Research Handbooks in Financial Law series
Edited by Barry Rider
Chapter 27: Fraud and restitution
The English Fraud Act 2006 usefully indicates that a person can be guilty of criminal fraud in three types of situation that reflect those that lead to various civil liabilities: (1) where the defendant makes a false representation, (2) where he fails to disclose information, and (3) where he abuses his position. For criminal liability subjective dishonesty is required: the accused must have been acting dishonestly according to the standards of ordinary decent people and must himself have realised that what he was doing was, by those standards, dishonest. For civil liability objective dishonesty can suffice, so that the defendant only needs to have been acting dishonestly according to the standards of ordinary decent people, though his conduct is assessed in the light of what he actually knew at the time when he acted. In the first situation a person is liable for fraud if he dishonestly made a false representation and intended thereby to make a gain for himself or another or to cause loss to another or to expose another to a risk of loss. A representation is false if it was untrue or misleading, and the representor knew that it was, or might be, untrue or misleading. A representation may be of fact or law or as to the state of mind of the representor or another person.
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