Research Handbooks in Financial Law series
Edited by Barry Rider
Chapter 2: The concept of fraud: a comparative analysis
The quest to postulate a general definition of fraud may seem utopian. Therefore, when McGrath states that fraud is ‘notoriously difficult to define’ he is expressing pervading sentiment in the literature. One reason is that fraud has tentacles in both civil and criminal jurisdictions under English law, thus making it difficult to couch an all-embracive definition. The evolution of the concept has also been coarse. Although essentially a criminal concept, the Court of Equity principally administered fraud. Moreover, prior to the passing of the Fraud Act 2006 ‘fraud’ was not an offence in England. Thus there was no categorical statutory or judicial definition of fraud in either the criminal or the civil jurisdictions. The preponderance of synonyms in describing fraud is another feature that makes it difficult to define it. Fraud has, among others, been described as ‘white collar crime’,‘financial crime’, ‘economic crime’,‘deceit’,‘forgery’,‘dishonesty’. Some in the judiciary recognised this difficulty and suggested that courts were not to ‘cramp themselves … with a hard and fast definition’. The connection between definition and practical application has been encapsulated in the statement that fraud‘… is the elephant easy to recognise, but difficult to define, and a jury is well able to recognise it, even though they could not define it’. Fraud is a universal phenomenon: it is found across nations and cultures. This chapter presents a brief comparative overview of the concept. The reader is thus referred to relevant sources for detailed discussions.
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