The Fraud Act 2006—Some Early Observations and Comparisons with the Former Law
| DOI | 10.1350/jcla.2007.71.3.220 |
| Author | Carol Withey |
| Published date | 01 May 2007 |
| Date | 01 May 2007 |
| Subject Matter | Comment |
COMMENT
The Fraud Act 2006—Some Early
Observations and Comparisons with the
Former Law
Carol Withey*
This comment considers the offence of fraud by false representation as
enacted by the Fraud Act 2006, s. 2 and the offence of obtaining services
dishonestly contrary to s. 11 of that Act. The intention is to make some
preliminary observations regarding the nature of these offences and to
assess how effectively they deal with the problems emanating from the
former deception offences.
The deception offences provided by the 1968 and 1978 Theft Acts
were criticised by the judiciary and by academics and students of this
area of the law. In its report on fraud1the Law Commission highlighted
some of the difficulties presented by the former law. One major problem
was that there were too many offences as opposed to a single offence
encompassing various types of fraudulent conduct. The Commission
stated:
By relying on a range of specific fraud offences, defined with reference to
different types of consequences, the law is left vulnerable to technical
assaults.2
In preference to this, the Commission was of the view that ‘a single
crime of fraud would dramatically simplify the law of fraud’3and that
a ‘general offence of fraud would be a useful tool in effective
prosecutions’.4
Another problem arising from the number of fraud offences was that
the law was perplexing in places; there was overlap and prosecutors
were often confused as to which offence to proceed with. A difficulty
arising from over-particularisation was that a defendant might have
faced ‘the wrong charge or too many charges’.5
The Law Commission Report also considered the inability of the law
to deal with modern methods of criminal activity, such as internet
fraud:
* Lecturer in criminal law, University of Greenwich, QM 211 Maritime Greenwich
Campus, Old Naval College, Park Row, Greenwich, London; Lecturer in Criminal
Law and the Law of Evidence, International Center for Legal Studies, USA; e-mail:
C.A.Withey@gre.ac.uk.
1 Law Commission, Fraud, Law Com. Report No. 276, Cm 5560 (2002), available at
www.lawcom.gov.uk/lc_reports.htm#2002, accessed 16 March 2007.
2 Ibid. at para. 3.19.
3 Ibid. at para. 1.6(3).
4 Ibid. at para. 1.6(2).
5 Ibid. at para. 3.20.
220
A general offence of fraud would be aimed at encompassing fraud in all its
forms. It would not focus on particular ways or means of committing
frauds. Thus it should be better able to keep pace with developing
technology.6
Parliament, on the whole, adopted the recommendations of the Law
Commission in Part VII of the Report. The Fraud Act 2006 (FA 2006)
came into force on 15 January 2007. This Act abolished the following
offences under the Theft Act 1968: obtaining property by deception
(s. 15); obtaining a pecuniary advantage by deception (s. 16); procuring
the execution of a valuable security (s. 20); obtaining a money transfer
by deception (s. 15A). FA 2006 also abolished the following offences
under the Theft Act 1978: obtaining services by deception (s. 1); evasion
of liability (s. 2).
The FA 2006 introduces new offences—the main offence being fraud
under s. 1. Although the previous law has been repealed, the current
offence shares many elements of the former deception offences and
therefore much of the previous case law continues to apply.
By s. 1(1) of FA 2006 a person is guilty of fraud if he is in breach of any
of the sections, which provide for different ways of committing the
offence, listed in s. 1(2). The sections listed in s. 1(2) are s. 2 (fraud by
false representation), s. 3 (fraud by failing to disclose information) and
s. 4 (fraud by abuse of position). By s. 1(3)(a) a person found guilty of
fraud on summary conviction is liable to imprisonment for a term not
exceeding 12 months or a fine or both, and by s. 1(3)(b) on conviction
on indictment, to imprisonment for a term not exceeding 10 years or to
a fine or both.
Fraud by false representation
Section 2(1) of FA 2006 provides that D will commit the offence where
he dishonestly makes a false representation and intends, by making the
false representation, to make a gain for himself or another, or to cause
loss to another, or expose another to a risk of loss.
The actus reus first requires a ‘representation’. Where no representa-
tion is communicated D can be charged with an attempt, or with making
off without payment contrary to s. 3 of the Theft Act 1978, which is
retained. Section 2(3) of FA 2006 defines a representation as any repre-
sentation as to fact or law, including a representation as to the state of
mind of the person making it or any other person. The term ‘representa-
tion’ is preferred to the previous term of ‘deception’. Under the Theft Act
1968, s. 15(4) ‘deception’ also included false representations of fact or
law and also false statements regarding the intentions of the person
using the deception or any other person. The old and new law are the
same is this respect, given that a statement of intention is a statement
regarding state of mind. Therefore cases involving such statements will
continue to apply. In DPP vRay7it was held that D, who enters a
restaurant and orders a meal, impliedly represents that he intends to pay
6 Above n. 1 at para. 1.6(4).
7 [1974] AC 370.
The Fraud Act 2006—Some Early Observations
221
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