Father Figure

By 12 May 2017Z UNCATEGORISED
Father Figure

Father Figure (±x)

Published on 12 May 2017
Joseph-S-R-de-Saram

Joseph S R de Saram (JSRDS)

Information Security Architect / Intelligence Analyst / Computer Scientist / Human Rights Activist / COMSEC / SIGINT / TSCM
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Daddy Uncool

The “12/17 Fraud” perpetrated by Edward Marcion Ranjit de Saram (EDS on 17 December 2015) a UK Citizen (by Naturalisation) and various UK-associated parties, is the single most destructive event of my entire life.

I say ‘is‘ rather than ‘has been‘ because its sequelae and losses flowing directly from it is still ongoing. Despite my intellect, 500 days on I am struggling to ‘pick up the pieces’.

Virtually every aspect of the events of mid-2015 onwards exceed the burden of proof required for criminal fraud and EDS in particular demonstrated continual disregard for laws everywhere as well as abuse of my Fundamental Human Rights.

And when the physical injuries are inflicted upon me, those take time to heal and delay my progress continually in judicial proceedings. Despite the obviously external factors I am then blamed as usual…

Actually the earlier event was the theft of data by JV Lasantha Priyadarshana and his associates the Melbourne Fraudsters in December 2014, another event also linked to EDS on 13 December 2014 because EDS turned up to Sri Lanka and made a nuisance of himself then as well. And the incitement of violence against me by those and associated foreign parties which I also identified early, is how the situation began.

And then if we consider that which I was even doing in Sri Lanka in the first place when Shihara the Owl Cat and I had been having a great time in Singapore from 2010, it was the heart attack caused by EDS on 18 May 2013 that overwhelmed me after a data loss and shoulder dislocation a few months prior, that forced me to move around June 2013.

Papa Don't Preach, about Surveillance

My extremely early identification of issues in terms of overt/covert/harassment surveillance, psychotronic weapons, cellular interception and gps jamming (which I communicated to various parties) was conveniently forgotten about and/or deliberately misinterpreted by EDS et al.

Apparently I am Paranoid 🙂

EDS and PDS came after my Staged Road Traffic Accident. I have no idea why neither of them have ever visited me in the Coronary Care Unit of Asiri Surgical Hospital despite me being there numerous times after heart attacks.

EDS’ behaviour was incredibly irritating in the way that he continually tried to debunk that which Adrian Cumine (“the Cat”) and I were saying, despite Adrian’s WireShark logs as well as Cell Map data.

I knew that something was up and I dreaded what would happen next. In fact when the pair of them were leaving EDS allegedly threatened Chamaree Silva and for some reason she turned on me and grabbed me by the neck – that is another episode which is relevant to the fraud and is also relevant to the Melbourne Fraudsters because the exact incident with Silva ended up in Margaret Cunniffe’s Defence in the Supreme Court Matter in Melbourne!! Another one of the many McDonald Slater & Lay Constructs…

"I am Your Father", Unfortunately for Joe​

I am really not sure what Luke Skywalker was complaining about – I wish I had a dad like Darth Vader because he’s really kind. He only cut Luke’s arm off with his light sabre whereas I had my neck smashed along with my face, was kidnapped and unlawfully imprisoned, and my evidentiary material for defences and counterclaims were stolen. And don’t forget Shihara the Owl Droid was poisoned twice and EDS caused the Heart Attack on 18 May 2013!

Honour Based Violence

However as I have mentioned in the following article, Asians who have been brought up in Asia have a tendency to suffer from serious psychological deficiencies. Asians who have had their formative years in the US or UK do not seem to have this problem.

For first generation Asians either born in the UK or having migrated it is literally a living hell because their parents’ formative years have been in Asia.

Munchausen Syndrome by Proxy

The UK Fraud Act 2006

As I am well past the point of no return, counsel is being instructed in relation to a Private Prosecution in relation to Fraud and a whole host of other nonsense over the 45yrs that I have had the misfortune to know him.

The Offences

Section 1 creates a general offence of fraud and introduces three ways of committing it set out in Sections 2, 3 and 4. 

