Fraud by False Representation

Fraud by false representation seems to be a very popular topic of conversation today, so I thought I'd delve a bit deeper into this particular offence.

Fraud by false representation is an offence under section 1(1) of the Fraud Act 2006.

Section 2(1) of the Act describes fraud by false representation in the following terms:

2(1) A person is in breach of this section (and so guilty of an offence under section 1) if he:

(a) dishonestly makes a false representation; and

(b) intends by making the representation:

(i)  to make a gain for himself; or

(ii) to cause loss to another or to expose another to the risk of loss.

In accordance with section 1(3) of the Act, the maximum sentence for fraud is 6 months' custody and/or an unlimited fine on summary conviction; 10 years' custody and/or an unlimited fine on conviction on indictment.

For fraud offences committed on or after 18th November 2024, the Magistrates' Court will be able to impose a maximum sentence of 12 months' custody.

Looking at section 2(1) we can see that the offence has the following actus reus:

• Make a representation;
• The representation is false;

and the following mens rea:

• Dishonesty;
• Knowledge that the representation is false, or might be;
• Intention to make gain for self, or loss for another, or expose another to loss.

The offence is only committed if all five elements are satisfied.

The test for dishonesty, as mentioned in my earlier theft article, is the two-stage Ivey test (Ivey v Genting Casinos [2017] 3 WLR 1212). A person is deemed to be acting dishonestly after consideration of the following: 

• What was the defendant's actual belief or knowledge about the facts? and 
• Was the defendant's conduct dishonest by the standards of ordinary decent people?

Section 2(2) of the Act states that a representation is false if:

• It is untrue or misleading; and
• The person making it knows it is, or might be, untrue or misleading.

Section 2(3) of the Act states that the representation may relate to:

• A fact;
• The law;
• The state of mind of the person making the representation, or any other person.

Section 2(4) of the Act states that the false representation may be express or implied.

Section 2(5) of the Act states that 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).

The upshot of section 2(5) is that a false representation can be made to a machine - e.g. typing someone else's PIN into a cash machine - and by submission only - e.g. sending a false representation electronically, even if it goes unread.

Section 5 of the Act further defines the terms "gain" and "loss", as being concerned with money or other property and being either temporary or permanent.

The whole premise of the offence is that the representation needs to be false. No offence is committed if the accused makes a representation that they wrongly believe is false - e.g. the defendant mistakenly claims that a vase is a worthless piece of tat, in the mistaken belief it is a priceless Ming vase, when actually it is a worthless piece of tat.

The offence is committed as soon as the false representation made, irrespective of whether any person is actually deceived.

Some classic law school examples of fraud by false representation:

• In DPP v Ray [1974] AC 370, the defendant and friends entered a restaurant with the intention of paying for their meals. However, on consuming the meal the defendant decided he was not going to pay for it. His manner was such that he looked like a genuine paying customer until the waiter's back was turned and then he fled the restaurant. The House of Lords held that when he entered the restaurant the customer made an honest representation of his willingness to pay. However, this became a false representation when he legged it without doing so.
• In the case of R v Lambie [1981] 2 All ER 776 the defendant continued to use her credit card despite knowing fine well she had exceeded her credit limit. The House of Lords held that her continued use falsely represented that she had authority to make the transactions.
• In Idrees v DPP [2011] EWHC 624 (Admin) the appellant paid someone else to sit his driving theory test. He made the false representation when he booked the test in his own name.

And finally the case everyone is wondering about today: Hypothetically speaking, could posting a false employment history on a LinkedIn page constitute fraud by false representation?

Well, if it is done dishonestly with the intention of making a gain for someone - perhaps by making them appear more employable; more electable; or more expert in their field than they really are - then yes, it could do.

I'll park that one there!