Fraud As Defined In The Fraud Act 2006: S3 – Fraud By Failing To Disclose Information – Actus Reus And Mens Rea (Copy)
Fraud As Defined In The Fraud Act 2006: s3 – Fraud By Failing To Disclose Information – Actus Reus And Mens Rea
(England And Wales — Statutes & Case Law Only — Tabular, Quick-Revision, Examiner-Focused)
Statutory Definition (s3 Fraud Act 2006)
| Statute | Provision | Legal Effect |
|---|---|---|
| Fraud Act 2006 s3 | Fraud by failing to disclose information | Creates omission-based fraud offence |
Exam precision: Liability arises where D dishonestly fails to disclose information which he is under a legal duty to disclose, intending to make a gain or cause a loss.
Structure Of The Offence
| Component | Requirement |
|---|---|
| Actus reus | Failure to disclose information |
| Legal duty | Duty to disclose must exist |
| Mens rea | Dishonesty + intent to gain or cause loss |
| Completion | Offence complete on dishonest non-disclosure |
ACTUS REUS
1. Failure To Disclose Information
| Requirement | Authority | Principle |
|---|---|---|
| Omission | s3 | Silence / non-disclosure |
| Information | Common law | Material facts |
| No disclosure | s3 | Partial disclosure may still suffice |
- Mere silence can amount to fraud
- No need for:
- Positive representation
- Active deception
2. Existence Of A Legal Duty To Disclose
| Source Of Duty | Authority | Explanation |
|---|---|---|
| Statute | s3 | Express statutory duties |
| Contract | Common law | Contractual disclosure obligations |
| Fiduciary relationship | Common law | Trust-based duties |
| Special relationship | Common law | Insurance, agents |
| Case | Principle |
|---|---|
| R v Firth (1990) | Duty may arise from role |
| R v D’Silva (2006) | Duty may arise from contract |
- Moral duty insufficient
- Must be a legal obligation
Written and Compiled By Sir Hunain Zia (AYLOTI), 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. What Must Be Disclosed
| Factor | Explanation |
|---|---|
| Materiality | Information must be relevant |
| Relevance | Would influence decision |
| Scope | Depends on nature of duty |
| Case | Principle |
|---|---|
| R v Masood (2009) | Failure to disclose material fact |
- Trivial information is unlikely to qualify
- Focus on impact of omission
4. To Whom Disclosure Is Owed
| Rule | Authority |
|---|---|
| Any person to whom duty owed | s3 |
| Automated systems included | s3 + s5 |
- Includes:
- Employers
- Contracting parties
- Regulatory bodies
MENS REA
1. Dishonesty
| Authority | Principle |
|---|---|
| Ivey v Genting Casinos (2017) | Objective dishonesty test |
| R v Barton (2020) | Criminal confirmation |
- Jury must:
- Determine D’s knowledge/belief of facts
- Apply objective standards of ordinary people
Written and Compiled By Sir Hunain Zia (AYLOTI), 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. Knowledge Of Duty To Disclose
| Requirement | Authority | Explanation |
|---|---|---|
| Awareness of duty | R v D’Silva (2006) | D must know of obligation |
| Ignorance | Common law | May negate mens rea |
- D must:
- Know facts giving rise to duty
- Honest ignorance may negate liability
3. Intent To Make A Gain Or Cause A Loss
| Rule | Authority |
|---|---|
| Intention required | s3 |
| Gain or loss | s5 Fraud Act 2006 |
| Term | Meaning |
|---|---|
| Gain | Money or other property |
| Loss | Money or other property |
| Nature | Temporary or permanent |
| Beneficiary | D or another |
| Case | Principle |
|---|---|
| R v Seager; R v Blatch (2009) | No actual gain/loss required |
Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 7 Distinctions And 11 World Records For Educate A Change AS Level Law Full Scale Course
Coincidence And Completion
| Principle | Authority |
|---|---|
| Mens rea at time of omission | Common law |
| Offence complete upon dishonest failure | Fraud Act 2006 |
- No requirement for:
- Victim reliance
- Actual loss
Actus Reus + Mens Rea Summary Table
| Element | Requirement | Authority |
|---|---|---|
| Omission | Failure to disclose | s3 |
| Legal duty | Statute/contract/fiduciary | D’Silva |
| Dishonesty | Objective test | Ivey |
| Knowledge | Of duty and facts | D’Silva |
| Intent | Gain or loss | s3; s5 |
Examiner Scenario Table
| Scenario | Liability Under s3? | Reason |
|---|---|---|
| Employee hides conflict of interest | Yes | Duty + dishonesty |
| Insurance applicant omits illness | Yes | Legal duty |
| No duty to speak | No | s3 fails |
| Honest mistake about relevance | No | No dishonesty |
| Gain intended, none achieved | Yes | Intention sufficient |
Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 7 Distinctions And 11 World Records For Educate A Change AS Level Law Full Scale Course
Comparison: s2 Vs s3 Fraud
| Feature | s2 False Representation | s3 Failure To Disclose |
|---|---|---|
| Conduct | Positive statement | Omission |
| Duty required | No | Yes |
| Silence sufficient | Sometimes | Always |
| Typical context | Lies | Withholding facts |
Examiner Hotspots
| Issue | Key Authority |
|---|---|
| Legal duty | s3; D’Silva |
| Dishonesty | Ivey |
| Material omission | Masood |
| Intention only | Seager |
| No reliance needed | Fraud Act 2006 |
Common Examiner Errors
| Error | Correction |
|---|---|
| Treating silence as always fraud | Duty required |
| Using moral duty | Must be legal |
| Requiring actual loss | Not required |
| Ignoring knowledge of duty | Essential |
High-Yield Examiner Lines
- “Section 3 criminalises dishonest failure to disclose information where a legal duty exists.”
- “A moral duty is insufficient; the duty must be legal.”
- “Dishonesty is assessed objectively under Ivey.”
- “No actual gain or loss is required.”
- “The offence is complete upon dishonest non-disclosure.”
Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 7 Distinctions And 11 World Records For Educate A Change AS Level Law Full Scale Course