  • Fraud by false representation (Section 2); 
  • Fraud by failure to disclose information when there is a legal duty to do so (Section 3); and 
  • Fraud by abuse of position (Section 4).

In each case: 

  • the defendant’s conduct must be dishonest; 
  • his/her intention must be to make a gain; or cause a loss or the risk of a loss to another. 
  • No gain or loss needs actually to have been made. 
  • The maximum sentence is 10 years’ imprisonment.

Fraud by false representation (Section 2)

The defendant: 

  • made a false representation 

EDS INFORMED ASSOCIATES OF HIS AND MINE THAT I HAD A PSCYHOLOGICAL PROBLEM, INCLUDING BUT NOT LIMITED TO THE POLICE AS WELL AS MEDICAL PROFESSIONALS AND LAWYERS WHO WOULD THEN INVOLVE THEMSELVES AGAINST ME.

  • dishonestly 

I DID NOT HAVE A PSYCHOLOGICAL PROBLEM YET THE LAWYER’S CONSTRUCT WAS THAT I WAS SO EDS PROPAGATED THAT.

  • knowing that the representation was or might be untrue or misleading 

EDS CONFIRMING ABOUT THE ‘LAWS OF THE LAND’ AND DESCRIBING SYMPTOMS OF SCHIZOPHRENIA WHICH HE HAD FABRICATED HIMSELF BY INTENTIONALLY INFLICTED EMOTIONAL DISTRESS. HIS CONVERSATIONS WITH NEWTON RANASINGHE CONFIRM THE TRUE POSITION.

The defendant: 

  • made a false representation 

EDS INFORMED ASSOCIATES OF HIS AND MINE THAT I HAD A PSCYHOLOGICAL PROBLEM, INCLUDING BUT NOT LIMITED TO THE POLICE AS WELL AS MEDICAL PROFESSIONALS AND LAWYERS WHO WOULD THEN INVOLVE THEMSELVES AGAINST ME.

  • dishonestly 

I DID NOT HAVE A PSYCHOLOGICAL PROBLEM YET THE LAWYER’S CONSTRUCT WAS THAT I WAS SO EDS PROPAGATED THAT.

  • knowing that the representation was or might be untrue or misleading 

EDS CONFIRMING ABOUT THE ‘LAWS OF THE LAND’ AND DESCRIBING SYMPTOMS OF SCHIZOPHRENIA WHICH HE HAD FABRICATED HIMSELF BY INTENTIONALLY INFLICTED EMOTIONAL DISTRESS. HIS CONVERSATIONS WITH NEWTON RANASINGHE CONFIRM THE TRUE POSITION.

Per Legem Terrae

The phrase 'per legem terrae', equivalent to 'by the laws of the land', refers to 'the law in force in a country or region'. 1215 AD In the year 1215,...

 

  • with intent to make a gain for himself or another, to cause loss to another or to expose another to risk of loss.

EDS REQUIRED VALIDATION FROM THIRD PARTIES AND TO PREVENT ME FROM SUING HIM, WHICH IS HIS GAIN. THE LOSS THAT WAS INFLICTED ON ME WAS PHYSICAL AND PSYCHOLOGICAL INJURIES AS WELL AS PERVERSION OF THE COURSE OF JUSTICE BY THE SPOLIATION OF EVIDENTIARY MATERIALS REQUIRED IN JUDICIAL PROCEEDINGS. THE PRIMARY MOTIVE WAS TO OBTAIN LEGAL GUARDIANSHIP OF ME VIA HIS FRAUD. THIS IS RERFERRED TO IN THE NEWTON RANASINGHE CONVERSATION.

The offence is entirely focused on the conduct of the defendant.

