Fraud by failure to disclose and abuse of position
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
  • Abuse whilst 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 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

This 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.

The information which is withheld may be trivial or may be only a part of a large volume of material which is disclosed. The offence is committed if any information is not disclosed with the required mental element.

Inadvertence, incompetence or ignorance of a legal duty are not defences to this offence. In these circumstances the defence available is that of no dishonesty. These factors highlight the importance of any comment made or statement provided at interview explaining a client's lack of dishonesty in their failure to disclose. This explanation should be reinforced in any letter of representation sent to the prosecutor so that any potential charge arising from the failure to disclose could be averted.

There is a degree of overlap with the Fraud Act 2006, s 2 (FrA 2006) as any incomplete disclosure of information may be a

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