Fraud and the Fraud Act 2006

The Fraud Act 2006 creates a single tripartite offence committed through false representation (s2), failure to disclose information (s3), or abuse of position (s4). Each route requires dishonesty (per Ivey, not Ghosh) plus intention to make gain or cause loss in money/property. Crucially, fraud is a conduct crime: no deception, reliance, or actual gain/loss need occur. The offence completes when D acts dishonestly with requisite intent, making fraud quasi-inchoate. This shifts from pre-2006 deception offences which required proving false representation → deception → causation → result. The rationale: criminalising dishonest conduct intended to cause economic harm captures modern fraud (especially digital) where proving actual deception is impossible.

Ivey v Genting Casinos [2017] UKSC 67: Overruled Ghosh; dishonesty now purely objective—ascertain D's knowledge/belief as to facts, then ask whether conduct was dishonest by standards of ordinary decent people. Critical because it removed the subjective limb allowing defendants to claim they didn't realise conduct was dishonest.

R v Barton and Booth [2020] EWCA Crim 575: Confirmed Ivey binds criminal courts; Ghosh no longer good law. Establishes dishonesty directions must follow Ivey's two-stage test.

R v Gilbert [2012] EWCA Crim 2392: Section 3 requires legal duty to disclose (from statute/contract/fiduciary relationship), not mere moral obligation. Prevents s3 becoming general 'dishonest silence' offence.

R v Valujevs [2014] EWCA Crim 2888: Intention to expose to risk of loss suffices; actual loss unnecessary. Confirms fraud's inchoate nature—liability attaches to dangerous conduct, not harmful results.

R v Cornelius [2012] EWCA Crim 500: 'Position' under s4 includes informal relationships of trust (carer/vulnerable person), not just formal fiduciary duties. Ensures broad protection against exploitation.

Courts apply fraud through systematic analysis:

Step 1: Identify which route (s2/s3/s4). For s2, find the representation (express/implied/to machines), verify it's false and D knew/suspected falsity. For s3, establish legal duty exists. For s4, identify position of trust.

Step 2: Apply Ivey dishonesty—(i) what did D believe about facts? (ii) would ordinary decent people consider conduct dishonest given that belief?

Step 3: Prove intention to gain/cause loss in money/property (s5). Temporary gain/loss counts; keeping what you have is 'gain'; depriving someone of potential gain is 'loss'. Non-pecuniary benefits excluded.

Common triggers: False invoices, misuse of payment cards, benefit fraud, abuse by carers/employees, phishing emails. No need to prove anyone deceived or lost money—offence complete upon dishonest act with intent.

*Applying Ghosh**: Fatal error—always use Ivey. Students wrongly argue 'D thought conduct acceptable so not dishonest'; irrelevant post-Ivey*.

Requiring deception/loss: Fraud is conduct-based; don't analyse whether V was deceived or suffered loss. Offence complete when D acts.

Missing s2(2)(b): False representation alone insufficient—D must know it's untrue/misleading. If D genuinely believes representation true, no fraud regardless of dishonesty.

Confusing gain with advantage: Only money/property counts (s5). Dishonestly obtaining sexual favours, prestige, or information lacking economic value isn't fraud.