A blow for clarity within the criminal law has finally been struck by the Fraud Act 2006. This came into force on January 15 2007, heralding sweeping reform of offences that previously stood under The Theft Act’s 1968 and 1978. The new Act has abolished and replaced many of the previous deception offences including (under the 1968 Act) obtaining property by deception, obtaining a pecuniary advantage, obtaining a pecuniary advantage by deception and procuring the execution of a valuable security by deception. In turn, The Theft Act 1978 has had the offences of obtaining services by deception and the evasion of liability to make a payment abolished from its remit. In return, a single and comprehensive catalogue of offences has been created that can be summarised as follows.
Under section 1 of the new Act, a person is criminally liable if they breach any of the stipulations that are set down under subsection 2, namely fraud by false representation, fraud by failing to disclose information and fraud by abuse of position. These three categories have been ingeniously designed so that they are generic enough to contain, within their ambit, all of the above mentioned offences that were previously contained within the remit of the Theft Acts.
A further sweeping reform has been made in relation to internet fraud, and in particular the peddling of false information that has been created with the intention of making a gain or conversely causing a victim to suffer financial loss. An example of this would be where the victim is sent false information which requests their bank account details. Previously this would have had to have led to a loss for the victim or a gain for the perpetrator in order for a prosecution to hold up. Under this new legislation the criminal acts rests upon the use of false information whether or not it leads to a gain. It is necessary, however, to show that there was an intention to make a material gain, but given the nature of such representations, this in itself would be easily derived from the facts surrounding the nature of the deception and as such, a previous gap in the law has now been firmly closed!
The above is hot on the heels of reform that has been introduced concerning credit card fraud with particular regard to chip and pin. The stipulations of the old Theft Act made it clear that a deception must be practised on a human being, which for example, using a forged signature in a shop would allow for. However, with the advent of chip and pin such a deception would now essentially take place on a machine which is programmed to accept or decline and therefore the previous legislation was not wide enough to deal efficiently with this. As such, the new legislation has been designed to cope with this and where a defendant enters the pin number of another for the purpose of gain, they are liable under section 1 for breaching section 2 of the Act.
All in all it is refreshing to see that at least some parts of the law are keeping pace with technology…at least for now!