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Fraud Act 2006 Actus Reus and mean Rea

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18 Aug 12 #350332 by soulruler
Topic started by soulruler
Fraud Act 2006 s. 2(1)

(from my book on criminal law)

A person is in breach of this section if he (a) dishonestly makes a false representation and (b) intends by making that 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.


Section 2(1) of te Fraud Act 2006 defines the offence of fraud by false representation. It can be broken down into its composite elements on thebasis of te acus reus and the mens rea of the offence.

One actus reus element

Making a false representation

Three mens rea elements

dishonesty
knowing that the representation is false
intention to make a gain or cause a loss.

The Actus Reus element

There is only one element to the actus reus of this offence and that is the making of a false representation. A representation is the communication or presentation of information to others. this may be by words, conduct or a combination of the two. For example, when you first encounter a new leturer, he may make a spoken representation as to his identity by stating "I am your criminal law lecturer" as he enters the room, or may communicate this information by conduct. For example, if someone enters, mounts the platform in the lecture theatre and turns on a PowerPoint presentation with the title "criminal law" it is likely that you will conclude from this conduct that the person concerned is your criminal law lecturer.

There are two elements to false representation that you may need to take into account

It must be untrue or misleading
It can be express or implied.

Untrue or misleading

According to s. 2(2)(a) of the Fraud Act 2006, a representation is false if it is untrue or misleading. In other words, a false representation involves creating an impression in the mind of another that something which is false is really true. Picking up on the example used above, if the person who states "I am your criminal law leturer" is really a psychology lecturer, an IT technician or a student then representation is false because it is untrue and gives a misleading impresssion as to the identity of the person before you.

Of course, it may be more difficult to establish that a represntation by conduct is false. If, for example, the person who mounts the lecture platform and turns on the PowerPoint presentation is an IT technician who has come to check the equipment, you migh have concluded that this was your criminal law lecturer but the technician was not representing that this was the case, It is simply that you drew an incrorrect conclusion from the facts.



Legal Services Act 2006

This covers professional negligence (mistake due to lack of knowledge or care) and Fraud which is covered by the act of negligence and the intention to deceive.

Every litigant whether undergoing FPR or CPR proceedures in UK Courts (or by way of mediation) must apply to the rules of honest and open disclosure and not be involved with any action which by representation or conduct can be seen to be for personal gain or the personal loss of others.

This is also covered under CPR rules of evidence which confirms that no person should make a statement of truth without an honest belief in its validity and no person should allow a third party to make a statement of truth on their behalf which they know to be false.


Objective and Subjective

The actus reus is the objective - so someone takes money from a joint bank account

The mens rea is the subjective - so did the person taking the money do so with the intention of causing loss to the other account holder

In order to prove Fraud you need to establish the act and then prove that it was intentionally to cause loss to the other party.

If the act does not pass the objective and subjective tests it is not fraud.

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18 Aug 12 #350347 by soulruler
Reply from soulruler
The post on Section 2 explains the act of fraud by misrepresentation (a)

Elements of Fraud

Key Statute

1. A person is guilty of fraud if he is in breach of any of the sectoins listed in subsection 2 which provide for different ways of committing the offence.

2. These sections are -

(a) Section 2 (fraud by false representation)
(b) Section 3 (freaud by failing to disclose information) and,
(c) Section 4 (fraud by abuse of position).

Where a departing spouse fails to disclose information such as co-habitation or bank accounts and or a legal team makes a representation to the court which they know to be false either for their clients or their own financial gain then that is fraud.

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