Fraud by failing to disclose information (Section 3)

The defendant: 

  • failed to disclose information to another person 

EDS FAILED TO DISCLOSE THAT HE HAD ALREADY BEEN INFORMED THAT WHICH HE WAS PROPOSING WAS UNLAWFUL, AND WAS TANTAMOUNT TO AGGRAVATED KIDNAP AND UNLAWFUL IMPRISONMENT. EDS FAILED TO DISCLOSE HIS TRUE INTENTIONS TO ME WHEN GAINING ACCESS TO MY PROPERTY. EDS FAILED TO DISCLOSE THAT THE SYMPTOMS OF SCHIZOPHRENIA WERE FABRICATED BY HIM USING IIED. EDS FAILED TO DISCLOSE THAT I HAVE NEVER SUFFERED FROM SCHIZOPHRENIA AND IT WAS SIMPLY ANOTHER OF THIS FRAUDS IN RELATION TO THE UK DTI AND ILMET (IN LIQUIDATION)

  • when he was under a legal duty to disclose that information

EDS HAD A LEGAL DUTY TO PROVIDE FULL AND FRANK DISCLOSURE WHEN MAKING STATEMENTS TO THE POLICE AS WELL AS MEDICAL PROFESSIONALS WHO HE WAS LINING UP TO TREAT ME.

  • dishonestly intending, by that failure, to make a gain or cause a loss.

EDS INTENDED DISHONESTLY TO MISLEAD ALL PARTIES SO THAT HIS SICK AGENDA COULD BE EFFECT, ENABLING HIM TO EVADE CRIMINAL CULPABILITY FOR VARIOUS FRAUDS – THIS IS HIS GAIN. THE LOSS WAS SUSTAINED BY ME OF COURSE AND RHODIUM ENTITIES GLOBALLY.

Like Section 2 (and Section 4) this offence is entirely offender focussed. It is complete as soon as the Defendant fails to disclose information provided he was under a legal duty to do so, and that it was done with the necessary dishonest intent. It differs from the deception offences in that it is immaterial whether or not any one is deceived or any property actually gained or lost.

Fraud by abuse of position (Section 4)

The defendant: 

  • occupies a position in which he was expected to safeguard, or not to act against, the financial interests of another person 

EDS’S EARLIER FRAUD FACILITATED HIS LEGAL GUARDIANSHIP OVER ME, MY ASSETS AND RHODIUM’S ASSETS. HE FRAUDULENTLY OBTAINED FOR HIMSELF A FIDUCIARY ROLE.

This is actually contained in the audio from 12 December 2015 between EDS and Newton Ranasinghe

NR – “Yes, but they will be supported by the police, yeah we don’t know, this is what we have to know… because he is the one that is ultimately reponsible for those people in the country.. he will write it down and tell you… but if you are not there who can give that support in terms of guardianship, you’ll need to sign in advance and give him.

  • abused that position 

EDS FACILITATED THE MASSIVE REDUCTION IN THE PROPERTY’S SECURITY POISE, FACILITATED THE THEFT OF EVIDENTIARY MATERIALS, CAUSED MASSIVE FINANCIAL LOSSES, PERVERTED THE COURSE OF JUSTICE BY PREVENTING ME FROM CONTINUING JUDICIAL PROCEEDINGS PRIMARILY BY THE THEFT AND DESTRUCTION OF EVIDENCE AS WELL AS QUESTION MY MENTAL CAPACITY WHICH WOULD RESTRICT MY ABILITY TO OBTAIN LEGAL COUNSEL.

  • dishonestly 

EDS KNEW THAT I WAS NOT PSYCHOLOGICALLY DEFICIENT, AND HIS AGGRAVATED KIDNAPPING OF ME AND UNLAWFUL IMPRISONMENT FACILITATED THE ROLE OF LEGAL GUARDIAN.

  • intending by that abuse to make a gain/cause a loss

EDS NEEDED ME OUT OF THE PROPERTY TO INFLICT FURTHER FRAUDS, AND HIS BEHAVIOUR REFERENCED BY VIDEO AND AUDIO EVIDENCE CONFIRMS ‘HIS DEPRAVITY OF MIND’.

The abuse may consist of an omission rather than an act.

Like the other two Section 1 offences, Section 4 is entirely offender focused. It is complete once the Defendant carries out the act that is the abuse of his position. It is immaterial whether or not he is successful in his enterprise and whether or not any gain or loss is actually made.

As with all the Section 1 offences, though there need be no consequences to the offending, the existence and extent of those consequences will be very material to sentence, compensation and confiscation. It will still therefore be necessary to gather that evidence. In many instances it is the fact of the gain or loss that will prove the Defendant’s dishonesty beyond reasonable doubt.

