Learning Outcomes
After reading this article, you will be able to identify and explain the elements of fraud by false representation under the Fraud Act 2006. You will understand the meaning of false representation, the requirements for dishonesty and intent, and how these are applied in practice. You will also be able to apply the Ivey test for dishonesty and distinguish between express and implied representations, as required for the SQE1 assessment.
SQE1 Syllabus
For SQE1, you are required to understand fraud by false representation as a core criminal offence. Focus your revision on:
- the statutory definition and elements of fraud by false representation (Fraud Act 2006, s 2)
- the meaning of "representation" (express and implied)
- the requirements for a representation to be "false"
- the mens rea: dishonesty (including the Ivey test) and intent to make a gain or cause a loss
- practical examples of how the offence is committed and applied
- relevant defences and common pitfalls in exam questions
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Which of the following is required to prove fraud by false representation?
- Actual loss to the victim
- A false representation made dishonestly
- The victim must rely on the representation
- The defendant must intend to make a gain or cause a loss
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Which of these is an implied representation?
- Stating you have a law degree when you do not
- Using a stolen credit card to pay for goods
- Writing a false reference for yourself
- Telling someone you are a police officer when you are not
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What is the correct test for dishonesty in fraud offences?
- Whether the defendant believed their conduct was dishonest
- Whether the conduct was dishonest by the standards of ordinary decent people
- Whether the victim felt deceived
- Whether the defendant intended to repay the money
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True or false? Fraud by false representation requires the victim to actually suffer a loss.
Introduction
Fraud by false representation is a key criminal offence under the Fraud Act 2006. It targets dishonest conduct where a person makes a false representation, intending to make a gain for themselves or cause loss to another. The offence is broad, covering both express and implied representations, and does not require the victim to actually suffer a loss. For SQE1, you must be able to identify the elements of the offence, apply the correct test for dishonesty, and recognise common examples.
Elements of Fraud by False Representation
To prove fraud by false representation, the prosecution must establish both actus reus and mens rea.
Actus Reus: Making a False Representation
A person commits the actus reus by making a false representation. This can be in words, writing, conduct, or even by silence if there is a duty to speak.
Key Term: representation A statement or conduct that conveys information about fact, law, or state of mind, made expressly or impliedly.
Key Term: false representation A representation that is untrue or misleading, and the person making it knows it is, or might be, untrue or misleading.
Express and Implied Representations
- Express representations are clear statements, such as claiming to have a qualification you do not possess.
- Implied representations arise from conduct or circumstances, such as using a credit card (implying you are authorised to use it), or selling goods as genuine when they are not.
Mens Rea: Dishonesty and Intent
The mental element requires two components:
- Dishonesty
- Intent to make a gain for oneself or another, or to cause loss or risk of loss to another
Key Term: dishonesty Conduct that is dishonest by the standards of ordinary decent people, assessed using the Ivey test.
Key Term: intent to make a gain or cause a loss The defendant must intend, by their false representation, to make a gain for themselves or another, or to cause loss or risk of loss to another. Actual gain or loss is not required.
The Ivey Test for Dishonesty
The Supreme Court in Ivey v Genting Casinos [2017] UKSC 67 set out a two-stage test:
- Determine the defendant’s actual knowledge or belief about the facts.
- Decide whether their conduct was dishonest by the standards of ordinary decent people.
The defendant’s own view of whether they were dishonest is irrelevant.
Intent to Gain or Cause Loss
The gain or loss can be temporary or permanent, and relates to money or property. It is enough that the defendant intended this result; it does not have to occur.
Practical Application
Fraud by false representation is a conduct offence. The prosecution does not need to prove that the victim relied on the representation or suffered loss. The focus is on the defendant’s dishonest act and intent.
Worked Example 1.1
Scenario:
Sam uses a stolen debit card to buy groceries at a supermarket. The card is accepted and Sam leaves with the goods.
Answer:
Sam has committed fraud by false representation. By using the card, Sam impliedly represents that they are authorised to use it (false representation). Sam acts dishonestly and intends to gain goods for themselves. It is irrelevant whether the supermarket suffers a loss or not.
Worked Example 1.2
Scenario:
Leah applies for a job and claims on her CV to have a law degree, knowing this is false. She is offered the job but turns it down.
Answer:
Leah has still committed fraud by false representation. She made a false representation (claiming a qualification she does not have), acted dishonestly, and intended to gain employment. The fact that she did not accept the job or receive payment does not prevent liability.
Worked Example 1.3
Scenario:
Ali sells a watch online, describing it as a genuine brand when it is a replica. The buyer pays and receives the replica.
Answer:
Ali is guilty of fraud by false representation. The description is a false representation, made dishonestly, with intent to gain money. The buyer’s actual loss is not required for the offence.
Exam Warning
Fraud by false representation does not require the victim to suffer actual loss or to rely on the representation. The offence is complete once the false representation is made dishonestly with the required intent.
Defences and Common Pitfalls
A defendant may avoid liability if they genuinely believed the representation was true, even if that belief was unreasonable. The key is whether the belief was honestly held.
A lack of intent to make a gain or cause a loss will also prevent liability. Duress may be available if the defendant was compelled to act under threat.
Summary
Fraud by false representation under the Fraud Act 2006 requires:
- A false representation (express or implied)
- Dishonesty (Ivey test)
- Intent to make a gain or cause a loss
Actual loss or reliance by the victim is not required. The offence is broad and applies to a wide range of dishonest conduct.
Key Point Checklist
This article has covered the following key knowledge points:
- Fraud by false representation is defined in s 2 of the Fraud Act 2006.
- A representation can be express or implied, and must be false.
- Dishonesty is assessed objectively using the Ivey test.
- The defendant must intend to make a gain or cause a loss; actual loss is not required.
- The offence is complete once the false representation is made with the required intent, regardless of outcome.
Key Terms and Concepts
- representation
- false representation
- dishonesty
- intent to make a gain or cause a loss
