Fraud, Parties and Inchoate Offences

Section 1, Fraud Act 2006: creates a single general offence of fraud, which may be committed in three distinct ways.

Resist the temptation to think of sections 2, 3, and 4 as three separate offences. They are three modes of commission of the one offence in section 1 — false representation, failing to disclose information, and abuse of position. This matters practically: an indictment charges "fraud contrary to section 1," and the particulars simply specify which route the prosecution relies on. On conviction on indictment, the maximum sentence for the section 1 offence — whichever route is used — is 10 years' imprisonment or a fine, or both.

Because fraud is a conduct crime, all three routes share a structural feature: the prosecution never has to prove an actual gain or an actual loss. It only has to prove that the defendant acted with the intention of making a gain, causing a loss, or exposing another to a risk of loss.

This is the workhorse offence — the one that covers the fake invoice, the doctored CV, the false statement to an insurer.

A representation under section 2 is drawn broadly on three axes. It can be:

• express or implied — you don't need words; handing over a credit card implies a representation that you're entitled to use it;
• about fact, law, or state of mind — a representation about your own or someone else's state of mind counts (so lying about your intention to pay is a representation, not just a promise);
• made by words or by conduct — again, no verbal statement is required.

Source: Credit-cards by Lotus Head from Johannesburg, Gauteng, South Africa, CC BY-SA 2.5.

Section 2(2): a representation is false if it is untrue or misleading, and the person making it knows that it is, or might be, untrue or misleading.

That "might be" is doing real work — it lowers the fault threshold below actual knowledge of falsity to something closer to knowing recklessness about the representation's truth.

The offence then requires the classic Fraud Act mental trio, common to sections 2, 3, and 4:

1. dishonesty (tested under Ivey, below);
2. intention, by the representation, to make a gain for himself or another, cause loss to another, or expose another to a risk of loss.

Critically, section 2 does not require that anyone was actually deceived. A false representation submitted to a fraud-detection algorithm that instantly rejects it is still capable of being an offence — indeed, the Act expressly extends to a representation made to a machine, such as an ATM or automated online payment system, with no human dupe required at all. This is precisely why the Fraud Act replaced the old Theft Act deception offences, which had failed to keep up with automated commerce.

Section 3 punishes silence, but only where the law already required the defendant to speak. There is no free-standing duty to volunteer information to everyone you deal with — the offence bites only where a legal duty to disclose exists, and that duty can arise from:

• statute (a regulatory disclosure obligation);
• the express or implied terms of a contract; or
• the custom of a particular trade or market (insurance underwriting is the textbook example, where utmost good faith customs require disclosure of material facts).

Once that duty is established, the same intention-to-gain-or-cause-loss element from section 2 applies: the defendant must have intended, by the non-disclosure, to make a gain, cause a loss, or expose another to a risk of loss.

Section 4 is the insider's offence — designed for the employee, trustee, or agent who turns the trust placed in them against the person who placed it. It requires that the defendant occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person, and abuses that position.

Relationships capable of giving rise to a section 4 "position" include: employee and employer, trustee and beneficiary, and agent and principal.

The genuinely distinctive feature of section 4 is that it can be committed by omission as well as by a positive act — the financial adviser who simply fails to flag a conflict of interest they are duty-bound to disclose can abuse their position just as much as one who actively steers a client into a bad investment for a kickback.

Look at sections 2, 3, and 4 side by side and a common skeleton emerges:

That "gain or loss" element is itself defined and deliberately narrowed:

Section 5, Fraud Act 2006: gain and loss extend only to gain and loss in money or other property, and may be temporary or permanent.

So reputational or purely emotional harm falls outside the Act's gain/loss concept, but a gain need not be kept forever — borrowing property with intent to permanently deprive is not required here the way it is in theft; a temporary gain suffices.

Dishonesty runs through all three fraud routes, so getting the test right is not optional.

The test in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67 now governs dishonesty across criminal law, including fraud.

The test has two stages, but only one is subjective:

1. Stage one (subjective): ascertain the defendant's actual state of knowledge or belief as to the facts — what did this defendant actually know or believe was going on?
2. Stage two (objective): applying the standards of ordinary decent people, was the defendant's conduct dishonest, given that state of knowledge or belief?