Possession of articles for use in fraud (Section 6)

The defendant: 

  • had possession or control of;
  • an article;
  • for use in the course of or in connection with any fraud.

EDS GRABBED THE KEYS OF MY PROPERTY AND HANDED THEM TO AN UNKNOWN INDIVIDUAL WITHOUT A WORD BEING SPOKEN. ADDITIONALLY BECAUSE OF EDS SMASHING DOWN THE FRONT DOOR, THE LOCKS WOULD NOW HAVE NEEDED TO BE CHANGED. THE ARTICLES ARE IN FACT ‘KEYS’. ADDITIONALLY EDS FACILITATED THE USE OF ‘PASSWORDS’ WHICH WERE ON PIECES OF A4 AROUND THE HOUSE. BOTH THE KEYS AND THE PASSWORDS WERE USED TO COMPROMISE BOTH PHYSICAL AND LOGICAL SECURITY. THE FRAUD WAS THE PERVERSION OF THE COURSE OF JUSTICE AND THE UNLAWFUL ACCESS TO MY PROPERTY VIA DEFICIENT WARRANTS OF SEARCH & SEIZURE, OR IN THE ALTERNATIVE TO BYPASS THE NEED TO LAWFUL SEARCH & SEIZURE WARRANTS BY MY ABSENCE.

The wording draws on Section 25 of the Theft Act 1968. The proof required is that the Defendant had the article for the purpose or with the intention that it be used in the course of or in connection with an offence. A general intention that he or another will commit fraud (meaning an offence under Sections 1-4 of the Act) will suffice. In R v Ellames 60 Cr App R. 7 (CA) the Court of Appeal said:

“In our view, to establish an offence under Section 25 (1) the prosecution must prove that the Defendant was in possession of the article, and intended the article to be used in the course of or in connection with some future burglary, theft or cheat. But it is not necessary to prove that he intended it to be used in the course of or in connection with any specific burglary, theft or cheat; it is enough to prove a general intention to use it for some burglary, theft or cheat; we think that this view is supported by the use of the word “any” in Section 25 (1). Nor, in our view, is it necessary to provide that the defendant intended to use it himself; it will be enough to prove that he had it with him with the intention that it should be used by someone else.”

Section 6 will apply in any case where “Going equipped to cheat” would previously have been charged.

The principal distinction between Section 25 and Section 6 is that Section 6 does not require the defendant to be away from his place of abode.

There is no defence of “reasonable excuse”. Those who are, in particular, properly in possession of or involved in the development of computer software or other items for use to test the security of computer or security systems must rely on their lack of intention that the items or programmes are “for use in the course of or in connection with any fraud.” Prosecutors will be alert to such circumstances and the possible abuses.

Making or supplying articles for use in frauds (Section 7)

The defendant: 

  • makes, adapts, supplies or offers to supply any article;

EDS SUPPLIED THE KEYS TO MY PROPERTY TO THE UNKNOWN INDIVIDUAL WHICH FACILITATED EASY ACCESS TO THE PROPERTY AND ITS CONTENTS.

  • for use in the course of or in connection with fraud;

EDS HAD PREVIOUSLY PUT THE KEYS OUTSIDE IN FLOWER POTS AND THE DRIVEWAY, AND NEAR THE GATE FOR KSA PERERA THEREBY FACILITATING THE PLANTING AS WELL AS THEFT OF EVIDENTIARY MATERIALS.

  • knowing that it is designed or adapted for use in the course of or in connection with fraud (Section 7 (1) (a)) or

EDS’ USE OF THE KEY ENABLED THE ITEMS TO BE STOLEN WITHOUT HAVING TO PHYSICALLY DAMAGE THE PROPERTY.

  • intending it to be used to commit or assist in the commission of fraud (Section 7 (1) (b).

EDS PUTTING THE KEYS IN CERTAIN AREAS OUTSIDE AND DRAWING THE ATTENTION OF KSA PERERA TO THEM CONFIRMS INTENT.

