The Fraud Act 2006
Possession of articles for use in frauds (section 6)
This offence replaces the offence of going equipped in
s25 of the Theft Act 1968 as far as the use of articles
in connection with fraud is concerned. The new offence applies
where D is in possession of an article intended for use
in the course of or in connection with any fraud. Like its
predecessor, the section is drafted in general terms so
that a non specific intent to use the article in connection
with a fraud sometime in the future will suffice and the
intended use may be by someone other than D. ( See R v Ellames
[1974] )
Although the framers of the section thought that ‘articles’
is an ordinary word which requires no definition it was
thought helpful to include a provision making it clear that
the term includes ‘any program (sic) or data held
in electronic form’ (section 8).
The new offence carries a higher maximum penalty than the
s25 offence - 5 years’ imprisonment on conviction
under s6 on indictment compared to 3 years’ under
s25.
In addition, the ambit of the s6 offence is wider. It applies
to the possession of articles for use in the course of or
in connection with any offence of fraud whereas the s25
offence was limited to articles possessed by D and intended
for use in connection with an offence of obtaining property
by deception contrary to section 15 of the 1968 Act. The
possession of articles intended to be used to obtain services
by deception did not fall within s25.
Furthermore, s 25 did not apply to articles which D had
at his place of abode even if he intended to use them in
connection with a fraud at another location. There is no
equivalent limitation to the application of s6.
Note that it is still an offence contrary to s 25, when
not at one’s place of abode, to possess articles for
use in the course of or in connection with theft or burglary.
Making or supplying articles for use in frauds –
section 7
This offence – which attracts a maximum penalty of
ten years’ imprisonment on conviction on indictment
– is committed where D makes, adapts, supplies or
offers to supply any article knowing that it is designed
or adapted for use in the course of or in connection with
fraud, or intending it to be used to commit or assist in
the commission of fraud. The section is intended to apply
to, among others, the producers or suppliers of fake credit
cards, counterfeit currency or ‘black boxes’
designed to be attached to electricity meters to falsify
readings.
Obtaining services dishonestly – section 11
This offence replaces the offence of obtaining services
by deception contrary to s1 of the Theft Act 1978. It carries
a maximim penalty of 5 years’ on conviction on indictment.
In common with the old offence, s11 applies only to non
gratuitous services. Thus, it is not an offence under s11
to obtain a service unless the services were ‘made
available on the basis that payment has been, is being or
will be made for or in respect of them’ ( s11(2)(a).
The definition includes services provided to members of
a club who pay for membership rather than for the individual
services.
The s11 offence is broader than that under s1 of the 1978
Act to the extent that there is no requirement that the
services were obtained by deception. Indeed, there is no
need to prove that the services were obtained as a result
of any representation made by D. The section applies whether
or not a person is deceived. Helping oneself to a service
– by, for example, climbing over a wall to watch a
football match without paying the entrance fee – is
now an obtaining of services. In addition, the service need
not be provided directly by one person to another and so
a service obtained over the internet would be covered by
the section.
However, in one respect the new offence is narrower than
the old one. That is, under s1 it was not necessary to prove
that D intended to avoid payment. For example, D committed
an offence if, by falsely and dishonestly representing that
he had a valid driving licence, he was allowed to hire a
car, even if he intended to pay the hire charges. The new
offence would not be committed in such circumstances. Only
where D intends not to pay for the service as expected might
he be convicted of an offence contrary to s11. This means
that if D deceives a service provider to waive a fee that
is normally required no offence will be committed under
section 11. There will, however, ordinarily be liability
for an offence of fraud contrary to s1 of the Fraud Act
in such circumstances.
In general terms, where the service is obtained as a result
of a dishonest representation it will also be possible to
charge with an offence of fraud contrary to s1. And, as
fraud does not require an obtaining, a dishonest attempt
to secure a service might give rise to liability under s1
even where the attempt is unsuccesful.
[
This note was first published by University of London for
students on the LLB by External Study ]
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