Introduction to Fraud and Making Off
In our previous chapters, we looked at how people might physically take property (Theft) or use force to get it (Robbery). However, the law also needs to deal with people who use lies, tricks, or simple dishonesty to get what they want. This chapter focuses on the Fraud Act 2006 and the offence of Making Off Without Payment. These are essential parts of your Paper 2 exam, where you will apply these rules to specific scenarios.
Don't worry if the legal language feels a bit heavy at first! We will break it down into simple steps so you can spot these crimes in any exam question.
1. The Fraud Act 2006: Section 2 - Fraud by False Representation
This is the most common type of fraud. The unique thing about Section 2 is that the defendant does not actually have to succeed in getting anything to be guilty. The crime is committed the moment they tell the lie with the wrong intention.
The Actus Reus (The Physical Act)
The actus reus is simple: making a representation that is false.
What is a "representation"?
It can be:
- Express: Written or spoken words (e.g., telling someone a fake watch is a genuine Rolex).
- Implied: Your actions or conduct (e.g., wearing a high-visibility jacket and carrying a clipboard to pretend you are a gas inspector).
When is it "false"?
Under the Act, a representation is false if it is untrue or misleading.
The Mens Rea (The Mental State)
To be guilty, the defendant must have three things in their mind:
- Knowledge: They must know the representation is (or might be) false.
- Dishonesty: They must be acting dishonestly by the standards of ordinary people.
- Intention: They must intend to make a gain for themselves or cause a loss to another.
Key Takeaway for Section 2
False Representation = A Lie + Dishonesty + Intent to Gain/Lose. It doesn't matter if the victim believes the lie or not!
2. Understanding "Gain" and "Loss" (Section 5)
The Fraud Act 2006 uses a specific definition for "gain" and "loss" found in Section 5. This applies to both Section 2 and Section 11.
- Property only: Gain and loss only refer to money or other property (including "things in action" like bank balances).
- Temporary or Permanent: A gain can be keeping what one already has, and a loss can be not getting what one might otherwise get.
3. The Fraud Act 2006: Section 11 - Obtaining Services Dishonestly
This offence is different from Section 2 because the defendant must actually succeed in getting the service without paying. Think of this as "sneaking in" to something that usually costs money.
The Actus Reus
The defendant must actually obtain a service.
Example: Sitting through a movie in a cinema without buying a ticket, or jumping over a turnstile to use a train.
The Mens Rea
The defendant must:
- Act dishonestly.
- Know that the service is made available on the basis that payment is required.
- Intend not to pay (avoiding payment in full or in part).
Common Mistake to Avoid: In Section 2, the crime is the lie. In Section 11, the crime is actually getting the service for free when you know you should have paid.
4. Theft Act 1978: Section 3 - Making Off Without Payment
This is often called "bilking." It covers situations where a person has legally received goods or services but then leaves without paying the bill.
Classic Example: Eating a full meal at a restaurant and then running out the back door when the waiter isn't looking.
The Actus Reus
- Goods supplied or services done: The victim must have already provided the service or goods (e.g., the meal is eaten, the taxi ride is finished).
- Making off: The defendant leaves the scene.
- Failure to pay: They do not pay the required amount "on the spot."
The Mens Rea
- Dishonesty: They know they are acting wrongly.
- Knowledge: They know that payment on the spot is expected.
- Intention to avoid payment permanently: This is very important! If the defendant genuinely forgets to pay and intends to come back later, they may not be guilty. They must intend to never pay the bill.
Quick Review: Section 11 vs. Section 3
- Section 11 Fraud: You sneak in (the service provider doesn't know you're there or that you haven't paid).
- Section 3 Making Off: You are a "normal" customer at first, but you run away before paying the bill.
5. Summary Table for Exam Preparation
Use this table to quickly identify which law applies to your exam scenario:
| Offence | Key Statute | Main Focus | Does the victim have to lose out? |
|---|---|---|---|
| Fraud by False Representation | Section 2, Fraud Act 2006 | The Lie (Words or Conduct) | No - Intent is enough. |
| Obtaining Services Dishonestly | Section 11, Fraud Act 2006 | The Service (Sneaking in) | Yes - Service must be obtained. |
| Making Off Without Payment | Section 3, Theft Act 1978 | The Departure (Running away) | Yes - Must leave without paying. |
Tips for Success in Paper 2
Step 1: Identify the Act. Is it a lie (Fraud s2), a service being used (Fraud s11), or a bill being dodged (Making Off)?
Step 2: Check the Intent. For Making Off Without Payment, remember that the defendant must intend to avoid payment permanently. If they leave their phone as "security" and say they are going to a cash machine, they might not have that intent!
Step 3: Define Dishonesty. Even though a specific "test" for dishonesty isn't named in your syllabus, you must always mention that the defendant’s state of mind was dishonest as part of the mens rea.
"Don't worry if this seems tricky at first! Just ask yourself: How did the person try to get something for nothing? The answer to that question will lead you to the right section of the law."