Fraud by failure to disclose and abuse of position

The following Corporate Crime practice note provides comprehensive and up to date legal information covering:

  • Fraud by failure to disclose and abuse of position
  • Fraud by failure to disclose information while under a legal duty to do so
  • Defining what it means to cause a gain or a loss
  • Legal duty to disclose information to another
  • Fraud by abuse of position
  • Duty to safeguard
  • Abuse while occupying a position
  • Dishonesty and FrA 2006, ss 3 and 4
  • Jurisdiction
  • Sentencing for fraud by failure to disclose and abuse of position

Fraud by failure to disclose and abuse of position

Fraud by failure to disclose information while under a legal duty to do so

An offence of fraud by failure to disclose is committed where a defendant:

  1. failed to disclose information to another person while under a legal duty to do so and

  2. this failure is done dishonestly, and

  3. intended by the failure to make a gain or cause a loss

The elements of the offence in FrA 2006, s 3 must be read in conjunction with the offence creating provision in FrA 2006, s 1.

This means of committing the offence is focused on the defendant's conduct and intention and it is irrelevant whether anyone was deceived or if there is any actual loss or gain.

There is a degree of overlap with FrA 2006, s 2 offence as any incomplete disclosure of information may be a misleading representation. See further, Practice Note: Fraud by false representation.

Defining what it means to cause a gain or a loss

Gain and loss extends only to gain and loss in money or other property, whether temporary or permanent and means any property whether real or personal including things in action and other intangible property.

Gain includes a gain by keeping what one has, as well as a gain by getting what one does not have.

Gain does not include inducing a creditor to refrain

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