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Below are the provisions of the Theft Act 1968 and 1978 which were repealed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 preexisting 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.