⇒ The Fraud Act 2006 creates a new offence of fraud which can be committed in three different ways:

• By false representation
• Failing to disclose information
• Abuse of position

⇒ Section 2(1) of the Fraud Act 2006 states a person is in breach of this section if he:

• Dishonestly makes a false representation, and
• Intends, by making the representation -
1. to make a gain for himself or another, or
2. to cause loss to another or to expose another to a risk of loss.

⇒ The representation can be made in any way e.g. orally, written, online, etc. See, for example, the case of Idrees v DPP [2011].

⇒ Section 2(2) of the Fraud Act 2006 explains that a representation is to be regarded as false if it is 'untrue or misleading'

⇒ So for the defendant to be guilty of fraud, they must have made the representation.

⇒ Notice also that the representation must be 'made'

• This may indicate that representation cannot be made by silence; however, the matter is not straightforward. Section 2(4) of the Fraud Act 2006 explains that the representation can be express or implied, so silence could be a representation. See, for example, the case of R v Barnard [1837].

⇒ This is required by section 2(2)(b) of the Fraud Act 2006. Notice that it is sufficient if the defendant knows that what he or she is saying might be untrue.

⇒ It should be emphasised that it does not need to be shown that the defendant made any kind of gain or indeed that the victim suffers any kind of loss.

⇒ Notice that it must be shown that the defendant intended to make a gain by the representation.

⇒ There is no definition of dishonest in the Fraud Act 2006. Presumable, therefore, the Ghosh test for dishonesty will be used.

⇒ The Ghosh test requires the jury to consider two separate questions in deciding whether or not the defendant was dishonest:

1. Was what the defendant did dishonest according to the standards of reasonable and honest people?
2. Would the defendant realise that reasonable and honest people would regard what he/she did as dishonest?

⇒ If the answer to both these questions is ‘yes’ then the defendant is dishonest. If the answer to either question is ‘no’ then the defendant is not dishonest.

⇒ However, note, the full test does not need to be used in all cases; only the first question needs to be asked unless the defendant gives evidence that he or she thought his or her conduct was honest according to the standards of ordinary people.

⇒ Section 3 of the Fraud Act 2006 states a person is in breach of this section if he:

• Dishonestly fails to disclose to another person information which he is under a legal duty to diclose, and
• Intends, by failing to disclose the information -
1. to make a gain for himself or another, or
2. to cause loss to another or to expose another to a risk of loss.

⇒ The key issue is about when a person is under a legal duty to disclose information → the Act offers no guidance on the issue and so the issue must be one of general law.

⇒ There appears to be considerable overlap between sections 2 and 3 → very often when the defendant fails to disclose when he/she is legally required to disclose this could be an implied deception under section 2 or a failure to disclose under section 3.

⇒ Section 4 of the Fraud Act 2006 states a person is in breach of this section if he:

• Occupies a position in which he is expected to safeguard, or not act against, the financial interests of another person,
• Dishonest abuses that position, and
• Intends, by means of the abuse of that position -
1. to make a gain for himself or another, or
2. to cause loss to another or to expose another to a risk of loss.

⇒ Remarkably the Act fails to define "a position in which he is expected to safeguard, or not act against, the financial interests of another person".

⇒ The notion of abuse is also rather unclear → in particular whether it is intended to apply just to cases where under civil law there is a breach of trust or fiduciary duty or whether or not it is intended to be wider than this.