Law – 2 Criminal law | e-Consult

Model Answer

Under the Theft Act 1968, sections 15‑22 created a series of deception offences (e.g., obtaining property by deception, obtaining a money transfer by deception). The core elements were:

• Deception: A false representation made by words or conduct, which the defendant knows to be false.
• Dishonesty: As defined in the same way as for theft (Ghosh/Ivey test).
• Obtaining property: The victim must part with property as a result of the deception.
• Intention to permanently deprive: The defendant must intend to treat the property as their own.

The Fraud Act 2006 repealed the deception offences and introduced a single, flexible offence of fraud, which can be committed in three ways:

1. Fraud by false representation – making a dishonest false representation, regardless of whether it is a “deception” under the old law.
2. Fraud by abuse of position – exploiting a position of trust to obtain a gain.
3. Fraud by omission – failing to disclose information when there is a legal duty to do so.

Key changes include:

• Removal of the need to prove “dishonesty” as a separate element; the Act defines “dishonest” conduct.
• Broader scope – the offence covers a wider range of fraudulent conduct, including omissions and abuse of position.
• Simplified mental element – the defendant must intend to make a gain for themselves or another, or cause loss to another.

Thus, while the Theft Act required a specific false representation and the traditional dishonesty test, the Fraud Act focuses on the dishonest intention to gain and captures conduct that would previously fall outside the narrow deception categories.