The crucial point examiners will test you on: the second stage is purely objective. The defendant does not need to have realised that ordinary decent people would regard the conduct as dishonest. This is precisely where Ivey broke from the old R v Ghosh [1982] QB 1053 test, which had required the jury to find, additionally, that the defendant himself realised his conduct was dishonest by those standards. Ghosh's second limb let a defendant with warped personal values escape liability by genuinely — if unreasonably — believing his own conduct was fine. Ivey closed that door.

Although the Ivey dishonesty analysis was technically obiter (the case was a civil cheating-at-cards dispute), the Court of Appeal in R v Barton and Booth [2020] EWCA Crim 575 confirmed that Ivey — not Ghosh — is the correct test for dishonesty in criminal proceedings, putting the point beyond doubt for SQE1 purposes.

Beyond the section 1 core, the Act creates a cluster of related offences that examiners like to test for maximum-sentence recall and for spotting which offence fits a given fact pattern.

Obtaining services dishonestly (section 11) targets the person who dishonestly obtains a service — streaming access, a taxi ride, admission to an event — for himself or another, without payment being made in full or as required. It requires the defendant to have known the services were provided on the basis that payment had been, was being, or would be made, and to have intended that payment would not be made, or not made in full. Maximum sentence on indictment: 5 years.

Possession and supply of articles for fraud (sections 6–8) splits into two offences of different severity:

• Section 6 — simple possession of an article for use in connection with fraud: maximum 5 years.
• Section 7 — making, adapting, supplying, or offering to supply an article knowing it is designed or adapted for fraud, or intending it be used to commit or facilitate fraud: maximum 10 years. The supplier of a cloned-card skimming device is squarely caught here, and the higher sentence reflects that a supplier enables fraud at scale, not just for himself.
• Section 8 defines "article" broadly to include any program or data held in electronic form — malware, phishing kits, and stolen card-data files are all "articles" for this purpose.

Fraudulent trading (sections 9 and 10) deals with businesses run to defraud creditors:

• Section 9 creates a new offence for a sole trader or other non-corporate business knowingly party to carrying on a business with intent to defraud creditors (of any person) or for any other fraudulent purpose. Maximum: 10 years.
• Section 10 does not create a new offence — it simply raises the penalty for the pre-existing companies' fraudulent trading offence (now in the Companies Act 2006) to bring it into line, again to 10 years.

Not everyone in the dock committed the fraud with their own hands. A principal offender is the person whose own act or omission most directly causes the actus reus. Everyone else who contributes is a secondary party, and the law of secondary liability governs when their contribution attracts full criminal responsibility.

Section 8, Accessories and Abettors Act 1861: a person who aids, abets, counsels, or procures the commission of an indictable offence is liable to be tried and punished as a principal offender.

The four verbs are not synonyms — each captures a distinct kind of contribution, and examiners expect you to match facts to the right one:

• Aiding: giving help, support, or assistance to the principal at the time the offence is committed.
• Abetting: inciting or encouraging the principal at the time the offence is committed.
• Counselling: encouraging or advising the principal before the offence is committed.
• Procuring: causing or bringing about the commission of the offence.

Attorney-General's Reference (No 1 of 1975) [1975] QB 773: to procure means to produce by endeavour — you set out to bring the result about, and it happens because of what you did.

Beyond fitting the right verb, a secondary party must be shown to have done an act of assistance or encouragement, and — critically for mens rea — to have intended to assist or encourage the principal, while knowing the essential matters constituting the offence the principal was to commit.

Jogee and the end of parasitic accessory liability

For decades, a secondary party could be swept into liability for a crime he never intended, on foresight alone — the joint-enterprise doctrine of parasitic accessory liability. Before its abolition, if D2 foresaw that D1 might commit an offence beyond the plan, D2 could be convicted of that further offence merely because he foresaw the possibility.

R v Jogee; Ruddock v The Queen [2016] UKSC 8: abolished the doctrine of parasitic accessory liability in English and Welsh criminal law.

Source: Spinney Hill Park, Leicester - geograph.org.uk - 94064 by Kate Jewell, CC BY-SA 2.0.

