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Understanding Fraud in Law

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Understanding Fraud in Law

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Elisabeth Chan

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10.

Fraud

Smith, Hogan and Ormerod's Essentials of Criminal Law (5th edn)

John Child and David Ormerod

p. 417 10. Fraud

David Ormerod, Professor of Criminal Justice, University College London Deputy High Court
Judge Barrister, Bencher of Middle Temple, and John Child, Professor of Criminal Law,
Birmingham Law School Co-Director of the Birmingham Centre for Crime, Justice and Policing
Co-Director of the Criminal Law Reform Now Network

[Link]
Published in print: 12 July 2023
Published online: August 2023

Abstract
This chapter deals with fraud, an offence under section 1 of the Fraud Act 2006 (FA 2006). It first discusses the central fraud
offence, which can be committed by false representation, failure to disclose information, and/or abuse of position. The
chapter then moves to consider related offences of obtaining services dishonestly and possession of articles for use in frauds,
along with other fraud and deception offences. Finally, the chapter outlines potential options for legal reform concerning the
drafting of FA 2006, fraud and the irrelevance of results, and distinguishing theft and fraud; as well as the potential application
of fraud offences within a problem question. Relevant cases are highlighted throughout, with brief summaries of the main
facts and judgments.

Keywords: fraud, offence, Fraud Act 2006, deception, false representation, actus reus, mens rea, legal reform, theft

10.1 Introduction 417

10.2 FA 2006, s2: fraud by false representation 419

10.2.1 Actus reus of s2 419

10.2.2 Mens rea of s2 423

10.3 FA 2006, s3: fraud by failure to disclose information 426

10.3.1 Actus reus of s3 427

10.3.2 Mens rea of s3 428

10.4 FA 2006, s4: fraud by abuse of position 429

Page 1 of 40

Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for
personal use (for details see Privacy Policy and Legal Notice).
Subscriber: University of Sheffield; date: 16 January 2025
10. Fraud

10.4.1 Actus reus of s4 429

10.4.2 Mens rea of s4 432

10.5 FA 2006, s11: obtaining services dishonestly 433

10.5.1 Actus reus of s11 434

10.5.2 Mens rea of s11 434

10.6 Fraud preparation offences 435

10.6.1 FA 2006, s6: possession of articles for use in frauds 435

10.6.2 FA 2006, s7: making or supplying articles for use in frauds 437

10.7 Related fraud and deception offences 438

10.7.1 Conspiracy to defraud 438

10.7.2 TA 1978, s3: making off without payment 441

10.8 Reform 444

10.8.1 The drafting of the FA 2006 444

10.8.2 Fraud and the irrelevance of results 445

10.8.3 Distinguishing theft and fraud 446

10.9 Eye on assessment 446

For an introduction to fraud, listen to this audio recording.

Audio file 10.1

Page 2 of 40

Transcript <[Link]
criminal-essentials5e-audio-recording-10-1-introduction-to-fraud>

10.1 Introduction

Fraud offences are designed to criminalise D’s dishonest conduct—her lies, her withholding of
information, and/or her abuse of position—where she intends V to lose or risk losing property and/or to
gain property herself. This has been contrasted with theft where, put simply, D dishonestly appropriates
the property of another. However, the extent to which these offences operate to target distinct mischief is a
1
p. 418 ↵ matter of contention, particularly since theft has been held to include consensual appropriation.

Fraud is an offence under section 1 of the Fraud Act 2006 (FA 2006). Prior to the FA 2006, conduct that we
would now charge as fraud was criminalised through a variety of deception offences within the Theft Acts
1968 (TA 1968), 1978 (TA 1978), and 1996 (TA 1996). The relevant deception offences in those Acts have
now been repealed. Those deception offences were heavily and consistently criticised, both for their
2
unnecessary complexity as well as their overly restrictive application. For example, under the pre-FA
2006 law, the prosecution had to demonstrate a ‘representation’ from D; that that representation caused V
to form a false belief; that that false belief caused V to act in a specified manner, such as transferring
property; and that V’s behaviour thereby benefited D or another. Demonstrating each causal link within
this chain was often very difficult for prosecutors, and, more importantly, it was argued that D’s behaviour
may have been equally blameworthy even when certain elements were missing (eg where D failed to
3
deceive V, but still gained the advantage ).

4
The FA 2006, based upon Law Commission recommendations, recast this area of the law. Moving away
from the previous result-based deception offences, the fraud offence focuses on D’s dishonest conduct
combined with her intention to make a gain and/or cause a loss or risk of a loss to V. It is therefore a
conduct crime, committed regardless of whether V was deceived or any other consequences were caused.
In this manner, the fraud offence represents a move away from the property harms discussed in Chapter 9
(eg theft, criminal damage, etc), and shares many more characteristics with the inchoate offences to be
discussed in Chapter 11.

The offence of fraud is set out in section 1 of the FA 2006. The maximum sentence on indictment is ten
5
years’ imprisonment (three years more than theft).

1(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).

Page 3 of 40

Fraud under section 1(1) of the FA 2006 is a single offence that can be committed in three separate ways,
set out across sections 2–4. To examine the offence, it is useful to analyse each of these individually.
Following this, the chapter will discuss offences of obtaining services dishonestly (s11) and possession of
articles for use in frauds (s6). We will also provide a brief overview of other related fraud and deception
offences that remain active within the current law.

p. 419 10.2 FA 2006, s2: fraud by false representation

The first route to liability for fraud under section 1 of the FA 2006 is fraud by false representation, defined
in section 2. The offence elements within section 2 are exceptionally wide, and this route to fraud is
6
prosecuted most often in practice.

2(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.

The elements of section 2 are illustrated in Table 10.1.

Table 10.1 FA 2006, s2

Actus reus Mens rea

Conduct element Making a representation Voluntary

Circumstance D’s representation is false Knowledge or foresight of a possibility

element

D’s representation is dishonest In context of D’s knowledge and belief

Result element None None

Ulterior mens rea * Intention, by the making of the representation, to make a gain
element or cause a loss to another or expose another to a risk of loss

There is fraud under section 2 where D dishonestly makes a false representation, with the intention
thereby to make a gain or cause a loss, or risk of loss, to another. Whether V is actually deceived by D’s
representation, and/or whether V loses or D gains, is irrelevant (ie no results need to be demonstrated).

Page 4 of 40

10.2.1 Actus reus of s2

The actus reus of section 2 requires D to have made a representation, and for that representation to be
false.

p. 420 [Link] Making a representation

It must be shown that D made a representation. Three important aspects of a ‘representation’ require
comment: the subject of the representation; the recipient; and the method:

i) The subject of the representation: Paradigm cases will involve false representations as to facts. For
example, D assures V that the painting she is selling is genuine; that the car is not stolen; that she has
sufficient funds to pay for the meal; and so on. However, section 2 is not limited to representations as to
facts.

2(1) ‘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.

D makes a representation as to law where she informs someone about a legal detail, such as a contractual
7
matter; and as to a state of mind where she states her intentions or beliefs or those of another (eg her
intention to pay for goods on delivery).

Difficulty has arisen in relation to statements of opinion. For example, D exaggerates the quality of sale
goods, tells V that her roof would benefit from retiling, etc. Under the pre-FA 2006 law, cases of this kind
8
were decided inconsistently, with certain cases falling short of a representation, whilst others were
9
caught. It is submitted that, under the current law, matters of opinion should always be treated as
representations of D’s belief as to facts. The focus then shifts, in such cases, to whether that opinion was
honestly held.

ii) The recipient of the representation: Representations will usually be made to a person (V). Where this is
the case, there is a question whether V must be aware of the representation for it to be complete. For
example, what if V does not hear D’s spoken comments, because, unknown to D, she is deaf; or V does not
see D’s email because it is blocked by V’s email filters; etc? There is no case yet directly on this point, but it
is likely that the courts will interpret ‘representation’ broadly to be satisfied even where V remains
oblivious. This is supported by a similarly broad interpretation given to ‘communication’ in other areas of
10
the law, a term which is arguably more likely than ‘representation’ to require acknowledgement from V.

Page 5 of 40

Point to remember …

Although V does not need to be aware of the representation, this does not mean that D will commit
the offence when she makes representations intending them to be exclusively private (eg notes
something inaccurate in her diary). Other elements of the offence, such as the required intention to
make a gain or cause a loss by the representation, mean that the offence will only catch
representations that are aimed at influencing others (ie D must intend to make a representation to
another or a machine).

p. 421 ↵ Although D’s representations will usually be aimed at a person, this need not be the case. Under the
pre-FA 2006 law, there had to be a deception of a person, and so liability in cases where D deceived a
11
machine, such as a banking system, became highly problematic. Under the current law, this is addressed
by section 2(5).

2(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).

Despite rather complex drafting, this subsection clearly allows for fraud by false representation where
there is no intended human recipient. If anything, it may be too broadly drafted. Read literally, it may even
apply where D drafts an email containing a misrepresentation and saves (submits) it to her computer (any
system).

iii) The method of the representation: Section 2 can apply regardless of how D chooses to communicate
with V, whether orally; in writing; by gestures; etc. D may even make a representation indirectly via an
agent. This is illustrated in Idrees v DPP.

Idrees v DPP [2011] EWHC 624 (Admin)

Having failed his driving theory test on multiple occasions, D arranged for another person (P) to
impersonate him, and pass the test on his behalf. D was charged with fraud by false representation,
the false representation being P’s impersonation whilst acting as D’s agent.

Magistrates’ court: guilty of fraud.

