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CRIMINAL LAW 2007-8

SUPERVISION 7: SKILLS SESSION 2: STATUTORY


READING, INTERPRETATION AND APPRAISAL
This supervision is intended to expose you to reading, interpreting
and appraising statutory materials, hence there is no assigned
reading for this supervision other than the materials below.
Below are the provisions of the Theft Act 1968 and 1978 which
were repealed by the Fraud Act 2006, and the Replacement
Offences. Read the two and identify:
1. The elements of the Offences as they are identified in the
Statutes.
2. The similarities and differences between the analogous offences
in the Theft Acts and the Fraud Act.
3. Whether the Fraud Act Offences can be considered to be better
defined and more consistent with principle.

THEFT ACT 1968 (AS AMENDED PRIOR TO THE


FRAUD ACT)
15 Obtaining property by deception
Elements:- Mens rea: Dishonesty, Actus Reus: Obtaining property through deception.
(1) A person who by any deception dishonestly obtains property belonging to another,
with the intention of permanently depriving the other of it, shall on conviction on
indictment be liable to imprisonment for a term not exceeding 10 years.
(2) For the purposes of this section a person is to be treated as obtaining property if
he obtains ownership, possession or control of it, and "obtain" includes obtaining for
another or enabling another to obtain or to retain.
(3) Section 6 above shall apply for purposes of this section, with the necessary
adaptation of the reference to appropriating, as it applies for purposes of section 1.
(4) For purposes of this section 'deception' means any deception (whether deliberate
or reckless) by words or conduct as to fact or as to law, including a deception as to
the present intentions of the person using the deception or any other person.

15A. - Obtaining a money transfer by deception.


Elements:- Mens rea: Dishonesty, Actus Reus: Obtaining money through deception.
(1) A person is guilty of an offence if by any deception he dishonestly obtains a
money transfer for himself or another.

(2) A money transfer occurs when(a) a debit is made to one account,


(b) a credit is made to another, and
(c) the credit results from the debit or the debit results from the credit.
(3) References to a credit and to a debit are to a credit of an amount of money and to
a debit of an amount of money.
(4) It is immaterial (in particular)(a) whether the amount credited is the same as the amount debited;
(b) whether the money transfer is effected on presentment of a cheque or by another
method;
(c) whether any delay occurs in the process by which the money transfer is effected;
(d) whether any intermediate credits or debits are made in the course of the money
transfer;
(e) whether either of the accounts is overdrawn before or after the money transfer is
effected.
(5) A person guilty of an offence under this section shall be liable on conviction on
indictment to imprisonment for a term not exceeding ten years.
15B.- This gives a broader overview and gives more definitions.
(1) The following provisions have effect for the interpretation of section 15A of this
Act.
(2) 'Deception' has the same meaning as in section 15 of this Act.
(3) 'Account' means an account kept with(a) a bank; or
(b) a person carrying on a business which falls within subsection (4) below.
(4) A business falls within this subsection if(a) in the course of the business money received by way of deposit is lent to others;
or
(b) any other activity of the business is financed, wholly or to any material extent, out
of the capital of or the interest on money received by way of deposit;
and 'deposit' here has the same meaning as in section 35 of the Banking Act 1987
(fraudulent inducement to make a deposit).
(5) For the purposes of subsection (4) above(a) all the activities which a person carries on by way of business shall be regarded
as a single business carried on by him; and
(b) 'money' includes money expressed in a currency other than sterling or in the
European currency unit (as defined in Council Regulation No. 3320/94/EC or any
Community instrument replacing it).

16. Obtaining pecuniary advantage by deception


Elements:- Mens rea: Dishonesty, Actus Reus: Obtaining pecuniary advantage
through deception.

(1) A person who by any deception dishonestly obtains for himself or another any
pecuniary advantage shall on conviction on indictment be liable to imprisonment for a
term not exceeding five years.
(2) All cases in which a pecuniary advantage within the meaning of this section is to
be regarded as obtained for a person are cases where(a) [repealed];
(b) he is allowed to borrow by way of overdraft, or to take out any policy of insurance
or annuity contract, or obtains an improvement of the terms on which he is allowed to
do so; or
(c) he is given the opportunity to earn remuneration or greater remuneration in an
office or employment, or to win money by betting.
(3) For purposes of this section 'deception' has the same meaning as in section 15 of
this Act.

