Proof of Possession (Falling Book 8)
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Section 9 3 c refers to section 1 of the Companies Act which exempts certain types of bodies from fraudulent trading. That exemption also applies to section 9. The only exemption likely to concern prosecutors is that in section 2 b. This offence replaces obtaining services by deception in Section 1 of the Theft Act which is repealed by the Act. The defendant must have the necessary intention at the time that the service is obtained section 11 2 c.
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In many cases, the defendant will also have committed an offence under Section 2 of the Act by making a false representation that payment will be made or made in full. Prosecutors must decide which offence better reflects the criminality involved. The maximum sentence for the Section 11 offence is five years' imprisonment. This section repeats the effect of Section 18 of the Theft Act It provides that company officers who are party to the commission of an offence by the company will be liable to be charged with the offence as well as the company.
Section 2 2 defines the meaning of "false" and Section 2 3 defines the meaning of "representation". A "representation" means any representation as to fact or law, including a representation as to the state of mind of the person making the representation or any other person Section 2 3.
An example of the latter might be where a defendant claims that a third party intends to carry out a certain course of action perhaps to make a will in someone's favour. It may be difficult to prove to the necessary standard that the Defendant knew the state of mind of a third party, but easier to prove that he knew what it might be. A representation may be express or implied Section 2 4.
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It can be stated in words or communicated by conduct. There is no limitation on the way in which the representation may be expressed. A representation can be made by omission, for example, by omitting to mention previous convictions or County Court Judgements on an application form.
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An offence may be completed when the defendant fails to correct a false impression after a change in circumstances from the original representation if the representation may be regarded as a continuing series of representations. A representation can be made to a machine Section 2 5 , for example, where a person enters a number into a CHIP and PIN machine or a bank ATM; or gives false credit card details to the voice activated software on a telephone line; or gives false credit card details to a supermarket website to obtain groceries.
Evidence is necessary to prove that the defendant communicated the false representation to a person or to a machine. It is not relevant whether the false representation is believed or has any affect on any other person. In some cases it will not be necessary to call evidence from a victim, but prosecutors should bear in mind that a victim who is not named on an indictment or in a TIC cannot be compensated.
A representation is defined as "false" if it is untrue or misleading and the person making it knows that it is, or might be, untrue or misleading. Actual knowledge that the representation might be untrue is required not awareness of a risk that it might be untrue. The question of dishonesty' is one for the jury and submissions of no case to answer should not be acceded to based only on the issue of dishonesty.
The definition is essentially the same as in Section 34 of the Theft Act. Gain and loss extends only to gain and loss in money or other property Section 5 2 a , whether temporary or permanent Section 5 2 b and means any property whether real or personal including things in action and other intangible property Section 5 2 b. The Defendant must intend to make the gain or cause the loss by means of the false representation. The breadth of conduct to which Section 2 applies is much wider than the old Theft Act deception offences because no gain or loss need actually be made.
It is the Defendant's ultimate intention that matters. If the Defendant gets information by making a false representation, intending ultimately to make a gain or cause a loss within the meaning of Section 5 by doing so, he will have committed a Section 2 offence. There is no requirement that the failure to disclose must relate to "material" or "relevant "information, nor is there any de minimis provision. Under such circumstances the Defendant would have to rely on the absence of dishonesty.
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Such cases can be prosecuted under the Act if the public interest requires it, though such cases will be unusual. It is no defence that the Defendant was ignorant of the existence of the duty, neither is it a defence in itself to claim inadvertence or incompetence. In that respect, the offence is one of strict liability. The defence must rely on an absence of dishonesty and the burden, of course, lies with the prosecutor. Prosecutors must be acutely aware of the public interest in such cases, bear in mind the relative standing of the parties and pay particular regard to any explanation for the failure given by the Defendant.
In its report on fraud No. Such a duty may derive from statute such as the provisions governing company prospectuses , from the fact that the transaction in question is one of the utmost good faith such as a contract of insurance , from the express or implied terms of a contract, from the custom of a particular trade or market, or from the existence of a fiduciary relationship between the parties such as that of agent and principal.