High Court: appeal dismissed. D was making a false representation (via P), and was doing so
with the intention to make a gain (pass the test).

Page 6 of 40

As well as catching different methods of physical communication, section 6(2) also clarifies that both
express and implied representations will be caught. Thus, just as D makes a false representation when she
tells a shop assistant falsely that she has authority to use a credit card, the same is also true where D
12
simply presents the card for payment, thereby implying that she has authority to do so. The case of
Barnard, although pre-FA 2006, provides a memorable illustration.

Barnard (1837) 7 C & P 784 (pre-FA 2006)

D entered an Oxford cobblers and requested boots and straps. D was wearing a cap and gown (of the
type then worn by Oxford University students), and requested the student discount. D was not a
student of the university and was charged with a deception offence.

Crown Court: guilty. D clearly deceived through an express note which claimed that he was a
student. However, Bolland B went on to say that even if D did not present the note, his dress
provided an implied deception sufficient for liability.

p. 422 ↵ Despite section 2 being wide enough to encompass different methods of representation, one area of
uncertainty has emerged. Given that section 3 of the FA 2006 specifically criminalises fraud by omission,
does section 2 also cover implied representations by omission?

It is contended that for section 2, two scenarios involving omissions can, and should, be distinguished. In
the first scenario, D makes a true representation to V, the facts then change, but D omits to inform V of this
change. In these circumstances, it is possible that D’s representation will be interpreted as a continuing act
to include her failure to inform V after the facts change, and thus it is possible that section 2 will apply.
Pre-FA 2006, such implied representations were found whether D was responsible for the change of facts,
13
or simply became aware of them. This is illustrated in DPP v Ray.

DPP v Ray [1974] AC 370 (pre-FA 2006)

D and others ordered and ate a meal at a Chinese restaurant. They did so intending to pay. However,
at the end of the meal they changed their minds. They continued to sit in the restaurant until the
waiter left the room, and then ran out. D was charged with a deception offence relating to his debt
to the restaurant.

Crown Court: guilty of the deception offence.

Divisional Court: appeal allowed—D’s omission was not a deception.

Page 7 of 40

House of Lords: (3:2) appeal allowed. D’s representations that he was a paying customer
continued from his ordering and eating the food (positive acts) and included his continuing to
sit in the restaurant after he had decided not to pay (omission). Thus, there was coincidence
of deception and mens rea.

In cases such as Ray, recognition of an implied continuing representation is essential to liability and, under
the FA 2006, the potential for implied representations of this kind has been confirmed in Government of the
14
United Arab Emirates v Allen <[Link] However, in
this case, the Divisional Court cautioned that implied continuing representations would only be found
where it was ‘reasonable’ to read such a representation into the conduct of another. Stressing the fact-
specific nature of this inquiry, the court rejected that a representation was made where D failed to inform
her bank that she was no longer able to honour a security cheque deposited when she received a loan.

In the second omission scenario, D becomes aware that V is mistaken about a certain fact, but fails to
correct her mistaken belief. For example, V says ‘it will be great to buy a car which has only had one
owner’, where D, who is selling the car, knows the car has had many more owners. In such cases it could be
argued that, despite no express false representation, D’s silence could amount to an implied
representation that V’s beliefs are correct. However, it is contended that this route to liability should be
15
avoided. In line with CPS charging guidelines, the criminal law should take care not to undermine the

p. 423 ↵ civil rules of caveat emptor (buyer beware), and maintain a difference between active representations
and a simple failure to report faults. In the most serious cases of this kind there will generally be a legal
duty upon D to disclose the omitted information, and in such cases section 3 of the FA 2006, and not
section 2, provides the appropriate route to fraud liability.

[Link] The representation must be false

Section 2(2) defines what is meant by a ‘false’ representation.

2(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.

The first part of this provision, section 2(2)(a), extends the meaning of ‘false’ beyond core cases of
outright untruth to include representations that are misleading. A representation may be misleading, and
thus come within this part of the actus reus, even if it is literally true. For example, if V asks D, a car dealer,
if there has been any reported problem with a particular model of car in the last year, and D answers
honestly that there has not, this may still be misleading if D omits to mention the several hundred reported
problems every other year. Equally, where D displays a fake painting among genuine classics, even if she
16
does not state that the fake is genuine, her choice of display may still be misleading.

Page 8 of 40

Where D believes that her statement is false, but it is in fact true, there will be no fraud. This was the case
17
in Deller (pre-FA 2006), where D agreed to sell his car ‘free of encumbrances’ in the belief that he had
mortgaged the car (ie it was encumbered). However, as the proposed mortgage was unsuccessful, his
18
statement turned out to be true. In such cases, the appropriate charge is attempted fraud.

10.2.2 Mens rea of s2

The mens rea of section 2 is made up of three core elements: D must at least foresee a risk that her
representation is false; she must act dishonestly; and she must intend to make a gain, cause a loss, or cause
a risk of loss to another. Each element must coincide with (ie must be present at the point in time of) D’s
false representation.

[Link] Knowledge that the statement is, or might be, false

This element is satisfied where D either knows her representation is false or misleading, or foresees that it
might be (s2(2)(b)). In either case, subjective mens rea is required: simple negligence (ie a reasonable
19
person would have foreseen) will not be sufficient. This has been confirmed in Augunas, and will include
cases where D deliberately closes her eyes to a risk or deliberately avoids confirming facts when she has at
least foreseen a risk of falsity.

p. 424 ↵ Including the foresight of a risk makes this element of mens rea extremely wide. For example, it will
be satisfied where an art dealer, D, advertises a painting for sale as an original, being aware of the risk,
which seems unavoidable in the art world, that it might be a fake. As a result, the requirement of
‘dishonesty’ is once again crucial for avoiding liability in such cases.

[Link] Dishonesty
The FA 2006 does not provide a definition of dishonesty, and there is also no equivalent to section 2 of the
20
TA 1968 which provides examples of conduct not to be deemed dishonest. Therefore, in the absence of
21
any statutory guidance, the term is left exclusively to the common law definition and the Ivey/Barton test.

We have already discussed the Ivey/Barton test for dishonesty in detail in the context of theft, which will
22 23
not be repeated here. The Ivey/Barton test, which replaces the old common law test in Ghosh, requires
the jury to engage with two questions of fact:

Question 1: What was the actual state of D’s knowledge or belief as to the facts?

Question 2: In the context of Question 1, was D’s conduct dishonest by the standards of ordinary
decent people?

There are several general problems with the Ivey/Barton test, not least the unpredictability of asking a jury
to identify a common standard of honesty. Added to these criticisms, it should be noted that the FA 2006
was created under the explicit understanding that ‘dishonesty’ would be defined and applied according to
24
the old Ghosh test, making the change at common law particularly troubling.

Page 9 of 40

An important question has emerged within the academic literature on fraud and dishonesty: is lying
25
always dishonest? If the answer were ‘yes’, then the section 2 offence would be rendered hopelessly wide.
When television adverts, for example, imply that the spraying of a deodorant will make the wearer sexually
irresistible, or that an energy drink can make you play sport like a professional, such representations are
clearly false, but it is unlikely that they would be considered dishonest by a reasonable person. Ironically in
such cases, the more extreme the lie, and thus the less plausible, the less likely it is to be found dishonest.
However, there is a clear grey area, for example, occupations such as market trading and used car
26
dealerships, where trade patter and exaggeration is common. Such cases will be left to the case-by-case
application of the test in Ivey/Barton, with the likely outcomes far from clear.

p. 425 [Link] Intention to make a gain or cause a loss (or risk of loss)
Section 2 does not require D to make a gain, or to cause or risk a loss to another in fact (ie these are not
actus reus elements). However, D must act with the ulterior intention to achieve at least one of these ends.
For example, where D starts a false rumour about a competitor’s business, this element of the offence will
be satisfied as long as D at least intends to risk causing a loss to that competitor, even if she does not
27
intend to gain anything.

The definitions of ‘gain’ and ‘loss’ are set out in section 5 of the FA 2006.

5(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;

(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.

As made clear in section 5(2)(a), D’s intentions must relate to property, so an intention to gain something
other than property, for example sexual favours, will not be sufficient. However, the definition of property
here is very wide, including all tangible and intangible property, and without the exclusions that exist
28
under the TA 1968.

The final point to remember is one that is easily overlooked: D’s intention must be causal. D must intend to
cause the gain or loss by her conduct. This is illustrated in Gilbert.

Page 10 of 40

Gilbert <[Link]
2012/[Link]> [2012] EWCA Crim 2392

D and others set up a bank account in order to facilitate their company’s activities—developing and
selling real estate. In doing so, they made false representations about their financial position. D was
charged with fraud by false representation.

Crown Court: guilty of fraud.

Court of Appeal: appeal allowed. Although a false representation was made, the court failed to
direct the jury clearly that D must intend to make a gain from that representation.

Importantly, the court in Gilbert did not rule out the possibility that D intended her false representation to
cause a gain in allowing her to finance the company, thereby allowing her to make a profit. However, D’s
conviction in the Crown Court was unsafe because the need to demonstrate this intention-based causal
link was not clarified for the jury.

p. 426 Point to remember …

The requirement for D to intend her conduct to ‘cause’ a gain or a loss provides a further (potential)
tool for limiting liability. Consider the problem examples of extreme advertising, market traders,
and used car salesmen discussed earlier. In such cases, where the trader makes an extreme puff (eg
‘these sunglasses are the same as those worn by David Beckham’), it may be contended that she
does not intend this representation to ‘cause’ V to buy the goods. Rather, perhaps, such comments
29
are intended simply as friendly trade banter or humour.

