正在編輯用戶:Hinnia/Fraud （章節）

== Fraud by Abuse of Position – s 4 ==

=== Statutory definition ===
Section 4(1):

A person is in breach if they:

* (a) '''Occupy a position''' in which they are expected to '''safeguard''', or '''not to act against''', the financial interests of another person;
* (b) '''Dishonestly abuse that position'''; and
* (c) '''Intend''', by means of the abuse:
** To make a gain for themselves or another; or
** To cause loss to another; or
** To expose another to a risk of loss.

Section 4(2):

* Abuse can consist of an '''omission''' as well as an act.

=== “Expected to safeguard / not act against” – whose expectation? ===
The term “expected” is undefined in the statute.

Academic views (as summarised in handout):

* '''Arlidge and Parry''':
** “Expected” might mean:
*** V '''thinks''' D is bound to safeguard/not act against V’s financial interests; or
*** Most people would think D is so bound.
* '''Ashworth''':
** Too variable if based purely on V’s subjective expectations.
** It would not make sense to base it on D’s own expectation.
** Courts may develop a standard of '''“reasonable expectation”'''.

This is clarified in:

* '''Valujevs'''  EWCA Crim 2888
** Fulford LJ:
**# It is for the '''judge''' to decide whether D is '''potentially''' in such a position (where safeguarding is expected). If so, the '''jury''' then decides whether, on the facts, D '''actually did''' occupy such a position.
**# The test of “expected to safeguard / not act against” is based on a '''reasonable person''' standard.

So:

* Whether D occupies a s 4 position is an '''objective, normative''' question: would a reasonable person regard D as expected to safeguard the other’s '''financial interests'''?

=== Nature of the “position” – fiduciary relationships ===
The position must implicate the '''financial interests''' of another.

The Law Commission (Report 276) suggested that many (but not all) s 4 cases will involve a '''fiduciary relationship''', such as:

* Trustee – beneficiary
* Director – company
* Professional – client
* Agent – principal
* Employee – employer
* Partners in a firm
* Within a family
* Voluntary work relationships
* Other non–arm’s‑length contexts

Civil law concept (illustrated by ''Re Coomber'' ):

* Fiduciary relationships range from simple situations (e.g. an errand boy required to return change) to highly intimate and trusting relations.
* Duties of loyalty, “no profit” and “no conflict” rules may be relevant.

Conclusion from the handout:

* A '''fiduciary relationship is sufficient but not necessary''' for a “safeguarding” position under s 4.
* The statutory concept is '''wider''' but overlaps considerably with civil fiduciary ideas.

=== Abuse of position – example case ===

* '''Marshall'''  EWCA Crim 2076
** D was manager of a residential home for persons with severe learning difficulties.
** She used '''£7,000 from residents’ accounts''' for her own purposes.
** Conviction under '''s 4''' upheld: classic abuse of a position where D was expected to safeguard residents’ financial interests.

Overlap with theft (''Hinks''):

* In ''Hinks'', D received large “gifts” from a person with limited mental capacity, raising concerns about theft’s breadth.
* Fraud by abuse of position now clearly covers some situations where D exploits another’s trust to appropriate benefits, especially where there is a '''safeguarding role'''.

The handout asks:

* Does the existence of s 4 mean the Theft Act '''should no longer be used''' in such situations?
* It also notes that s 4 may help address certain '''gaps''' in theft law:
** E.g. pirate copying of goods (where IPD is tricky under s 6 and ''Lloyd''), or misuse of '''confidential information''' (not “property” for theft: ''Oxford v Moss'').

=== Mens rea for s 4 ===

* '''Dishonesty''' (Ivey).
* '''Intention''' (as under common elements):
** D must intend, by means of the '''abuse of position''', to make a gain or cause loss/risk of loss.