“Knowledge” in Section 7 (1) (a) is a strict mens rea requirement. The House of Lords in Montila [2004] UKHL 50 said:

“A person may have reasonable grounds to suspect that property is one thing (A) when in fact it is something different (B). But that is not so when the question is what a person knows. A person cannot know that something is A when in fact it is B. The proposition that a person knows that something is A is based on the premise that it is true that it is A. The fact that the property is A provides the starting point. Then there is the question whether the person knows that the property is A.”

In practice, the use to which the article can be put is likely to provide sufficient evidence of the defendant’s state of mind. For example, articles such as: 

  • the kits that are attached to ATM machines to capture card details; 
  • forged credit cards or the equipment for making them; 
  • lists of credit card numbers; 
  • counterfeit goods presented as genuine;
  • do not have an innocent purpose that readily springs to mind.

A person who makes an article specifically for use in fraud, for example, a software programme to create a phishing website or send phishing email, may be ambivalent about whether the person to whom it is supplied actually uses it for fraud. He will fall foul of Section 7 (1) (a) but will not have the necessary intention for Section 7 (1) (b).

The manufacturer of articles that are capable of being used in or in connection with fraud but have other innocent uses will not fall foul of this section unless he intends that it should be used in a dishonest way (Section 7 (1) (b)). The makers of credit card readers are one example. The readers have an innocent purpose they are commonly used by traders who “store up” the details of all the transactions carried out during a day and submit them all together at the end of the day. The card reader merely verifies the validity of the card at the point when it is read and stores all the necessary information about the transaction. The other, dishonest, use is by point of sale staff who use the readers to “skim” credit card details either for use or sale. The dishonest manufacturer who intended a dishonest use would be guilty of Section 7 (1) (b) offence.

Participation by sole trader in fraudulent business (Section 9)

Section 9 makes it an offence for a person knowingly to be a party to the carrying on of a fraudulent business where the business is not carried on by a company. The offence parallels the offence of fraudulent trading in section 458 of the Companies Act 1985.

Non-corporate traders covered by the new offence include sole traders, partnerships, trusts and companies registered overseas.

A defendant may commit an offence under Section 9 (2) (b) in the following ways: 

  • knowingly being party to the carrying on of a company’s business;
  • with intent to defraud creditors of any person; or 
  • for any other fraudulent purpose.

EDS WEAKENED THE SECURITY POISE OF MY HOUSE AND ACCESSED MY ACCOUNTING AND FINANCIAL INFORMATION, WHICH WAS NEEDED BY ME TO REGULARISE THE POSITION WITH VARIOUS CREDITORS AND TO OBTAIN MONIES FROM DEBTORS. IT WOULD BE VERY EASY FOR CREDITORS TO CLAIM THAT I HAD DEFRAUDED THEM BECAUSE AFTER THE THEFT OF THE ACCOUNTING PAPERWORK I DO NOT KNOW THE FINANCIAL POSITION. AS SUCH SHOULD I THEN SETTLE AMOUNTS IT WILL BE I THAT HAS A WORSENED POSITION BECAUSE I DO NOT KNOW THE AMOUNTS OF LEGAL SET-OFFS AND COUNTERCLAIMS AGAINST THE CREDITORS. THE FRAUD EDS HAS RUN IS TO CREATE THE APPEARANCE THAT I HAVE DEFRAUDED PEOPLE. I CANNOT CONFIRM THE ASSET OR INCOME POSITION PRESENTLY THANKS TO HIS FRAUD.

The phrase “to defraud creditors of any person” covers the situation where creditors are creditors of the business, but the business is not a legal person. The creditors could be creditors of individuals or of other related companies.

The term “fraudulent purpose” connotes an intention to go “beyond the bounds of what ordinary decent people engaged in business would regard as honest” R v Grantham [1984] 1Q.B. 675; 79 Cr App.R.86.CA; or “involving, according to the current notions of fair trading among commercial men, real moral blame” Re Patrick & Lyon Ltd [1933] Ch. 786, Ch D, per Maugham J. at p.790

Section 9 (3) (c) refers to section 718 (1) of the Companies Act 1985 which exempts certain types of bodies from fraudulent trading. That exemption also applies to section 9. The only exemption likely to concern prosecutors is that in section 718 (2) (b)

“Any body not formed for the purpose of carrying on a business which has for its object the acquisition of gain by the body or its individual members” i.e. a non profit making body cannot be guilty of fraudulent trading, though for example, the individual trustees of a charity can be guilty of offences.