THEFT ACT 1978


1:-- Obtaining Services by Deception
Elements:- Mens rea: Dishonesty, Actus Reus: Obtaining services through deception.
(1) A person who by any deception dishonestly obtains services from another shall be
guilty of an offence.
(2) It is an obtaining of services where the other is induced to confer a benefit by
doing some act, or causing or permitting some act to be done, on the understanding
that the benefit has been or will be paid for.
(3) Without prejudice to the generality of sub-section (2) above, it is an obtaining of
services where the other is induced to make a loan, or to cause or permit a loan to be
made, on the understanding that any payment (whether by way of interest or
otherwise) will be or has been made in respect of the loan.
2:-- Evasion of Liability by Deception
Elements:- Mens rea: Dishonesty and Intention, Actus Reus: Evasion of liability
through deception.
(1) Subject to subsection (2) below, where a person by any deception-(a) dishonestly secures the remission of the whole or part of any existing liability to
make a payment, whether his own liability or another's; or
(b) with intent to make permanent default in whole or in part on any existing liability to
make a payment, or with intent to let another do so, dishonestly induces the creditor
or any person claiming payment on behalf of the creditor to wait for payment
(whether or not the due date for payment is deferred) or to forgo payment; or
(c) dishonestly obtains any exemption from or abatement of liability to make a
payment;
he shall be guilty of an offence.

(2) For purpose of this section "liability" means legally enforceable liability; and
subsection (1) shall not apply in relation to a liability that has not been accepted or
established to pay compensation for a wrongful act of admission.
(3) For purposes of subsection (1)(b) a person induced to take in payment a cheque
or other security for money by way of conditional satisfaction of a pre-existing liability
is to be treated not as being paid but as being induced to wait for payment.
(4) For purposes of subsection (1)(c) "obtains" includes obtaining for another or
enabling another to obtain.
Sentence: Max. 5 years.

FRAUD ACT 2006


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

2 Fraud by false representation/Deception/misrepresentation


Elements:- Mens rea: Dishonesty, knowledge and intention. Actus Reus: Fraud by
false representation and recklessness.
(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.
(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.

(3) Representation means any representation as to fact or law, including a


representation as to the state of mind of
(a) the person making the representation, or
(b) any other person.
(4) A representation may be express or implied.
(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).
Deals with the problem of fraud with electronic systems.

3 Fraud by failing to disclose information


Elements:- Mens rea: Dishonesty and intent. Actus Reus: Fraud by failing to disclose
information.
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.

4 Fraud by abuse of position


(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.
(2) A person may be regarded as having abused his position even though his
conduct consisted of an omission rather than an act.

5 Gain and loss


(1) The references to gain and loss in sections 2 to 4 are to be read in accordance
with this section.
(2) Gain and loss
(a) extend only to gain or loss in money or other property;
(b) include any such gain or loss whether temporary or permanent;
and property means any property whether real or personal (including things
in action and other intangible property). Real property: Land, Property. Personal
property: Jewellry, money etc.
(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.

Criminal Supervision 7
1. The elements of the Offences as they are identified in the Statutes.
The elements of the Theft Act 1968 include: obtaining property through
dishonesty/perception. Obtaining a money transfer by dishonesty, obtaining
pecuniary advantage by deception.
The elements of the Theft Act 1978 include: obtaining services by deception,
evasion of liability by deception, to make permanent default on any existing
liability to make a payment.
The elements of the Fraud Act 2006 include: fraud by false representation
dishonestly intending to gain from the fraud and cause loss of another, fraud
by failing to disclose information- dishonestly intending to gain from the fraud
and cause loss of another, Fraud by abuse of position - dishonestly intending
to gain from the fraud and cause loss of another.
2. The similarities and differences between the analogous offences in
the Theft Acts and the Fraud Act.
Similarities include that both acts require dishonesty as an element in the
crime.
Differences include that the Fraud Act requires the intention to gain for oneself
and cause a loss of another. Also the first acts headings are very narrow; not
all crimes would fit somewhere under those headings. Moreover, the
sentences are not standard in the first act as some crimes penalties are 10
years and some are, the reason to this is not apparent. These sentences are
standardised in the Fraud Act. Moreover, the first act requires deceiving a
physical person therefore lacks the capacity to deal with internet usage, ATM
machines. This is rectified in the Fraud Act by Section 2, Subsection 5.
3. Whether the Fraud Act Offences can be considered to be better
defined and more consistent with principle.
Yes, as it standardises sentences, is a lot broader therefore includes a variety
of crimes that can be dealt with under this Act. Also deals with electronic
systems, such as phones, credit cards, internet usage, white collar crimes and
ATM machines.