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For example, a person in a fiduciary position has a duty to disclose material information when entering into a contract with his or her beneficiary, in the sense that a failure to make such disclosure will entitle the beneficiary to rescind the contract and to reclaim any property transferred under it. The Explanatory Notes to the Fraud Act provide the following examples of a breach of a legal duty:.
The "position" required by section 4 is one that may be described as a position of trust. It could include company directors, trustees, business partners or employees.
In many cases it will be one where there is a legal 'fiduciary' duty; but such a duty is not essential. It is, however, a position that carries something more than a moral obligation. It may arise otherwise, for example within a family, or in the context of voluntary work, or in any context where the parties are not at arm's length. In nearly all cases where it arises, it will be recognised by the civil law as importing fiduciary duties, and any relationship that is so recognised will suffice.
We see no reason, however, why the existence of such duties should be essential.
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This does not, of course, mean that it would be entirely a matter for the fact finders whether the necessary relationship exists. The question whether the particular facts alleged can properly be described as giving rise to that relationship will be an issue capable of being ruled on by the judge and, if the case goes to the jury, of being the subject of directions. The terms "financial interests" and "abuse" are not defined in the Act and so may be taken to have their ordinary meaning.
Note that the section refers to a person who "occupies a position in which he is expected The person who no longer occupies that position when, for example, he uses information properly gained while "in post" dishonestly, does not commit an offence. He may do so if there is a contractual obligation that extends beyond his departure from the post.
He will, however, be guilty of an offence if he took steps to plan his actions while "in post" and put the plan into action after leaving the post or after the relationship ceased. For example, an employee who transferred sensitive commercial information from his office laptop to his home computer while in employment and used it after that employment had ended will commit the offence. At that stage he will no longer be "occupying a position " but he was when the offence was committed transferring the information intending to make a gain or cause a loss and so can be prosecuted.
In these circumstances prosecutors must be particularly mindful that the criminal law is not invoked by complainants for purely commercial purposes. It is probable that the case law on possession of drugs will apply. The phrase "possession or control" suggests something looser than the absolute "possession" in the Proceeds of Crime Act Under that Act "possession" means having physical custody of criminal property. Section 37 3 of the Misuse of Drugs Act provides that for the purposes of that Act "the things which a person has in his possession shall be taken to include anything subject to his control which is in the custody of another".
Although the Fraud Act does not contain a similar section, the reference to "control" suggests that items in the possession of others but over which the Defendant retains control would qualify as being in the defendant's "possession". For the law on what constitutes "possession" and "control" in drugs cases refer to Archbold , to The law on possession of indecent images will also apply particularly to the possession of software and material stored on computers for use in fraud covered by virtue of section 8.
Prosecutors should bear in mind the judgement of the Court of Appeal in R v Porter  EWCA Crim , in which it was held that an image and, by analogy, a document will only be considered to be in the possession of the defendant in the sense of custody or control if it is accessible to him.
In the case of a deleted image, where the Defendant could not retrieve or gain access to it he would no longer have custody or control of it. It follows that it would not be appropriate to say that a person who could not retrieve and image or document from a hard disk drive would be in possession of the image by reason of his possession of the hard disk drive itself. In cases where the prosecution will rely on evidence of material stored on computers, it will be necessary to obtain expert evidence as in cases involving indecent images. It is extremely wide covering anything from pen and paper to blank credit cards, credit card numbers and sophisticated computer programmes.
Section 8 provides further definition of the term "article". For the purposes of Sections 6 and 7 and the provisions listed in Section 8 2 which include Section 1 7 b of the Police and Criminal Evidence Act "prohibited articles" for the purposes of stop and search powers "article" includes any program or data held in electronic form. If a successful Section 2 fraudster has succeeded in obtaining information held either as hard copy or in data form from those he has duped, he will also be guilty of a Section 6 offence in relation to that information. In respect of the definition of services see Archbold , The service must be provided on the basis that it will be paid for.
The same restrictions will therefore apply to the obtaining of banking services under this section as before they must be chargeable to fall within the ambit of Section 11 R v Sofroniou  EWCA Crim If the banking services obtained are free, Section 11 cannot be charged.