Obtaining services dishonestly (Section 11)

The defendant:

  • obtains for himself or another;
  • services;
  • dishonestly;
  • knowing the services are made available on the basis that payment has been, is being or will be made for or in respect of them or that they might be; and 
  • avoids or intends to avoid payment in full or in part.

This offence replaces obtaining services by deception in Section 1 of the Theft Act 1978 which is repealed by the Act.

The defendant must have the necessary intention at the time that the service is obtained (section 11 (2) (c)).

In many cases, the defendant will also have committed an offence under Section 2 of the Act by making a false representation that payment will be made or made in full. Prosecutors must decide which offence better reflects the criminality involved. The maximum sentence for the Section 11 offence is five years’ imprisonment.

The Elements of the Offences

False representation

Section 2 (2) defines the meaning of “false” and Section 2 (3) defines the meaning of “representation”.

A “representation” means any representation as to fact or law, including a representation as to the state of mind of the person making the representation or any other person (Section 2 (3)). An example of the latter might be where a defendant claims that a third party intends to carry out a certain course of action perhaps to make a will in someone’s favour. It may be difficult to prove to the necessary standard that the Defendant knew the state of mind of a third party, but easier to prove that he knew what it might be.

A representation may be express or implied (Section 2 (4)). It can be stated in words or communicated by conduct. There is no limitation on the way in which the representation may be expressed.

A representation can be made by omission, for example, by omitting to mention previous convictions or County Court Judgements on an application form.

An offence may be completed when the defendant fails to correct a false impression after a change in circumstances from the original representation (if the representation may be regarded as a continuing series of representations).

A representation can be made to a machine (Section 2 (5)), for example, where a person enters a number into a CHIP and PIN machine or a bank ATM; or gives false credit card details to the voice activated software on a telephone line; or gives false credit card details to a supermarket website to obtain groceries.

Evidence is necessary to prove that the defendant communicated the false representation to a person or to a machine. It is not relevant whether the false representation is believed or has any affect on any other person.

In some cases it will not be necessary to call evidence from a victim, but prosecutors should bear in mind that a victim who is not named on an indictment or in a TIC cannot be compensated.

Untrue or misleading

A representation is defined as “false” if it is untrue or misleading and the person making it knows that it is, or might be, untrue or misleading. Actual knowledge that the representation might be untrue is required not awareness of a risk that it might be untrue.

Dishonestly

The definition in R v Ghosh [1982] 1QB 1053 applies: 

  • was what was done dishonest by the ordinary standards of reasonable and honest people? 
  • must the defendant have realised that what he/she was doing was, by those standards, dishonest?

The question of dishonesty’ is one for the jury and submissions of no case to answer should not be acceded to based only on the issue of dishonesty.

Gain or loss

“Gain “and “loss” are defined in section 5 of the Act. The definition is essentially the same as in Section 34 of the Theft Act.

Gain and loss extends only to gain and loss in money or other property (Section 5 (2) (a)), whether temporary or permanent (Section 5 (2) (b)) and means any property whether real or personal including things in action and other intangible property (Section 5 (2) (b)).

“Gain” includes a gain by keeping what one has, as well as a gain by getting what one does not have (Section 5 (3)).

“Loss” includes a loss by not getting what one might get as well as a loss by parting with what one has (Section 5 (4)).

The Defendant must intend to make the gain or cause the loss by means of the false representation.

The breadth of conduct to which Section 2 applies is much wider than the old Theft Act deception offences because no gain or loss need actually be made. It is the Defendant’s ultimate intention that matters. If the Defendant gets information by making a false representation, intending ultimately to make a gain or cause a loss within the meaning of Section 5 by doing so, he will have committed a Section 2 offence.

Failure to disclose information

There is no requirement that the failure to disclose must relate to “material” or “relevant “information, nor is there any de minimis provision. If a Defendant disclosed 90% of what he was under a legal duty to disclose but failed to disclose the (possibly unimportant) remaining 10%, the actus reus of the offence could be complete. Under such circumstances the Defendant would have to rely on the absence of dishonesty. Such cases can be prosecuted under the Act if the public interest requires it, though such cases will be unusual.

