even if unreasonable. If a person gives a full caveat what they are saying might be false, then the statement is true
- - - - (i) to make a gain for himself or another or
      - (ii) to cause loss to another or to expose another to risk of loss
  - - - Law Commission Report: arising from statute, within a transaction of the utmost good faith, contained in the express or implied terms of a contract, arising from a custom in a particular trade or market, arising from a fiduciary relationship
      - R v Razoq- example of contract to disclose any disciplinary proceedings against him
      - R v Mashta- claiming benefits and had legal duty to disclose once he got a job
    - - matter of fact