Test your understanding of this section by trying these self-test questions <[Link]
embed/access/content/criminal-essentials5e-student-resources/criminal-essentials5e-self-test-
questions-10-2>.

10.3 FA 2006, s3: fraud by failure to disclose information

The second way D commits fraud under section 1 of the FA 2006 is fraud by failure to disclose information,
set out in section 3.

Page 11 of 40

3. A person is in breach of this section if he—

(a) dishonestly fails to disclose to another person information which he is under a legal
duty to disclose, and

(b) intends, by failing to disclose the information—

(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.

The elements of section 3 are illustrated in Table 10.2.

Table 10.2 FA 2006, s3

Actus reus Mens rea

Conduct element Failing to disclose information Voluntary

Circumstance D has a legal duty to disclose the None

element information In the context of D’s knowledge and belief
D’s failure to disclose is dishonest

Result element None None

Ulterior mens rea * Intention, by failing to disclose, to make a gain or

element cause a loss to another or expose another to a risk of
loss

p. 427 ↵ As with section 2, section 3 is a conduct crime, where no gain or loss needs to be demonstrated within
the actus reus. However, D must dishonestly fail to disclose information where there is a legal duty to do
so, and D must intend thereby to make a gain or cause a loss or risk of loss to another.

10.3.1 Actus reus of s3

The actus reus of section 3 requires a failure to disclose information where D has a legal duty to do so.

[Link] Identifying a legal duty to disclose information

The question whether a legal duty exists is one of law for the judge. There is no definition of ‘legal duty’ in
30
the statute. However, quoting from the original Law Commission report, the FA 2006 explanatory notes
make clear that ‘legal duty’ should be interpreted in line with the civil law.

Page 12 of 40

7.28 … Such a duty may derive from statute (such as the provisions governing company
prospectuses), from the fact that the transaction in question is one of the utmost good
faith (such as a contract of insurance), from the express or implied terms of a contract,
from the custom of a particular trade or market, or from the existence of a fiduciary
relationship between the parties (such as that of agent and principal).

7.29 For this purpose there is a legal duty to disclose information not only if the defendant’s
failure to disclose it gives the victim a cause of action for damages, but also if the law gives
the victim a right to set aside any change in his or her legal position to which he or she may
consent as a result of the non-disclosure. For example, a person in a fiduciary position has
a duty to disclose material information when entering into a contract with his or her
beneficiary, in the sense that a failure to make such disclosure will entitle the beneficiary
31
to rescind the contract and to reclaim any property transferred under it.

The second paragraph of this guidance is particularly informative, clarifying that a legal duty to disclose
will arise whenever D’s failure to disclose information would render a contract, or relevant part of a
contract, voidable. Clear examples will include a failure to disclose medical conditions when taking out life
insurance; failure to disclose a criminal record when applying for a job; failure, as in Mashta, to reveal a
32
change of financial position when in receipt of State benefits; and so on.

Mashta [2010] EWCA Crim 2595

D continued to receive asylum support on grounds of destitution whilst in gainful employment.

Among other charges, D was charged with fraud by failing to disclose his employment.

Crown Court: guilty of fraud.

Court of Appeal: appeal on sentence allowed, but conviction upheld.

p. 428 ↵ It is important to note that not all financial relationships entail a legal duty to disclose information,
and it is essential for the prosecution to be able to point to a specific legal duty owed by D. Where, for
example, D ceased paying her council tax having told the council, falsely, that she had moved and was
renting the property to another party, she was not liable under section 3 because the prosecution could find
33
no statutory duty on D to inform the council she remained living in the property. Anything short of a
34
clear legal duty to disclose will be insufficient.

Page 13 of 40

Assessment matters …

In most cases D’s failure to disclose could also be presented as a false representation (a
representation that there is nothing to disclose), and so could be prosecuted under section 2. In
clear cases of a failure to disclose, section 3 is likely to be preferred because it provides the most
accurate label for D’s conduct. However, where the presence of a duty is more difficult to identify, it
is likely that section 2 will generally be preferred because there is no requirement within section 2
to demonstrate a duty. We discuss this later in the context of writing assessments (10.9).

[Link] When does D fail to disclose

D’s failure to disclose will often be obvious on the facts. For example, D has a duty in Mashta to disclose any
gainful employment whilst receiving benefits; D does not disclose; so D has ‘failed’ to do so. However, it is
important to remember that a failure to disclose is satisfied not only where D discloses nothing at all, but
also where D fails to disclose sufficient information in a manner that renders relevant parts of a contract
voidable. Thus, even partial disclosure may still satisfy the actus reus of this offence. Again, this question
will involve the judge in a detailed analysis of the relevant civil law obligation.

10.3.2 Mens rea of s3

The mens rea of section 3 requires: (i) D to have acted dishonestly, and (ii) to have intended by her failure
to disclose to make a gain or to cause a loss or risk of loss to another. These two core elements have been
discussed above in relation to section 2 (10.2.2), and should be interpreted in exactly the same way for
section 3.

It should be noted that whilst the section 2 offence required mens rea of knowledge or awareness of a risk
that D’s representation was false, section 3 does not contain any equivalent requirement in relation to the
duty to disclose. Therefore, D may be liable under section 3 even if she did not know or even foresee a
possibility that she was under a legal obligation to disclose information. However, although this seems
unacceptably broad, the possibility for unfairness is limited by the requirement of dishonesty and the Ivey/
Barton test. This is because where D is unaware of a legal duty to disclose, her failure to do so is much less
likely to be considered dishonest by the standards of reasonable and honest people.

Test your understanding of this section by trying these self-test questions <[Link]
embed/access/content/criminal-essentials5e-student-resources/criminal-essentials5e-self-test-
questions-10-3>.

p. 429 10.4 FA 2006, s4: fraud by abuse of position

The final form of the fraud offence is fraud by abuse of position, set out in section 4.

Page 14 of 40

4(1) A person is in breach of this section if he—

(a) occupies a position in which he is expected to safeguard, or not to act against, the
financial interests of another person,

(b) dishonestly abuses that position, and

(c) intends, by means of the abuse of that position—

(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.

The elements of section 4 are illustrated in Table 10.3.

Table 10.3 FA 2006, s4

Actus reus Mens rea

Conduct element Acts or omissions Voluntary

Circumstance D occupies a position in which she is expected to safeguard the None

element financial interests of another

D abuses that position None

D’s abuse of position is dishonest In the context of D’s knowledge

and belief

Result element None None

Ulterior mens * Intention, by abuse of position,

rea element to make a gain or cause a loss
to another or expose another
to a risk of loss

As with sections 2 and 3, section 4 is a conduct crime. D must dishonestly abuse a position in which she is
expected to safeguard the financial interests of another, D must intend thereby to make a gain or cause a
loss or risk of loss to another, but no such gain or loss needs to be demonstrated in fact.

10.4.1 Actus reus of s4

35
The actus reus of section 4 requires D, by act or omission, to abuse a position in which she is expected to
safeguard the financial interests of another.

Page 15 of 40

p. 430 [Link] Identifying the relevant positions

The first element of the actus reus requires D to occupy a position in which she is expected to safeguard the
financial interests of another. Unfortunately, again, this core element is not defined in the statute.

The most obvious interpretation of the required ‘position’ is where D owes a ‘fiduciary duty’ to another (ie
a civil law duty to act within the interests of another). Indeed, most of the examples provided by the Law
Commission and government have involved such duties. For example, employees using insider knowledge
to make secret profits, those taking advantage of vulnerable people whose finances they have agreed to
36
administer, and so on. Marshall provides a useful illustration.

Marshall [2009] EWCA Crim 2076

D was a manager of a residential care home for people with extreme learning difficulties, and in
that position had control over a particular resident’s (V’s) finances. Over a period of time, D
withdrew over £7,000 from the resident’s account and used it for her own benefit. D was charged
with fraud by abuse of position.

Crown Court: guilty of fraud.

Court of Appeal: appeal on sentence (12 months) dismissed.

Beyond cases of this kind, however, the FA 2006 Explanatory Notes indicate that the offence will not be
limited to abuse of a fiduciary duty.

The necessary relationship will be present between trustee and beneficiary, director and
company, professional person and client, agent and principal, employee and employer, or
between partners. It may arise otherwise, for example within a family, or in the context of
voluntary work, or in any context where the parties are not at arm’s length. In nearly all cases
where it arises, it will be recognised by the civil law as importing fiduciary duties, and any
relationship that is so recognised will suffice. We see no reason, however, why the existence of
such duties should be essential. This does not of course mean that it would be entirely a matter for
the fact-finders whether the necessary relationship exists. The question whether the particular
facts alleged can properly be described as giving rise to that relationship will be an issue capable
of being ruled upon by the judge and, if the case goes to the jury, of being the subject of
37
directions.

The guidance maintains that the question of relevant position is one for the judge, but by breaking away
from the civil law concept of fiduciary duty, the task for the judge identifying a relevant position can be
very difficult. Potentially, whenever D is in a position of trust, or expresses some form of loyalty to
38
another, they may satisfy this element. This question was explored in Valujevs.

Page 16 of 40

p. 431 Valujevs [2014] EWCA Crim 2888

D and others were gangmasters (they controlled a group of casual agricultural workers, supplying
accommodation and travel). In order to secure personal gain, D made unwarranted deductions
from workers’ pay, grossly inflated rents, and withheld work in order to force workers into debt. D
was charged with fraud by abuse of position, along with specific unlicensed gangmaster offences.

