正在編輯用戶:Hinnia/Fraud （章節）

== Fraud by False Representation – s 2 ==

=== Statutory definition ===
Section 2(1):

A person is in breach of s 2 if they:

* '''Dishonestly make a false representation''', and
* '''Intend''', by making the representation:
** To make a '''gain''' for themselves or another; or
** To '''cause loss''' to another; or
** To '''expose another to a risk of loss'''.

Section 2(2):

* A representation is '''false''' if:
** It is '''untrue or misleading''', and
** The person making it '''knows''' that it is, or '''might be''', untrue or misleading.

Section 2(3)–(5):

* “Representation” covers:
** Any representation as to '''fact or law'''.
** Includes representations as to the '''state of mind''' of:
*** The maker, or
*** Any other person.
* Representation may be '''express or implied'''.
* It is made if submitted “in any form” to a '''system or device''' designed to receive, convey or respond to communications, with or without human intervention.

=== Actus reus of s 2 – three elements ===
According to the handout, the actus reus involves:

# '''A representation'''
# Which is '''false''' (i.e. untrue or misleading)
# Which is '''made''' by D

==== “False” – untrue or misleading (s 2(2)(a)) ====

* Per Smith, Hogan & Ormerod:
** An '''untrue''' statement is literally false.
** A statement can be '''misleading''' even when '''literally true'''.

The handout emphasises:

* Prosecution must prove the representation is '''untrue or misleading''', not “untrue and misleading”.
* It would be '''absurd''' if “untrue” meant just “literally untrue”:
** Much language is metaphorical; the law must look at what is '''conventionally''' understood as untrue or misleading.
* “Untrue” should be taken as '''conventionally false''', whether literally or metaphorically.

==== Falsity and knowledge of falsity – s 2(2)(b) ====

* A representation is “false” only if:
** It is untrue or misleading; '''and'''
** D '''knows''' that it is, or '''might be''', untrue or misleading.

Question from the handout:

* What if what D says is '''actually true''' and '''not misleading''', but D '''believes''' it to be false?

Case:

* '''Deller''' (1952)
** D sold a car saying it was free of encumbrances. He believed he was lying because he thought there was a valid mortgage on the car.
** In fact, the mortgage was '''invalid''', so the car '''was''' unencumbered; what he said was '''true'''.
** Held: no liability under the old “obtaining by false pretences” offence.
** Under the Fraud Act, this would also '''not''' be a false representation (since it is not “untrue or misleading”), though it may be '''attempted fraud'''.

==== Representation – broad, including implied and continuing ====
Section 2(3):

* Representation may relate to:
** '''Facts'''
** '''Law'''
** A '''state of mind''' (of D or another).

Implied representations – case illustrations:

* '''Barnard''' (1837)
** Wearing an Oxford student’s gown implied a representation that D '''was a student'''.
* '''Idrees v DPP'''
** Implied representation can be made '''through another person''', acting effectively as an '''agent'''.
* '''Harris''' (1975)
** Booking into a hotel is an implied representation of '''intention to pay''' at the end of the stay.
* '''Ray'''  AC 370
** Remaining at the table in a restaurant after consuming a meal was held to be a '''continuing representation''' that D intended to pay.
** Handout notes similar reasoning may apply under the Fraud Act (see also Government of UAE v Allen  EWHC 1712 (Admin)).

Credit and debit card use:

* '''Charles'''  AC 177; '''Lambie'''  AC 449
** Presenting a card is an implied representation that:
*** The merchant '''will be paid''' by the card company; and possibly that
*** D '''has the authority''' of the bank/credit‑card company to use it.
** In ''Lambie'', the store manager was only concerned that the store would be paid; the handout notes debate over whether D is “impliedly” representing something to the store about the bank’s rights, raising concerns about how wide the notion of implied representation can stretch.

Overall:

* The category of implied representations is '''very wide''', and the exact boundaries post‑Fraud Act remain somewhat unsettled.

==== “Making” the representation – including machines (s 2(5)) ====
Section 2(5):

* A representation is “made” if it (or anything implying it) is '''submitted in any form''' to a system or device designed to receive, convey or respond to communications (with or without human intervention).

Consequences:

* One can “make” a representation to a '''machine''' or '''automated system''' (e.g. online forms, ATMs) just as to a person.
* The handout suggests:
** It seems plausible that “making” a representation '''does not require''' that it be '''received''' or that communication be completed.
** For machines, submission to the system may be enough, even if no human reads it.

Open question in the handout:

* If a person '''saves but does not send''' an email to their own computer, is that “submitted” to a system? The text notes that s 2(5) does not require submission to a system designed to “act on it”, raising interpretive issues.

=== Mens rea of s 2 ===
Mens rea has three elements:

# '''Dishonesty'''
#* Apply '''Ivey''' (see theft notes). D’s belief about facts is considered, but not D’s personal view of honesty.
# '''Intention'''
#* D must intend, '''by making the representation''', to make a gain or cause loss/risk of loss (see section on “causation in the head”).
# '''Knowledge that the representation is or might be untrue or misleading''' (s 2(2)(b))
#* At least subjective '''awareness of risk of falsity'''.
#* Cannot be satisfied by “ought to have known”.

Case:

* '''Augunas'''  EWCA Crim 2046
** It is wrong to direct a jury that D is guilty if D '''ought''' to know the representation is untrue or misleading.
** A '''subjective''' standard is required:
*** However, where D '''wilfully shuts their eyes''' to obvious doubts as to genuineness, they can be said to '''know it might be''' untrue or misleading.
*** This is “wilful blindness” functioning as constructive knowledge.