After Jogee, foresight has been demoted from a conviction ticket to mere evidence: a secondary party's foresight that the principal might commit a further offence is evidence from which an intention to assist or encourage may be inferred, but it is not, by itself, sufficient to prove guilt. What must actually be proved is that the secondary party intended to assist or encourage the commission of the offence — and that intention can be conditional, formed in advance to cover whatever circumstances later arise (the getaway driver who intends to help "whatever happens inside" satisfies this even without knowing in advance exactly what will happen).

One further safety valve: a secondary party who withdraws unequivocally and in time, before the principal offence is committed, may have a defence — communication of withdrawal, not mere private regret, is what counts.

An "inchoate" offence punishes conduct on the road to a crime, even though the substantive crime is never completed. For SQE1, that means the law of criminal attempt under the Criminal Attempts Act 1981.

Section 1(1), Criminal Attempts Act 1981: a person is guilty of attempting to commit an offence if, with intent to commit that offence, he does an act which is more than merely preparatory to its commission.

Two structural boundaries matter before you even reach that test:

• Attempt can only be charged in relation to an indictable offence, including an either-way offence. There is no offence of attempting a summary-only offence.
• There is no offence of attempting to aid, abet, counsel, or procure an offence — attempt liability attaches to attempting the substantive crime itself, not to attempting to be someone else's accessory.

On mens rea, attempt is often more demanding than the completed offence: where the full offence requires proof of a specific consequence (murder being the classic example), the attempt requires proof that the defendant intended that consequence, even though the completed offence could be committed with mere recklessness as to it. There is no such thing as "attempted reckless murder."

Where does "merely preparatory" end?

This is the perennial exam battleground, and it is best learned through the leading quartet of cases, which trace a single line: has the defendant moved from getting ready to actually trying?

R v Gullefer [1990] 1 WLR 1063: an attempt begins only when the defendant's acts go beyond mere preparation and he embarks on the crime proper. Jumping onto a race track to have a race declared void (so as to reclaim a losing bet) was held to be merely preparatory — not yet an attempt at theft.

R v Jones (Kenneth) [1990] 1 WLR 1057: getting into the victim's car and pointing a loaded sawn-off shotgun at him was capable of amounting to an attempted murder, even though earlier steps — obtaining and loading the gun — had only been preparatory. The last act need not have been reached; the defendant need not, for instance, have removed the safety catch.

Source: Lupara by Bluedog, CC BY-SA 3.0.

R v Geddes [1996] Crim LR 894: being found in a school toilet in possession of a knife, rope, and tape was held merely preparatory to attempted false imprisonment — he had not yet approached or confronted any pupil.

The unifying test, drawn from Geddes, asks whether the defendant has actually tried to commit the offence, or has merely got ready, or put himself in a position, to do so. Read the trio together and the line becomes visible: Gullefer's defendant was still manoeuvring to create an opportunity; Jones's defendant had already confronted his victim with the means of the crime in hand; Geddes's defendant was equipped and present but had taken no step directed at any specific victim.

Attempting the impossible

Two further provisions handle attempts that could never in fact have succeeded:

Section 1(2), Criminal Attempts Act 1981: a person may be guilty of attempting an offence even though the facts are such that its commission is impossible.

Section 1(3): where a person's intention would not otherwise amount to an intent to commit an offence, he is treated as having had that intent if it would have amounted to it had the facts been as he believed them to be.

In other words, the law judges the attempt against the facts as the defendant believed them to be, not the facts as they actually were.

R v Shivpuri [1987] AC 1: confirmed that a defendant can be convicted of attempting the impossible where he believed the facts were such that the offence he intended was in fact possible — a defendant who imports what he believes to be prohibited drugs is guilty of attempted drug importation even if the substance turns out to be a harmless powder, because on the facts as he believed them, he was smuggling drugs.

For a client charged with attempting to obtain a gain through fraud that could never actually succeed — say, submitting a false representation to a system that would have caught it regardless — impossibility is no defence at all. The focus stays exactly where Shivpuri, Jones, and Geddes put it: what did the defendant believe, and had he moved from preparation into the crime proper.