Crown Court: guilty of gangmaster offences; but no case to answer in relation to fraud.
Although D treated the victims very poorly, he was not ‘expected to safeguard’ their ‘financial
interests’, and so did not fall within the terms of section 4.

Court of Appeal: allowing the prosecution’s appeal. D’s conduct is capable of falling within
the scope of section 4.

The Court of Appeal clarified a number of key points in this judgment. First, it was confirmed that the duty
to safeguard the financial interests of another is an objective question for the court. In other words, we are
not talking about legitimate expectations from D’s or V’s perspective, but from the perspective of the
reasonable person. This is sensible, not allowing D to avoid a duty unfairly, and not allowing V to impose
one artificially. Secondly, the court clarified that although such a duty arose in this case, this was because D
had collected the pay of his workers and was therefore responsible for delivering it to them. Crucially, the
duty did not arise simply because D was charging inflated rents or paying poor wages, and such conduct
39 40
alone will not be sufficient. The Divisional Court revisited this in the recent case of COL v DPP, where V
challenged the CPS decision not to prosecute her employers for their treatment of her as a domestic
servant. There was evidence V had been trafficked into the country by D. The court held that it is possible
that a person can, by virtue of their being an employer, occupy ‘a position in which he is expected to
safeguard, or not to act against, the financial interests of another person’. It will depend on the particular
features of the relationship. In this case, there was the provision of accommodation and dependency of V
on D for her immigration status.

[Link] When does D abuse this position

Once established to the satisfaction of the judge that the position D occupies qualifies in law as a relevant
one, it is then a question of fact for the jury whether she abused this position. Where D owes a fiduciary
duty to V, establishing abuse will involve directing the jury on potentially complex civil law rules relating
to breach of duty. Beyond this, as the offence extends past formal relationships of this kind, the term
‘abuse’ has had to remain flexible. As a result, the term is undefined. This is justified in the Explanatory
41
Notes as a conscious choice to maintain flexibility. Unfortunately, what is gained in flexibility from not
defining such a crucial term is almost certainly lost in lack of certainty and consistency when the offence is
applied by the courts. This is illustrated in Pennock and Pennock.

Page 17 of 40

p. 432 Pennock and Pennock [2014] EWCA Crim 598

A husband and wife (D1 and D2) opened a joint bank account with an uncle (V) aged 90. £100,000 of
V’s money was subsequently transferred into the account and later used to buy a house to be owned
by D1 and D2’s daughter (X). V later claimed to have no knowledge of the account, the transfer, or
the use of the money. D1 and D2 were charged with fraud under section 4 as to (i) the money
transfer, and (ii) transferring the title of the property to X.

Crown Court: guilty of fraud.

Court of Appeal: appeal allowed. The evidence and detail of abuse was not sufficiently clear on
the facts, the trial judge having failed to direct the jury that D1 and D2 were free to make use
of funds from a joint account (where this was free of restrictions) and that the transfer of
property title did not undermine V’s equitable interest because X was not a bona fide
purchaser. Although the court made clear that the facts could have resulted in liability under
section 4, the lack of clear direction from the trial judge as to the civil law involved rendered
the convictions unsafe.

10.4.2 Mens rea of s4

The mens rea of section 4 requires D to have: (i) acted dishonestly, and (ii) to have intended by her abuse of
position to make a gain or to cause a loss or risk of loss to another. These two core elements have been
discussed previously in relation to section 2 (10.2.2), and should be interpreted in exactly the same way for
section 4.

The additional circumstances for the section 4 offence are strict liability elements, as is the case under
section 3. Thus, although D must occupy a position in which she is expected to safeguard the financial
interests of another, and although D must abuse that position, it is not necessary to prove that D had any
specific mens rea as to either of these actus reus elements. D may therefore commit the offence even where
42
she is unaware that she holds such a position. However, as with section 3, although this seems
unacceptably broad, the possibility for unfairness is limited by the requirement of dishonesty and the Ivey/
Barton test. This is because where D is unaware that she occupies a relevant position, her potential abuse of
it is much less likely to be considered dishonest by the standards of reasonable and honest people.

Point to remember …

We discussed in Chapter 9 the central role of ‘dishonesty’ within most of the property offences, and
highlighted criticism of its inability to perform this role effectively. Within the core fraud offences
the same, and arguably even greater, reliance is apparent.

Page 18 of 40

Test your understanding of this section by trying these self-test questions <[Link]
embed/access/content/criminal-essentials5e-student-resources/criminal-essentials5e-self-test-
questions-10-4>.

p. 433 10.5 FA 2006, s11: obtaining services dishonestly

Beyond the core fraud offence, set out across sections 1–5, the FA 2006 contains several separate
43
complementary offences. Obtaining services dishonestly is set out at section 11 of the FA 2006. The
44
maximum penalty on indictment is five years’ imprisonment.

11(1) A person is guilty of an offence under this section if he obtains services for himself or
another—

(a) by a dishonest act, and

(b) in breach of subsection (2).

(2) A person obtains services in breach of this subsection if—

(a) they are made available on the basis that payment has been, is being or will be made
for or in respect of them,

(b) he obtains them without any payment having been made for or in respect of them or
without payment having been made in full, and

(c) when he obtains them, he knows—

(i) that they are being made available on the basis described in paragraph (a), or

(ii) that they might be,

but intends that payment will not be made, or will not be made in full.

The elements of section 11 are set out in Table 10.4.

Table 10.4 FA 2006, s11

Actus reus Mens rea

Conduct element Acts causing the result Voluntary

Circumstance element D’s obtaining of services is dishonest In the context of D’s knowledge and belief

Payment is required for the services Knowledge or foresight of that being the case

No (or insufficient) payment is provided Intention

Result element Services are obtained for D or another Intention

Page 19 of 40

p. 434 ↵ Unlike the offence of fraud discussed earlier, section 11 creates a result crime: D’s dishonest acts must
cause services to be obtained in circumstances where payment is knowingly withheld.

10.5.1 Actus reus of s11

The actus reus of section 11 requires D to have acquired services for which payment is required, and to have
failed to pay for these services in full. Paradigm examples will include cases where D uses an illegal device
(decoder) to watch satellite TV without paying; where D takes goods on hire without intending to pay for
them; where D gains entry to a sporting or music event by climbing over a fence; and so on. Indeed, where
the service requires payment, the offence will even cover D who opens a bank account using false
details <[Link] or continues to use her account
45
having had her authority to do so removed.

Two points should be emphasised. First, as section 11 is a result crime, causation is crucial. Thus, where D
obtains services, for example, gaining entry to a sporting event, with the intention of paying, but decides
after the event that she will not do so, she does not commit a section 11 offence. This is because, at the time
she acts to cause the services to be obtained, she is not yet dishonest; and when she is later dishonest, she
has already obtained the services. The correct charge in these circumstances, discussed later, would be
46
making off without payment (10.7).

Secondly, it must be shown that D acquired a ‘service’. This is not defined in the statute, but is clearly
distinct from and considerably wider than ‘property’. The only restriction is that the service must be one
for which payment is required. Thus, where D acts dishonestly to gain a gratuitous service D does not
commit a section 11 offence.

10.5.2 Mens rea of s11

To satisfy the mens rea of section 11, D must know that payment for the service is or might be required;
must intend to obtain the service without paying; and must act dishonestly. The first two of these
requirements are relatively straightforward, but should be carefully applied. For example, where D lies
about her religion or postcode to access a selective fee-charging school, she will not commit a section 11
offence if she intends to pay the fees: she acts dishonestly to obtain a service, but she does not intend to
47
avoid payment. The final element requires us to apply the Ivey/Barton test for dishonesty. This was
discussed earlier in the context of section 2 ([Link]), and the same approach applies here.

Test your understanding of this section by trying these self-test questions <[Link]
embed/access/content/criminal-essentials5e-student-resources/criminal-essentials5e-self-test-
questions-10-5>.

Page 20 of 40

p. 435 10.6 Fraud preparation offences

Sections 6 and 7 of the FA 2006 criminalise acts in preparation for fraud. Section 6 proscribes possession
of articles for fraud; and section 7 proscribes the making or supplying of articles for use in frauds. In both
cases, the law is trying to facilitate early intervention by the police, targeting D before she has caused or
attempted to cause harm.

Extra detail …

It should be remembered that, under the current law, the principal fraud offence is also drafted in
an inchoate or pre-emptive fashion, criminalising D where she falsely represents, fails to disclose,
or abuses her position with the intent to make a gain or cause a loss, but not requiring that gain or
loss (the substantive harm) to be caused. The offences under sections 6 and 7 criminalise even
earlier conduct.

10.6.1 FA 2006, s6: possession of articles for use in frauds

48
The maximum penalty for section 6 on indictment is five years’ imprisonment.

6(1) A person is guilty of an offence if he has in his possession or under his control any article
for use in the course of or in connection with any fraud.

The elements of section 6 are set out in Table 10.5.

Table 10.5 FA 2006, s6

Actus reus Mens rea

Conduct element Possessing or controlling an article Voluntary (ie known) possession

Circumstance element None None

Result element None None

Ulterior mens rea element * Intention to use the article in connection with fraud

As Table 10.5 illustrates, section 6 creates an extremely broad offence, criminalising the possession or
control of any article with intention to use it in connection with fraud. It is irrelevant for this offence
whether any fraud is completed or not.

