正在編輯用戶:Hinnia/Fraud （章節）

=== Actus reus – failure to disclose under a legal duty ===
Key elements:

* D '''fails to disclose information'''.
* D is under a '''legal duty''' (not merely moral) to disclose that information.

The Law Commission originally floated the idea of a '''moral duty''', but the '''Home Office Fraud Law Reform (2004)''' rejected this for two reasons:

# Moral duty is too '''ambiguous'''.
# Criminal law should not intrude too far on the '''caveat emptor''' principle.

The criminal law '''will not invent ad hoc legal duties''' solely to secure conviction under s 3. This is contrasted with '''gross negligence manslaughter''', where criminal law does sometimes create duties of care beyond civil law (e.g. ''Willoughby'').

Sources of a '''legal duty to disclose''' may include:

* Statute
* Contracts of '''utmost good faith''' (e.g. insurance)
* Express or implied terms of a contract
* '''Fiduciary relationships''' (trustee, agent, etc.)

Case illustrations:

* '''Razoq'''  EWCA Crim 674
** NHS doctor signed up with a locum agency; contract expressly required that any '''disciplinary proceedings''' be reported to the agency.
** Court held: he was '''under a legal duty''' to disclose those proceedings.
* '''Mashta'''  EWCA Crim 2595
** D receiving asylum support on grounds of destitution then gained employment.
** Charged with fraud by failing to disclose employment; appeal against sentence partly allowed.
** Confirms that statutory or contractual schemes can impose '''clear legal duties''' to disclose.
* '''White'''  EWCA Crim 714
** D applied for a mortgage. He was not under a legal duty to disclose unemployment '''where the application did not require it'''.
** No s 3 duty to disclose; but he could still have committed fraud by '''false representation''' under s 2 if he lied.
* '''Forrest and others'''  EWCA Crim 308
** Pitchford LJ emphasised:
*** Not every false representation gives rise to liability under s 3.
*** There is a risk of '''overlap''' between s 2 (false representation) and s 3 (failure to disclose), but courts will not lightly find an implied duty to disclose.
* '''D'''  EWCA Crim 209
** D paid council tax at a discounted rate on the basis she did '''not''' reside at the property. The council alleged she later moved back without notifying them, while continuing to pay at reduced rate.
** Court of Appeal:
*** Expressed surprise there was no statutory duty to notify changed residence, but held there was in fact '''no such legal duty'''.
*** Distinction drawn between '''liability to pay''' and '''liability to notify'''.
*** Council could recover money civilly, but absence of a specific duty to notify meant no s 3 offence.

'''Exam point:''' For s 3 always ask:

* What is the '''source''' of a legal duty to disclose?
* If none (statute, contract, fiduciary, etc.), there is '''no s 3 offence''', though s 2 may still apply if false statements are made.