2.2.8 Fraud – s.2 Fraud by False Representation

Statutory Provision

• s.1 Fraud Act 2006:
  • Creates one offence of fraud, which can be committed in three ways (s.2, s.3, s.4).
• s.2(1) Fraud Act 2006:
  • “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.”
• s.2(2):
  • “Representation” means any representation as to fact, law, or state of mind.
  • May be express or implied.
• s.2(3):
  • Includes representations made by words or conduct (written, spoken, electronic).
• s.2(4):
  • A representation is false if it is untrue or misleading, and the person making it knows it is, or might be, untrue or misleading.
• Maximum penalty: 10 years’ imprisonment (indictable) or 12 months summary.

Actus Reus of s.2

1. A Representation

• Representation may be express (verbal, written) or implied (conduct, omission).
• Wide definition covers modern methods (online, electronic).

Case Law:

• DPP v Ray [1974] AC 370 – D ordered meal in restaurant, decided not to pay but stayed silent. Implied representation of willingness to pay = deception. Fraud Act now covers implied conduct.
• R v Barnard (1837) 7 C&P 784 – D wore academic cap and gown to obtain goods on credit. Implied representation of being Oxford scholar = false representation.

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course

2. Representation Must Be False

• Defined in s.2(2)–(4):
  • False if untrue or misleading.
  • Covers half-truths and concealment of facts.

Case:

• R v King [1979] Crim LR 547 – D sold cars with “clocked” mileage, claiming mileage could not be guaranteed. Half-truth = misleading = false representation.
• R v Silverman [1988] 88 Cr App R 213 – Overcharging elderly customers based on relationship of trust; silence and conduct amounted to misleading representation.

3. Made to Another

• Representation must be communicated (directly or indirectly).
• Not necessary that the victim relies on it → offence complete once false representation is made with intent.
• Case: R v Idrees [2011] EWCA Crim 429 – D arranged for someone else to sit his driving test. False representation (identity) even though test never completed.

Mens Rea of s.2

1. Dishonesty

• Dishonesty is central, judged by Ivey v Genting Casinos [2017] UKSC 67:
  • Step 1: What were D’s actual beliefs about facts?
  • Step 2: Given those facts, would ordinary decent people consider conduct dishonest?
• Case: R v Ghosh [1982] QB 1053 (old two-stage test) now replaced.

2. Knowledge or Belief Representation is False

• s.2(2)(b)–(4): D must know representation is, or might be, false/misleading.
• “Belief” means more than suspicion, but not absolute certainty.

Case:

• R v Lambie [1981] QB 683 – D used credit card beyond limit. By presenting card, she falsely represented authority to use it. Mens rea satisfied because she knew risk it was unauthorised.

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course

3. Intention to Make a Gain or Cause Loss

• Defined in s.5 Fraud Act 2006:
  • “Gain” and “loss” include temporary or permanent.
  • “Gain” = getting what one does not have, or keeping what one has.
  • “Loss” = losing what one has, or not getting what one might have.

Case:

• R v Bevans [1988] 1 WLR 740 – Demand for morphine at gunpoint = intent to gain property (economic value) and cause loss.
• R v Augunas [2013] EWCA Crim 2046 – D claimed he was unaware of false documents used for mortgage fraud. Court held: D must be aware, or at least believe, the representation might be false.

Important Features

• Fraud by false representation is complete on making the representation → no need for victim reliance or actual loss.
• Covers modern fraud: phishing emails, online identity fraud, false insurance claims, credit card misuse.
• Broad scope ensures law keeps pace with technology.

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course

Evaluation

• Strengths:
  • Simplifies old deception offences into one broad offence.
  • Wide coverage (implied, electronic, future, or state of mind representations).
  • No requirement of actual loss makes prosecution easier.
• Weaknesses:
  • Scope arguably too wide → risk of over-criminalising trivial exaggerations.
  • Reliance on dishonesty test (Ivey) → jury inconsistency.
  • Overlap with theft and obtaining services by deception creates complexity.

Reform Proposals

• Academics suggest narrowing “false representation” to exclude mere puffery or exaggeration.
• Law Commission (2020 review of fraud laws) considering modernisation for cybercrime, crypto-assets, and online impersonation.

Exam Application Strategy

1. Quote s.2 Fraud Act 2006.
2. Apply AR: representation (express/implied, fact/law/state of mind), false/misleading (Barnard, King, Silverman), communicated (Idrees).
3. Apply MR: dishonesty (Ivey), knowledge/belief of falsity (Lambie, Augunas), intent to gain/cause loss (Bevans).
4. Conclude liability.

Conclusion

• Fraud by false representation (s.2):
  • Actus Reus: Making a false representation (express or implied, fact/law/state of mind).
  • Mens Rea: Dishonesty, knowledge/belief that representation false, intent to gain/cause loss.
• Case law (Barnard, King, Silverman, Lambie, Bevans, Augunas) confirms breadth.
• Offence complete on making the representation — no need for reliance or actual loss.