Page 21 of 40

p. 436 [Link] Actus reus of s6

The two core elements of the actus reus are that D: (i) has possession or control of (ii) an article.

i) Possession or control: Straightforward cases will involve physical possession of an article on D’s person.
This will include, for example, where D is found with fake bank notes; with a decoding machine facilitating
49
the illegal viewing of paid satellite television; etc. It will also include, as in Nimley, items that might be
otherwise innocent, such as an iPhone.

Nimley [2010] EWCA Crim 2752

D was caught recording cinema films on his iPhone. D had already successfully recorded and
uploaded three previous films to the internet for free consumption. D was charged with offences
including possession of articles (the iPhone) for use in fraud.

Crown Court: guilty of section 6 offence.

Court of Appeal: appeal against sentence allowed, removing the custodial element of the
sentence and replacing it with community service.

Possession or control are not, however, limited to examples of physical possession. For example, where D
has relevant articles stored in her house, in her office, or in other premises, these too will be in her
possession or control. In this manner, we are in possession or control of many thousands of articles at any
50
one time.

ii) Articles: As noted earlier, relevant articles found in D’s possession may be otherwise innocent as long as
D intends to use them in connection with fraud. Thus, the iPhone in Nimley constituted a relevant article
just as much as an item, such as a decoding machine, where the sole function is to facilitate fraud.
Everyday articles such as pens and paper will therefore constitute relevant articles as long as D possesses
them with the required mens rea. Section 8(1) of the FA 2006 also expressly includes ‘any program or data
held in electronic form’ as articles. Thus, where D possesses certain software or a document held in
electronic form, and intends to use it in connection with fraud, she commits a section 6 offence. In
51
Hunter, D ran a ticket-touting business, which involved using software to buy multiple tickets for
sporting and cultural events. In doing so, they breached the terms imposed by the event organiser. D then
sold these tickets at profit without warning the buyers that the tickets might be invalid. D was falsely
representing to the event organiser that the tickets were being bought for individual consumers. The Court
of Appeal upheld convictions for section 6 offences based on the possession of the software.

There must obviously be a limit to how widely these terms will be interpreted by the courts. For example,
we can conclude that D does not have ‘possession’ of all the information on the internet simply through
her ability to access it.

Page 22 of 40

p. 437 Extra detail …

Another aspect of the offence that gives it a wide reach is that the possession only has to be ‘for use
in connection with any fraud’ (ie not necessarily for use to commit fraud). When looking for the
coincidence of elements, this means the offence applies even where D creates the ‘article’ after the
52
fraud has taken place, with the intention of covering her tracks.

[Link] Mens rea of s6

The two core mens rea elements are D’s: (i) knowledge of possession or control, and (ii) intention to use
the article in connection with fraud.

i) Knowledge of possession: It is not clear from the statute whether D must have knowledge, or indeed any
mens rea, as to the fact of possession. However, in line with other possession offences, particularly drug
offences, it is contended that such a requirement should be found by the courts. In most cases, the fact that
D must intend to use the article in connection with fraud will require in effect that D has knowledge of
possession; but not always. For example, where D plans to use a piece of software without realising that the
software is already installed on her computer. In such cases, it is contended that D should not be liable
under section 6.

ii) Intention to use the article in connection with fraud: The courts have added a gloss to the wording of
the statute, narrowing the offence to more acceptable limits. D must have intended to use the article in
connection with fraud. However, the intention requirement remains broadly constructed. For example, the
phrase ‘in connection’ clearly allows for cases where D does not plan to use the article as a tool for the
fraud, but simply in some related role as, for example, to help cover her tracks; or gain access to the
53
necessary tools; etc. It is also unclear how widely ‘fraud’ should be interpreted: the term clearly covers an
intention to commit an offence under section 1, and most likely sections 9 and 11, but beyond this it
remains uncertain. One useful clarification in Sakalauskas <[Link]
54
2013/[Link]> is that although there needs to be an intention, it can be as to any (unspecified) fraud.

10.6.2 FA 2006, s7: making or supplying articles for use in frauds

55
The maximum penalty for section 7 on indictment is ten years’ imprisonment.

7(1) A person is guilty of an offence if he makes, adapts, supplies or offers to supply any article
—

(a) knowing that it is designed or adapted for use in the course of or in connection with
fraud, or

(b) intending it to be used to commit, or assist in the commission of, fraud.

Page 23 of 40

The elements of section 7 are set out in Table 10.6.

Table 10.6 FA 2006, s7

Actus reus Mens rea

Conduct element Making, adapting, supplying, or offering to supply an article Voluntary

Circumstance None None

element

Result element None None

Ulterior mens rea * Knowing the article is designed or

element adapted for use in connection
with fraud
Or
Intending the article to be used to
commit or assist the commission
of fraud

p. 438 ↵ Section 7 creates an offence capable of numerous constructions (eg making, adapting, supplying,
offering, with knowledge, with intent, etc). As such, it should be applied carefully, ensuring that the
correct construction is identified in relation to each particular factual event. However, at its core, the
offence is designed to criminalise D who is either preparing articles for the commission of fraud herself, or
doing so to assist another.

Test your understanding of this section by trying these self-test questions <[Link]
embed/access/content/criminal-essentials5e-student-resources/criminal-essentials5e-self-test-
questions-10-6>.

10.7 Related fraud and deception offences

56
There are a number of fraud-related offences within the criminal law, including false accounting,
57 58
making false statements as company directors, suppression of documents, and the common law
59
offence of cheating the public revenue. However, in this section we provide a brief account of only two
such offences: conspiracy to defraud and making off without payment.

10.7.1 Conspiracy to defraud

Conspiracy to defraud is a common law offence that criminalises D who agrees with another (D2) on a
60
dishonest course of conduct that risks prejudice to another’s property rights or economic interests. This

p. 439 is a spectacularly wide offence, with the potential to ↵ criminalise an agreement to complete conduct

Page 24 of 40

that may not be a crime or even a civil wrong if simply undertaken by an individual. The exact boundaries
61
of the offence are also far from certain. As a result, unsurprisingly, it has attracted considerable criticism.
The Law Commission recommended abolition of conspiracy to defraud within its recommendations for the
62
FA 2006. However, concerned about possible lacunae within the new statute, and bearing in mind the
63
popularity of the offence with prosecutors, the government favoured retention. There are currently no
signs that the offence will be abolished.

The elements of conspiracy to defraud are set out in Table 10.7. The maximum sentence is ten years’
imprisonment.

Table 10.7 Conspiracy to defraud

Actus reus Mens rea

Conduct element Agreement with another Voluntary

Circumstance Agreement involves a risk to V’s property interests/economic interests Knowledge

element or deception in a public duty

D’s agreement is dishonest In the context of D’s

knowledge and belief

Result element None None

Ulterior mens rea * Intention that the course

element of conduct is completed

[Link] Actus reus of conspiracy to defraud

The core elements of the actus reus of conspiracy to defraud are: (i) an agreement between two or more (ii)
64
on a course of conduct that risks the property or economic interests of another or deception in a public
duty. This is a conduct-based inchoate offence: the agreement must involve a risk to property interests or
deception, but it is irrelevant whether the parties go through with their agreement and whether any
property interests are imperilled.

65
p. 440 ↵ i) Agreement between two or more: As with other conspiracy offences, conspiracy to defraud
requires an agreement (a meeting of minds) between two or more people. However, the agreement need
66
not involve one of the defendants doing the defrauding themselves. For example, in Hollinshead the
House of Lords found a conspiracy to defraud where D1 and D2 agreed to produce devices designed to
corrupt electricity meters, making them fail to record the electricity used, even though the defrauding
would be done by unidentified third parties—the customers using the device.

ii) Risks the property interests of another or deception of someone’s public duty: Agreements to carry out
a course of conduct that would amount to an offence under the Theft Acts and/or the FA 2006 would clearly
satisfy the requirement of risking another’s property interests. Conspiracy to defraud has also been used to

Page 25 of 40

criminalise agreements that if carried out would not amount to an offence. For example, agreements
67
relating to the ‘temporary’ deprivation of another’s property (short of theft), to shifting land boundary
68
fences, to dishonestly obtaining transfers of real property that cannot be charged as theft, to inducing
69
another to take a financial risk they would not otherwise have taken (eg gambling), and so on. However,
70
the case of Evans has clarified that something unlawful is required under this route: either that the object
of the agreement was unlawful or, if the object was lawful, that the means of achieving that object were
71
unlawful.

Alongside agreements that risk property interests, it has long been accepted that the deception of V to act
against her public duty will also satisfy this element of the offence. Examples include D deceiving a public
72 73 74
official to supply export licences, supply information, employ unqualified staff, and so on. Certain
cases suggest that this construction will also apply outside public officials to those deceived into acting
75
against any contractual duties.

[Link] Mens rea of conspiracy to defraud

The mens rea of conspiracy to defraud requires: (i) knowledge of the risks involved in the agreement; (ii)
intention that the course of conduct will be carried out; and (iii) dishonesty. As with all conspiracy
offences, at least two of the parties to the agreement must both satisfy the mens rea (ie there must be a
meeting of minds).

i) Knowledge of the risks: D must recognise the risks posed to the property interests of another, or the
76
possible deception of V acting in a public duty. D’s motives, in this regard, are irrelevant. Thus, in Wai
77
p. 441 Yu-tsang the Privy Council found that D had ↵ conspired to defraud the bank he worked for by failing
to reveal financial information even though he was acting, he claimed, to protect the bank’s interests.

ii) Intention that the course of conduct will be completed: If the parties agree on a course of conduct, but
do not intend that it will be carried out, then no offence is committed. For example, D agrees, but plans to
‘whistle-blow’ and prevent the course of conduct happening.

iii) Dishonesty: The Ivey/Barton test applies here, as discussed previously ([Link]). The potential for other
elements of the offence to catch ostensibly innocent conduct makes the role of dishonesty centrally
important, and therefore the widening and objectifying of that concept in Ivey/Barton particularly
78
troubling.