It is no defence that the Defendant was ignorant of the existence of the duty, neither is it a defence in itself to claim inadvertence or incompetence. In that respect, the offence is one of strict liability. The defence must rely on an absence of dishonesty and the burden, of course, lies with the prosecutor.

Prosecutors must be acutely aware of the public interest in such cases, bear in mind the relative standing of the parties and pay particular regard to any explanation for the failure given by the Defendant.

A legal duty to disclose information can arise as a result of a contract between two parties or because of the existence of a particular type of professional relationship between them; for example, a solicitor/client relationship. In its report on fraud (No. 276 Cm 5560 2002) the Law Commission made the following comments about the circumstances in which a legal duty might arise:

7.28 … Such a duty may derive from statute (such as the provisions governing company prospectuses), from the fact that the transaction in question is one of the utmost good faith (such as a contract of insurance), from the express or implied terms of a contract, from the custom of a particular trade or market, or from the existence of a fiduciary relationship between the parties (such as that of agent and principal).

7.29 For this purpose there is a legal duty to disclose information not only if the defendant’s failure to disclose it gives the victim a cause of action for damages, but also if the law gives the victim a right to set aside any change in his or her legal position to which he or she may consent as a result of the non- disclosure. For example, a person in a fiduciary position has a duty to disclose material information when entering into a contract with his or her beneficiary, in the sense that a failure to make such disclosure will entitle the beneficiary to rescind the contract and to reclaim any property transferred under it. 

Abuse of a position

The “position” required by section 4 is one that may be described as a position of trust. It could include company directors, trustees, business partners or employees. In many cases it will be one where there is a legal ‘fiduciary’ duty; but such a duty is not essential. It is, however, a position that carries something more than a moral obligation.

The Law Commission explained the meaning of “position” as follows:

“The necessary relationship will be present between trustee and beneficiary, director and company, professional person and client, agent and principal, employee and employer, or between partners. It may arise otherwise, for example within a family, or in the context of voluntary work, or in any context where the parties are not at arm’s length. In nearly all cases where it arises, it will be recognised by the civil law as importing fiduciary duties, and any relationship that is so recognised will suffice. We see no reason, however, why the existence of such duties should be essential. This does not, of course, mean that it would be entirely a matter for the fact finders whether the necessary relationship exists. The question whether the particular facts alleged can properly be described as giving rise to that relationship will be an issue capable of being ruled on by the judge and, if the case goes to the jury, of being the subject of directions.”

Examples of the type of conduct that would give rise to a charge under section 4 are: 

  • an employee of a software company who uses his position to clone software products with the intention of selling the products on his own behalf; 
  • where a person is employed to care for an elderly or disabled person and has access to that person’s bank account but abuses that position by removing funds for his own personal use. (This may also be theft);
  • an attorney who removes money from the grantor’s accounts for his own use. The Power of Attorney allows him to do so but when excessive this will be capable of being an offence under Section 4; 
  • an employee who fails to take up the chance of a crucial contract in order that an associate or rival company can take it up instead;
  • a trustee who dishonestly acts outside the terms of a trust deed in order to produce a gain or loss for himself or others; 
  • a director of a company who dishonestly makes use of knowledge gained as a director to make a personal gain;
  • an employee who abuses his position in order to grant contracts or discounts to friends, relatives and associates; 
  • a waiter who sells his own bottles of wine passing them off as belonging to the restaurant R v Doukas [1978] 1 All E.R. 1071.;
  • a tradesman who helps an elderly person with odd jobs, gains influence over that person and removes money from their account (This may also be theft but see the guidance on the Public Interest criteria above for the Fraud offences);
  • the person entrusted to purchase lottery tickets on behalf of others again, this will probably be theft as well.

The terms “financial interests” and “abuse” are not defined in the Act and so may be taken to have their ordinary meaning.

Note that the section refers to a person who “occupies a position in which he is expected … “. The person who no longer occupies that position when, for example, he uses information properly gained while “in post” dishonestly, does not commit an offence. He may do so if there is a contractual obligation that extends beyond his departure from the post. He will, however, be guilty of an offence if he took steps to plan his actions while “in post” and put the plan into action after leaving the post or after the relationship ceased.

