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X1. Fraud offences

FRAUD BY FALSE REPRESENTATION

"(1) A person is guilty of fraud if he is in breach of any of the sections listed in subsection (2) (which provide for different ways of committing the offence).
(2) The sections are—
(a) section 2 (fraud by false representation),
(b) section 3 (fraud by failing to disclose information), and
(c) section 4 (fraud by abuse of position).
(3) A person who is guilty of fraud is liable—
(a) on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates’ court or to a fine not exceeding the statutory maximum (or to both);
(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years or to a fine (or to both).
(4) Subsection (3)(a) applies in relation to Northern Ireland as if the reference to 12 months were a reference to 6 months." 
(Fraud Act 2006, s.1)

Note that the offence is complete before and irrespective of whether anyone has acted on the representation.

FRAUD BY FALSE REPRESENTATION

(1) Dishonestly making a false representation

 

"(1) A person is in breach of this section if he—

(a) dishonestly makes a false representation, and

(b) intends, by making the representation—

(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." (Fraud Act 2006, s.2(1))

(1) Dishonestly making a false representation

Representation

Representation

- As to fact or law, including state of mind

 

"(3) “Representation” means any representation as to fact or law, including a representation as to the state of mind of—

(a) the person making the representation, or

(b) any other person." (Fraud Act 2006, s.2(2))

- As to fact or law, including state of mind

- May be express or implied

 

"(4) A representation may be express or implied." (Fraud Act 2006, s.2(3))

- May be express or implied

- Includes a representation to a system or device

 

(5) For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention)." (Fraud Act 2006, s.2(3))

- Includes a representation to a system or device
False representation ​

False representation

- Untrue or misleading

"(2) A representation is false if—

(a) it is untrue or misleading, and

(b) the person making it knows that it is, or might be, untrue or misleading." (Fraud Act 2006, s.2(2))

If falsity depends on the legal effect of a document, that is to be determined by the judge.

- Untrue or misleading

- Person making it known that it is or might be untrue or misleading​
 

"(2) A representation is false if—

(a) it is untrue or misleading, and

(b) the person making it knows that it is, or might be, untrue or misleading." (Fraud Act 2006, s.2(2))

- Person making it known that it is or might be untrue or misleading​

- Reasonable suspicion that it was false or misleading not enough
 

"[9] ... In our judgment, it not good enough for the prosecutor to satisfy the jury that the accused ought to have appreciated that the representation made by him was or might be untrue or misleading, nor is it enough that the circumstances must have given rise to a reasonable suspicion that the representation was, or might be, untrue or misleading. Of course, if an accused person wilfully shuts his eyes to the obvious doubts as to the genuineness of the misrepresentation that he is making, then he knows that it might be untrue or misleading and he would be guilty of the offence..." (R v. Augunas [2013] EWCA Crim 2046)

Dishonestly made

Dishonestly made

- Objective standard of dishonesty applies to the facts as known and relating to D

 

"[84] Thus, the Supreme Court proposed an alternative two-stage test: (a) what was the defendant's actual state of knowledge or belief as to the facts; and (b) was his conduct dishonest by the standards of ordinary decent people?
...

[108] This approach, which was the approach of the Supreme Court in Ivey, makes clear that when Lord Hughes talked in [74] of the "actual state of mind as to knowledge or belief as to the facts" [our emphasis] he was referring to all the circumstances known to the accused and not limiting consideration to past facts. All matters that lead an accused to act as he or she did will form part of the subjective mental state, thereby forming a part of the fact-finding exercise before applying the objective standard. That will include consideration, where relevant, of the experience and intelligence of an accused. In an example much used in debate on this issue, the visitor to London who fails to pay for a bus journey believing it to be free (as it is, for example, in Luxembourg) would be no more dishonest that the diner or shopper who genuinely forgets to pay before leaving a restaurant or shop. The Magistrates or jury in such cases would first establish the facts and then apply an objective standard of dishonesty to those facts, with those facts being judged by reference to the usual burden and standard of proof." (R v. Barton [2020] EWCA Crim 575)

- Objective standard of dishonesty applies to the facts as known and relating to D

(2) Intending to make a gain or cause a loss/risk of loss

 

"(1) A person is in breach of this section if he—

(a) dishonestly makes a false representation, and

(b) intends, by making the representation—

(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." (Fraud Act 2006, s.2(1))

(2) Intending to make a gain or cause a loss/risk of loss

- Gain or loss in money or other property

 

"(1) The references to gain and loss in sections 2 to 4 are to be read in accordance with this section.
(2) “Gain” and “loss”—
(a) extend only to gain or loss in money or other property;
(b) include any such gain or loss whether temporary or permanent;

and “property” means any property whether real or personal (including things in action and other intangible property)." (Fraud Act 2006, s.5)

- Gain or loss in money or other property

- Including keeping what one already has or not getting what one might get

 

"(3) “Gain” includes a gain by keeping what one has, as well as a gain by getting what one does not have.
(4) “Loss” includes a loss by not getting what one might get, as well as a loss by parting with what one has." (Fraud Act 2006, s.5)

- Including keeping what one already has or not getting what one might get

TAX SPECIFIC OFFENCES

TAX SPECIFIC OFFENCES

Knowingly concerned in the fraudulent evasion of income tax

 

"(1)     A person commits an offence if that person is knowingly concerned in the fraudulent evasion of income tax by that or any other person.

(2)     A person guilty of an offence under this section is liable—

(a)     on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum, or both, or

(b)     on conviction on indictment, to imprisonment for a term not exceeding 7 years or a fine, or both.

(3)     In the application of subsection (2)(a)—

(a)     in England and Wales in relation to offences committed before the commencement of section 282(3) of the Criminal Justice Act 2003, and

(b)     in Northern Ireland,

for “12 months” substitute “6 months”.

(4)     This section does not apply to things done or omitted before 1st January 2001." (TMA 1970, s.106A)

Knowingly concerned in the fraudulent evasion of income tax

Knowingly making a false statement to obtain allowance or repayment (Scotland)

 

"(1)     This section applies only in Scotland.

(2)     If any person, for the purpose of obtaining any allowance, reduction, rebate or repayment in respect of tax, either for himself or for any other person, or, in any return made with reference to tax, knowingly makes any false statement or false representation, he shall be liable, on summary conviction, to imprisonment for a term not exceeding six months.

(3)     Notwithstanding anything in the Summary Jurisdiction (Scotland) Act 1954 proceedings for an offence under this section may be commenced at any time within three years from the time when the offence was committed.

(4)     The expression “return” in this section shall be construed without regard to the definition in section 118(1) of this Act."  (TMA 1970, s.107)

Knowingly making a false statement to obtain allowance or repayment (Scotland)

Knowingly concerned in the fraudulent evasion of SDLT

 

"(1)     A person commits an offence if he is knowingly concerned in the fraudulent evasion of tax by him or any other person.

(2)     A person guilty of an offence under this section is liable—

(a)     on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum, or both;

(b)     on conviction on indictment, to imprisonment for a term not exceeding seven years or a fine, or both." (FA 2003, s.95)

Knowingly concerned in the fraudulent evasion of SDLT

VAT fraud

 

VATA 1994, s.72.

VAT fraud
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