10.7.2 TA 1978, s3: making off without payment

Making off without payment is an offence contrary to section 3 of the TA 1978. The maximum penalty on
79
indictment is two years’ imprisonment.

Page 26 of 40

3(1) Subject to subsection (3) below, a person who, knowing that payment on the spot for any
goods supplied or service done is required or expected from him, dishonestly makes off
without having paid as required or expected and with intent to avoid payment of the
amount due shall be guilty of an offence.

(2) For purposes of this section ‘payment on the spot’ includes payment at the time of
collecting goods on which work has been done or in respect of which service has been
provided.

(3) Subsection (1) above shall not apply where the supply of the goods or the doing of the
service is contrary to law, or where the service done is such that payment is not legally
enforceable …

The elements of section 3 are set out in Table 10.8.

Table 10.8 TA 1978, s3

Actus reus Mens rea

Conduct element Making off Voluntary

Circumstance element On-the-spot payment is required Knowledge

Payment is not supplied in full Intention

D’s making off is dishonest In the context of D’s knowledge and belief

Result element None None

Ulterior mens rea element * Intention to avoid payment

Making off without payment was intended to provide a simple offence to target cases where D tries to
avoid payment for goods or services by taking flight. For example, running out of a restaurant without
paying the bill, jumping out of a taxi without paying the fare, etc. Importantly, there is no need to
demonstrate any deception, or that D successfully avoided payment. The offence simply requires D to have
dishonestly made off without paying for goods or services that she knows require payment, and doing so
80
with the intention to avoid payment.

[Link] Actus reus of s3

The actus reus of section 3 requires D to: (i) make off, (ii) without payment, where (iii) on-the-spot
payment is required.

Page 27 of 40

i) Making off: Making off simply requires D to have physically moved from the location in which payment
is required. This will be the case whether D leaves surreptitiously, as where D climbs out of a restaurant’s
81
p. 442 bathroom window, or whether she leaves to the ↵ ‘sound of trumpets’. However, D must have fully
left the relevant location. For example, if D is stopped before leaving the restaurant where payment is
82
required she will not have committed the section 3 offence, although there may be liability in attempt.

83
One point remains unresolved in the literature—does D ‘make off’ if V gives her permission to leave? It
84
was held in Hammond that, however obtained, the existence of permission was incompatible with the
notion of ‘making off’, and it is contended that this approach is correct. Where D is dishonest, we may feel
that liability is deserved, but as V has allowed her to leave, section 3 is not appropriate. Liability can likely
be found under fraud by false representation (10.2).

ii) Without payment: This element simply requires that D has not paid for the goods or services, or has not
paid in full.

iii) On-the-spot payment is required: There are two parts to this requirement. First, for payment to be
85
‘required or expected’, it must be that goods or services have been supplied. This will include D taking
86
goods that are supplied via self-service display in a supermarket, or fuel at a self-service forecourt.

p. 443 However, where goods have not yet ↵ been supplied there will be no offence under section 3 as, for
87
example, where D tries unsuccessfully to trick V out of goods and then runs away. Equally, where goods
or services are supplied, but they are of a sufficiently low quality or provided in breach of contract, such
88
that D is not legally obliged to pay for them, there will again be no liability under this section. Section
3(3) also makes it clear that there will be no offence under this section where D makes off without paying
for illegal goods or services, for example from a brothel, or having been supplied with controlled drugs.

The second part of this element is that the payment for goods or services must be required or expected
‘on-the-spot’. This was the focus of the appeal in Vincent.

Vincent <[Link]
2001/[Link]> [2001] EWCA Crim 295

D did not settle his bill in full when leaving two different hotels. On each occasion, he dishonestly
assured the owners (V) that he was about to come into some money and would pay them later, and
on each occasion V allowed him to leave on this basis. D was charged with making off without
payment.

Crown Court: guilty of section 3 offence. Even though V consented to D leaving, D’s dishonest
obtaining of that consent meant that he still ‘made off’ from the spot for the purposes of
section 3.

Court of Appeal: appeal allowed. Where V consents to D leaving without payment, even where
this is procured by dishonesty, D is not ‘making off’ for the purpose of section 3.

Page 28 of 40

In Vincent, V’s consent to later payment meant that payment was no longer required or expected on the
spot (ie at that time, in that hotel). Therefore, D’s leaving that spot could not amount to making off
without payment. Where D acts in this manner, dishonestly avoiding immediate payment with the
intention to make a gain or cause a loss in property, the appropriate charge would be fraud by false
representation (10.2).

[Link] Mens rea of s3

The mens rea of section 3 requires D to have: (i) known that on-the-spot payment was required; (ii)
intended to avoid payment; and (iii) acted dishonestly.

i) Knowledge that on-the-spot payment is required: It will often be clear to D that payment for goods or
services is required of her on-the-spot. However, the element will be lacking where, for example, D leaves
thinking that another party is going to pay, or believing that payment is only required at some later
89
stage.

ii) Intention to avoid payment: The text of section 3 requires D to intend to avoid payment, but is unclear
whether this means an intention to permanently avoid payment or whether intention to avoid payment
temporarily will suffice. This was clarified in Allen.

p. 444 Allen [1985] AC 1029

D left a hotel without settling his bill. His intention was to pay the bill later when he could afford to
do so. D was charged with making off without payment.

Crown Court: guilty of section 3 offence. The trial judge directed the jury that D need only
intend to default from payment at that time.

Court of Appeal: appeal allowed. D must intend to make permanent default.

House of Lords: appeal dismissed, endorsing the Court of Appeal’s reasoning.

It is now clear that D will not come within section 3 unless she makes off with the intention to permanently
avoid payment.

iii) Dishonesty: The Ivey/Barton test applies here, as discussed earlier ([Link]). It is important to
remember that we are looking for dishonesty at the point D makes off.

Test your understanding of this section by trying these self-test questions <[Link]
embed/access/content/criminal-essentials5e-student-resources/criminal-essentials5e-self-test-
questions-10-7>.

Page 29 of 40

10.8 Reform

The open-textured drafting of the FA 2006 has given rise to an interesting range of reform opinions and
debates. For many, the potential breadth of the fraud offences, and the minimal definitional detail
provided as to core concepts, are causes for concern (and perhaps further legislative clarification). In this
section, we discuss three areas of debate: the drafting of the FA 2006; the move to conduct crimes; and the
disappearing distinction between theft and fraud.

10.8.1 The drafting of the FA 2006

90
There has been a trend in modern statutes to define offences in an unhelpfully complex manner. We were
91
critical of this in relation to the Sexual Offences Act 2003, and later we discuss similar criticisms in
92
relation to inchoate offences of assisting and encouraging and the Serious Crime Act 2007. In
comparison to these other statutes, the FA 2006 is remarkably straightforward, defining the three core
routes to fraud liability over just five brief sections. It should also be recognised that, despite extensive use
in the lower courts, there have been very few appeal cases, demonstrating its general success. In this vein,
Virgo comments that:

Legal analysis needs to strike a balance between principle and pragmatism. The Fraud Act on its
face might be criticised for infringing fundamental criminal justice principles, by virtue of its
breadth and uncertainty, but if the legislation enables appropriate responses to be reached,
assisted by judicial interpretation where appropriate, it can be defended. This is the case with the
Fraud Act 2006. Initial concerns about the ambit and interpretation of the legislation have largely
93
proved unfounded. It remains a model of criminal legislation which remains fit for purpose.

p. 445 ↵ Even within Virgo’s statements, however, we should note his acknowledgement of ‘on its face’
uncertainties. The question emerges whether apparent simplicity and success has come at a cost. And three
points should be highlighted.

First, to remove complex details from the statute, a number of key terms have been left undefined. We saw
94 95 96 97
this earlier, for example, with terms such as ‘dishonesty’, ‘service’, ‘position’, ‘abuse’, and so on.
With terms of this kind, where ordinary meanings are not self-evident, the choice not to provide a
98
statutory definition creates uncertainty in the law. In this manner, complexity is not avoided but is
rather hidden within the case law.

Secondly, by removing complex requirements of deception and causation present in the pre-FA 2006
offences, the current law has defined the core fraud offences in an inchoate manner, criminalising D’s
dishonest conduct which is intended to interfere with property rights as opposed to criminalising
successful interferences. Attempting to simplify the law by broadening offence definitions has also been a
common practice in recent years (eg sexual offences; inchoate liability; terrorism offences; etc). The
disadvantage of this is the potential for over—or inappropriate—criminalisation, which we discuss further
in the following sections.

Page 30 of 40

Thirdly, we do not know how many people have simply pleaded guilty to secure a discount in sentence
rather than face trial and challenge the language of the Act.

10.8.2 Fraud and the irrelevance of results

Although the fraud offences are undoubtedly simpler than their equivalents were prior to the FA 2006, the
move from deception-based result crimes to dishonesty-based conduct crimes has considerably widened
99
the range of conduct caught. Unlike the old deception offences, and unlike other property offences
discussed in Chapter 9, the actus reus of fraud does not require D to gain property or cause a loss of
property to another. For example, for section 2 of the FA 2006, D commits fraud as soon as she makes a
false representation with the required mens rea.

