Fraud

Introduction

This chapter examines the **Fraud Act 2006**, the modern statutory scheme that swept away the unworkable deception offences of the Theft Acts 1968 and 1978. Section 1 creates a **single offence of fraud** committed in any of **three ways** — by **false representation** (s. 2), by **failing to disclose information** (s. 3), and by **abuse of position** (s. 4). The Act also creates the separate offence of **obtaining services dishonestly** (s. 11) and two **preparatory offences** concerning articles for use in fraud (ss. 6 and 7). The single most important — and most heavily tested — structural feature is that fraud under ss. 2 to 4 is a **conduct crime**: the offence is complete the moment the prohibited conduct is performed with the necessary mens rea, whether or not anyone is deceived and whether or not anything is obtained.

Assessment focus

Fraud is a staple of the SQE1 **FLK2** assessment. Single best answer questions are set in **realistic client scenarios** and require you to identify the correct fraud offence and apply its elements. The recurring traps are: (i) treating fraud under s. 2 as a **result crime** (it is not — nothing need be obtained and no-one need be deceived); (ii) confusing s. 11, which **is** a result crime, with the conduct crimes in ss. 2 to 4; (iii) overlooking the **legal-duty requirement** in s. 3; and (iv) forgetting that the **Ivey** dishonesty test applies and that the **s. 2(1) Theft Act 1968 statutory exceptions do not apply to fraud**. This is a closed-book assessment — you must be able to state from memory the actus reus, mens rea and maximum sentence of each offence, together with the key authorities.

Study tips

1) Memorise the **three forms of fraud** under s. 1: false representation (s. 2), failing to disclose (s. 3), abuse of position (s. 4). 2) Lock in the rule that ss. 2 to 4 are **conduct crimes** — complete on the conduct alone — while **s. 11 is a result crime** (services must actually be obtained). 3) Remember the **common mens rea** of ss. 2 to 4: **dishonesty (Ivey) + intent to make a gain or cause loss/expose to risk of loss** in money or property (s. 5). 4) For s. 2, note that **'false'** in s. 2(2) covers a representation the defendant knows is or **might** be untrue or misleading — recklessness is enough. 5) For s. 3, the duty must be a **legal** duty (statute, contract, utmost good faith, fiduciary relationship, custom) — a moral duty is not enough. 6) Master the **Key Notes table** so you can recite each offence's elements and maximum sentence under exam conditions.