For example, an employee who transferred sensitive commercial information from his office laptop to his home computer while in employment and used it after that employment had ended will commit the offence. At that stage he will no longer be “occupying a position ” but he was when the offence was committed (transferring the information intending to make a gain or cause a loss) and so can be prosecuted.

In these circumstances prosecutors must be particularly mindful that the criminal law is not invoked by complainants for purely commercial purposes. 

Possession or control

The Act does not offer a definition of “possession or control”.

It is probable that the case law on possession of drugs will apply. The phrase “possession or control” suggests something looser than the absolute “possession” in the Proceeds of Crime Act 2002. Under that Act “possession” means having physical custody of criminal property.

Section 37(3) of the Misuse of Drugs Act 1971 provides that for the purposes of that Act “the things which a person has in his possession shall be taken to include anything subject to his control which is in the custody of another”.

Although the Fraud Act does not contain a similar section, the reference to “control” suggests that items in the possession of others but over which the Defendant retains control would qualify as being in the defendant’s “possession”.

For the law on what constitutes “possession” and “control” in drugs cases refer to Archbold 2010, 27-54 to 27-70.

The law on possession of indecent images will also apply particularly to the possession of software and material stored on computers for use in fraud (covered by virtue of section 8). Prosecutors should bear in mind the judgement of the Court of Appeal in R v Porter [2006] EWCA Crim 560, in which it was held that an image (and, by analogy, a document) will only be considered to be in the possession of the defendant (in the sense of custody or control) if it is accessible to him. In the case of a deleted image, where the Defendant could not retrieve or gain access to it he would no longer have custody or control of it. It follows that it would not be appropriate to say that a person who could not retrieve and image (or document) from a hard disk drive would be in possession of the image by reason of his possession of the hard disk drive itself.

In cases where the prosecution will rely on evidence of material stored on computers, it will be necessary to obtain expert evidence as in cases involving indecent images. 

Article

“Article” has its ordinary meaning subject to Section 8. It is extremely wide covering anything from pen and paper to blank credit cards, credit card numbers and sophisticated computer programmes.

Section 8 provides further definition of the term “article”. For the purposes of Sections 6 and 7 and the provisions listed in Section 8 (2) which include Section 1 (7) (b) of the Police and Criminal Evidence Act 1984 (“prohibited articles” for the purposes of stop and search powers) “article” includes any program or data held in electronic form.

If a successful Section 2 fraudster has succeeded in obtaining information held either as hard copy or in data form from those he has duped, he will also be guilty of a Section 6 offence in relation to that information.

Services

In respect of the definition of services see Archbold 2010, 21-408. The service must be provided on the basis that it will be paid for. The same restrictions will therefore apply to the obtaining of banking services under this section as before they must be chargeable to fall within the ambit of Section 11 (R v Sofroniou [2003] EWCA Crim 3681). If the banking services obtained are free, Section 11 cannot be charged. The same restriction does not apply to Section 2 fraud by making a false representation.

Obtains for himself or another

Section 11 differs from the offences under section 1 in that it requires the actual obtaining of a service (by a dishonest act).

It is not possible to commit the offence by omission alone. This avoids the situation where unscrupulous service providers might feel able to pressure anyone who had been given services they had not requested.

Evidence of spouse/partner (Section 3)

Section 13 is similar to Section 31(1) of the Theft Act 1968. A person is protected from incriminating himself or his spouse or civil partner for the purposes of offences under the Act and related offences, while nonetheless being obliged to co-operate with certain civil proceedings (for example, civil confiscation) relating to property. This section goes beyond Section 31 (1) of the Theft Act 1968 in removing privilege in relation to “related offences” as well as the offence charged. “Related offences” are defined in Section 13 (4) as conspiracy to defraud and any other offence involving any form of fraud or fraudulent conduct or purpose.

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Joseph-S-R-de-Saram

Joseph S R de Saram (JSRDS)

Information Security Architect / Intelligence Analyst / Computer Scientist / Human Rights Activist / COMSEC / SIGINT / TSCM
RHODIUM GROUP