The irrelevance of results has broadened liability in two important ways. First, the offence is committed
earlier, when the false representation is made rather than when property is transferred. Although this
change affects all cases, it has a particular impact on cases in which D fails to deceive V and no property is
passed. Under the old law, D committed either an attempt offence or no offence at all. Under the FA 2006, D
has completed the full offence of fraud.

Secondly, at the other end of the scale, the irrelevance of results also expands the offence to capture later
acts. Under the pre-FA 2006 law, it had to be demonstrated that D’s deception caused property to be
transferred. Thus, D could not be liable for deceptive conduct that came after the transfer of property. This

p. 446 created problems in cases, for example, where ↵ D filled her car with petrol intending to pay, but then
changed her mind and deceived the station attendant (V) to avoid payment. The ownership of the petrol
passed to D at the moment it mingled with other petrol in her car; and therefore, by the time D deceived V,
100
there were no property rights to be passed. This has traditionally been dealt with through the offence of
making off without payment, and this continues to apply. However, D’s conduct will now also be fraud by
false representation: D dishonestly makes a false representation after filling her tank when she deceives V
(this might be as simple as continuing to act as a paying customer), and does so to make a gain (which
101
includes keeping what one has ).

Recognising the expansion of liability under the FA 2006, two questions should be considered. First, is the
expansion of liability justified: do these cases exhibit a criminal mischief that we want to label as fraud?
Secondly, are the central terms of the new expanded offence, particularly ‘dishonesty’, fit for the purpose
of identifying and targeting only the conduct deserving of criminalisation?

10.8.3 Distinguishing theft and fraud

Having discussed the definition of the fraud offences, it is useful to briefly return to the debate about
102
overlap between theft and fraud. As highlighted at the end of the last chapter, there is a concern that the
103
offences of fraud and theft overlap to an unacceptable degree. The argument here is that where theft
should target D who takes V’s property without consent, fraud should target those who deceive V into
parting with their property voluntarily. However, as we have seen, the current law does not reflect this

Page 31 of 40

neat division. Rather, following Gomez and Hinks, as long as D acts dishonestly, theft can now extend to
104
cases in which V consents to the appropriation of her property. And, alongside this, fraud now requires
no transfer of property at all.

The question emerging from this is whether the current law is well served maintaining these two separate
offences? If the mischief of both offences is now simply focused on dishonest conduct, would a single
105
dishonesty offence provide a more coherent way forward?

10.9 Eye on assessment

In this section we consider the potential application of fraud offences within a problem question, using the
structure of analysis discussed in previous chapters.

p. 447 Step 1 Identify the potential criminal event in the facts

This should be simply stated (eg ‘The first potential criminal event arises where D makes a false
benefit claim’). The role of this stage is to highlight which part of the question you are answering
before you begin to apply the law.

When identifying a potential criminal event, it is important to remember that the main fraud offence is a
conduct crime: the relevant point of potential liability is where D makes the representation (s2), fails to
disclose (s3), or abuses her position (s4), not at the point if and when property rights are affected. Where D
possesses articles for use in fraud (s6), or makes or supplies such articles (s7), the potential event may be
even earlier.

Step 2 Identify the potential offence

Again, state this simply (eg ‘When claiming false benefits, D may be liable for fraud by false
representation’). The role of this stage is to highlight which offence you are going to apply.

Identifying the appropriate offence in this area is not easy, and you need to take time to consider your
options. Chiefly, this is because many of the offences overlap, and so you will usually have more than one
available route to liability. One issue arising here is that it can be possible, and tempting, to answer a whole
problem with reference to only one route to fraud (eg s2). Although accurate, you need to consider the fair
labelling of D (and the need to demonstrate knowledge within an assessment), and so it is useful to

Page 32 of 40

acknowledge and discuss potential liability under different routes. The one caveat here, as always, is that if
the problem question specifies a certain route (eg ‘Discuss Dave’s potential liability for fraud by failure to
disclose’) then you should only do what the question asks of you.

Table 10.9 sets out the offences we have discussed in this chapter (with the addition of theft), ordered in
terms of when they might arise within a problem scenario. On the right, we indicate why you might discuss
this offence as opposed to other overlapping options.

Table 10.9 Identifying and applying fraud offences

Possession of articles for • This offence is useful to criminalise acts where D is in possession of something with
use in frauds the required intent before he has done any more towards a full fraud offence.
• These offences are useful to consider where, for whatever reason, D does not go on to
commit the fraud or theft.

Making or supplying • This offence is useful where D makes or supplies articles for fraud with the required
articles for use in frauds intent.
• Again, these offences are useful to consider where, for whatever reason, D does not
go on to commit the fraud or theft.

Conspiracy to defraud • This offence is useful where D agrees with another person to commit fraud, with the
required intent.
• Again, these offences are useful to consider where, for whatever reason, D does not
go on to commit the fraud or theft.

Fraud by false • This way of committing fraud applies at the point D makes a false representation.
representation • This offence is extremely wide, covering most of the conduct targeted by the two
other routes to fraud liability below. If in doubt, this is probably the one to focus on.

Fraud by failure to • This way of committing fraud applies at the point D fails (omits) to disclose
disclose information where she has a legal duty to do so.
• Where there is an omission and a clear legal duty, such as a failure to disclose a
criminal record when applying for a job, you should try to apply this route to fraud in
preference to fraud by false representation.

Fraud by abuse of • This way of committing fraud applies at the point D abuses her position with a view to
position making a gain or causing a loss.
• Again, although these cases will usually involve a false representation, it is useful to
apply this route to fraud in preference to section 2 where the facts are clear (eg a
carer taking money from her vulnerable patients).

Theft • Theft applies at a later time (and more narrowly) than the offences discussed above,
occurring only when property has been appropriated by D.
• Remember that theft requires potentially problematic elements that fraud does not:
appropriation; intention to permanently deprive.

Page 33 of 40

• Where you could apply theft or fraud, you should consider which offence provides the
most accurate label for what D has done, but also that fraud is the more serious
offence and so should usually be applied in preference.

Obtaining services • Like theft, this offence only applies where results are caused: the obtaining of a
dishonestly service.
• Remember that theft does not apply to services. Thus, where services are obtained,
you should either apply this offence or one of the routes to fraud.

Making off without • This offence comes last in our timeline, applying where D has received the goods/
payment services and then makes off.
• This offence is useful where D’s dishonesty does not arise until after the goods have
been transferred to D. In such a case, theft will not apply due to a lack of coincidence
in time of actus reus and mens rea. However, at the time of making off D will be
dishonest and so will come within this offence.

Watch the following walk-through of Table 10.9 to consolidate your understanding of fraud offences.

Video playback is not supported in this format.

Chapter 10 animated table 10.9

p. 449
448 ↵ ↵ Where, as is likely, you identify more than one possible offence, it is good practice to focus your
analysis on the most appropriate, but also to (briefly) acknowledge the other possible routes.

Step 3 Applying the offence to the facts

Having identified the relevant offence, make sure you discuss each of the required elements.

Actus reus: What does the offence require? Did D do it?

Mens rea: What does the offence require? Did D possess it?

AR and MR are satisfied AR and/or MR are not satisfied

Continue to STEP 4. Return to STEP 2, and look for an alternative offence. If none, then skip to STEP 5, concluding
that no offence is committed.

Page 34 of 40

Step 4 Consider defences

The word ‘consider’ here is important, as you should not discuss every defence for every question.
Rather, think whether there are any defences (eg duress) that could potentially apply. If there are,
discuss those only.

Step 5 Conclude

This is usually a single sentence either saying that it is likely that D has committed the offence, or
saying that it is not likely either because an offence element is not satisfied or because a defence is
likely to apply. It is not often that you will be able to say categorically whether or not D has
committed the offence, particularly when applying concepts such as dishonesty, so it is usually best
to conclude in terms of what is more ‘likely’.

p. 450 Step 6 Loop

Go back up to STEP 1, identifying the next potential criminal event. Continue until you have
discussed all the relevant potentially criminal events.

For advice on how to approach this topic in your assessments, watch the following video.

Video playback is not supported in this format.

Video 10.1

Test your understanding of this chapter by trying these scenario questions <[Link]
embed/access/content/criminal-essentials5e-student-resources/criminal-essentials5e-chapter-10-scenario-
questions>.

Page 35 of 40

Online resources

This chapter is accompanied by a selection of further online resources at [Link]/he/criminal-

essentials5e <[Link] to help you with this topic, including:

Chapter summary sheet <[Link]

resources/criminal-essentials5e-chapter-10-summary?options=showName>

Two sample examination questions <[Link]

student-resources/criminal-essentials5e-chapter-10-examination-questions-and-answers?options=showName>
with answer guidance

Also available on the online resources are:

A selection of videos <[Link]

resources/criminal-essentials5e-videos?options=showName> from the authors sharing advice on problem and
essay questions

Notes
1
We discuss this later in the context of potential reform to the law (10.8.3).
2
For an overview of this criticism, see Law Commission, Fraud and Deception (Consultation 155, 1999).
3
Edwards [1978] Crim LR 49.
4
Law Commission, Fraud (No 276, 2002). See also Home Office, Fraud Law Reform (Consultation, 2004).
5
FA 2006, s1(3)(b).
6
Ormerod, ‘The Fraud Act 2006—Criminalising Lying’ [2007] Crim LR 193.
7
Note that it is for the judge, and not the jury, to decide the legal status of matters such as a contractual term:
Whatcott [2019] EWCA Crim 188.
8
Bryan (1857) Dears & B 265: saying spoons were as good as Elkington’s (a famous brand) was a mere exaggeration.
9
Smith v Land and House Property Corporation (1884) 28 Ch D 7: saying a tenant was ‘most desirable’ where there was
a consistent history of non-payment of rent.
10
Collins [2006] UKHL 40: discussing the offence of grossly offensive communications under the Communications Act
2003, s127.
11
Holmes [2004] EWHC 2020 (Admin).
12
For a similar interpretation pre-2006, see Lambie [1982] AC 449.

Page 36 of 40

13
Rai [2000] 1 Cr App R 242: D failed to inform the local authority that his mother had died, and allowed them to install
the disability aids to which he was no longer entitled.
14
[2012] EWHC 1712 (Admin).
15
[Link]/legal-guidance/fraud-act-2006 <[Link]
16
Hill v Gray (1816) 1 Stark 434.
17
(1952) 36 Cr App R 184.
18
Discussed at Chapter 11.2.
19
[2013] EWCA Crim 2046.
20
See Chapter 9.2.5. The TA 1968, s2 states that there will be no dishonesty in theft where D thinks she has a legal
right, D thinks V would consent, or D thinks V is untraceable by reasonable steps.
21
[2017] UKSC 67.
22
See Chapter [Link].
23
[1982] EWCA Crim 2.
24
See Laird and Ormerod, ‘Ivey v Genting Casinos—Much Ado About Nothing?’ in Clarry (ed), Supreme Court Yearbook,
vol 9 (2018/19) 380, including the potential to challenge the Ivey judgment on this basis.
25
Ormerod, ‘Criminalising Lying’ [2007] Crim LR 193.
26
It should be remembered that the standard for ‘honesty’ is universal, and not industry-specific. The fact that a
certain lie is common within an industry is no excuse for dishonesty: Hayes [2015] EWCA Crim 1944.
27
Usually the prosecution will allege that D either intended to gain or expose V to a risk of loss, but if they allege one
specifically they are obliged to prove that intention: Bush [2019] EWCA Crim 29.
28
eg land and wild creatures. These (and other examples) are not property in the context of theft because they are
excluded by the TA 1968, s4. However, they are property in the context of fraud.
29
Ormerod and Gardner discussed this point in [2007] Crim LR 660.
30
Law Commission, Fraud (No 276, 2002) paras 7.28–7.29.
31
FA 2006 Explanatory Notes, s3.
32
See Salter, ‘It’s Criminal Not to Disclose’ (2007) 37 Fam L 432: discussing divorce proceedings where D fails to
disclose the true extent of her assets. See also Razoq [2012] EWCA Crim 674: D (a doctor) failed to disclose disciplinary
hearings and suspension from hospital to other locum (ad hoc medical work) agencies.
33
D [2019] EWCA Crim 209. Compare Zeroual [2022] EWCA Crim 288: D convicted for, inter alia, failing to disclose his
wife was living with him which meant that he was no longer eligible for the single person’s discount in respect of
council tax.
34
The Law Commission had originally recommended a wider conception of ‘legal duty to disclose’, including ‘moral
duties’. However, this was rejected by the Home Office: Fraud Law Reform (Consultation, 2004) paras 18–25.
35
FA 2006, s4(2).

Page 37 of 40

36
See eg Morris [2021] EWCA Crim 1309.
37
FA 2006 Explanatory Notes, s4. Quoting from Law Commission, Fraud (No 276, 2002) para 7.38.
38
See Collins, ‘Fraud by Abuse of Position: Theorising Section 4 of the Fraud Act 2006’ [2011] Crim LR 513.
39
Collins, ‘Fraud by Abuse of Position and Unlicensed Gangmasters’ (2016) 79 MLR 354.
40
[2022] EWHC 601 (Admin).
41
FA 2006 Explanatory Notes, s4.
42
The term ‘abuse’ implies some form of conscious or intentional wrongdoing. However, there is nothing in the
statute to make such mens rea a requirement.
43
Replacing the old offence ‘obtaining services by deception’ (TA 1978, s1). Withey, ‘The Fraud Act 2006—Some Early
Observations and Comparisons with the Former Law’ (2007) 71 JCL 220.
44
FA 2006, s11(3).
45
Sofroniou [2003] EWCA Crim 3681.
46
Where D has obtained the services and continues to represent that she is willing to pay, there will be an alternative
charge under the FA 2006, s2.
47
Monaghan, ‘Fraudsters? Putting Parents in the Dock’ (2010) 174 CL&JW 581 and ‘School Application Forms and the
Criminal Law’ [2015] Crim LR 270.
48
FA 2006, s6(2).
49
Kazi [2010] EWCA Crim 2752: possession of paper that was to be used to make fake banknotes; Ciorba [2009] EWCA
Crim 1800: possession of a memory stick used to download data from ATM machines.
50
Montague [2013] EWCA Crim 1781.
51
[2021] EWCA Crim 1785.
52
Smith [2020] EWCA Crim 38.
53
Ibid.
54
[2013] EWCA Crim 2278.
55
FA 2006, s7(2).
56
TA 1968, s17.
57
Ibid, s19.
58
Ibid, s20.
59
Ormerod, ‘Cheating the Public Revenue’ [1998] Crim LR 627.
60
Defined in Scott v Metropolitan Police Commissioner [1975] AC 919.
61
Jarvis, ‘Evans and Conspiracy to Defraud: A Postscript’ [2015] Crim LR 704; ATH Smith, ‘Conspiracy to
Defraud’ [1988] Crim LR 508; JC Smith, ‘Conspiracy to Defraud: Some Comments on the Law Commission’s
Report’ [1995] Crim LR 209.

Page 38 of 40

62
Law Commission, Fraud (No 276, 2002) Draft Bill, cl9.
63
See commentary in Ormerod and Williams, Smith’s Law of Theft (2007) paras 5.65 et seq.
64
The precise definition is uncertain. In Evans [2014] EWHC 3803 (Admin), the court had limited the scope to ‘property
rights’, but that has been challenged as being an unwarranted narrowing of the common law test. In the case of
Hunter [2021] EWCA Crim 1785, the Court of Appeal declined to consider this question.
65
Discussed at Chapter 11.3.
66
[1985] AC 975.
67
Scott v Metropolitan Police Commissioner [1975] AC 919: temporary deprivation of cinema tapes.
68
Gimbert [2018] EWCA Crim 2190.
69
Allsop (1976) 64 Cr App R 29.
70
[2014] 1 WLR 2817. Upheld by Fulford LJ when the SFO sought to reopen the prosecution: [2014] EWHC 3803 (QB).
71
Jarvis, ‘Conspiracy to Defraud: A Siren to Lure Unwary Prosecutors’ [2014] Crim LR 738.
72
Board of Trade v Owen [1957] AC 602.
73
DPP v Withers [1975] AC 842.
74
Bassey (1931) 21 Cr App R 160.
75
Welham [1961] AC 103.
76
Cooke [1986] AC 909.
77
[1992] 1 AC 269.
78
See Laird and Ormerod, ‘Ivey v Genting Casinos—Much Ado About Nothing?’ in Clarry (ed), Supreme Court Yearbook,
vol 9 (2018/19) 380.
79
TA 1978, s4.
80
Vincent [2001] 1 WLR 1172.
81
Brooks and Brooks (1982) 76 Cr App R 66.
82
McDavitt [1981] Crim LR 843.
83
Spencer, Letter, ‘Making Off Without Payment’ [1983] Crim LR 573.
84
[1982] Crim LR 611.
85
‘Goods’ are defined by the TA 1968, s34 (made applicable to the TA 1978 by s5(2)). ‘Services’ are not defined in
statute. This may involve an analysis of the civil law: Wilkinson [2018] EWCA Crim 2154.
86
For an alternative view, see Smith, ‘Shoplifting and the Theft Acts’ [1981] Crim LR 586.
87
The charge here, if any, would be for fraud or attempted theft.
88
Troughton v Metropolitan Police [1987] Crim LR 138: taxi driver in breach of contract so payment was not required.
89
Brooks and Brooks (1982) 76 Cr App R 66.
90
Spencer, ‘The Drafting of Criminal Legislation: Need It Be So Impenetrable?’ (2008) 67 CLJ 585.
Page 39 of 40

91
See Chapter 8.9.
92
See Chapter 11.
93
Virgo, ‘The Fraud Act 2006—Ten Years On’ [2017] 10 Arch Rev 6.
94
This term is central to most property offences.
95
Central to the offence of making off without payment (10.7.2) and obtaining services dishonestly (10.5).
96
Required for fraud by abuse of position (10.4).
97
Ibid.
98
Including potential for challenge under Art 7 ECHR.
99
See Chapter 2.4.1.
100
Collis-Smith [1971] Crim LR 716.
101
FA 2006, s5(3).
102
See Chapter 9.8.1.
103
Shute and Horder, ‘Thieving and Deceiving: What is the Difference?’ (1993) 56 MLR 548; Melissaris, ‘The Concept of
Appropriation and the Offence of Theft’ (2007) 70 MLR 581.
104
See Chapter 9.1. Cf Darroux [2018] EWCA Crim 1009 discussed at Chapter 9.2.2.
105
This possibility is discussed (and rejected) by the Law Commission, Fraud (No 276, 2002) paras 5.20–5.57. See also
the proposal to simplify theft to non-consensual taking and borrowing in Tamblyn, ‘Reforming Theft: Taking Without
Consent’ [2020] Crim LR 597.

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