Fraud offences - Fraud by failing to disclose information

Learning Outcomes

After studying this article, you will be able to identify and explain the elements of fraud by failing to disclose information under the Fraud Act 2006. You will understand what constitutes a legal duty to disclose, how dishonesty is assessed, and what is required for intent to make a gain or cause a loss. You will be able to apply these principles to SQE1-style scenarios and distinguish this offence from other types of fraud.

SQE1 Syllabus

For SQE1, you are required to understand the offence of fraud by failing to disclose information, including the specific elements that must be proved and how this offence differs from other fraud offences. In your revision, focus on:

  • the meaning and sources of a legal duty to disclose information
  • the objective test for dishonesty in criminal law
  • the requirement for intent to make a gain or cause a loss
  • how fraud by failing to disclose information is distinguished from fraud by false representation and fraud by abuse of position

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. What are the three main elements that must be proved for fraud by failing to disclose information under the Fraud Act 2006?
  2. Give two examples of relationships or situations where a legal duty to disclose information may arise.
  3. What is the test for dishonesty in criminal law, and does it require the defendant to realise their conduct is dishonest?
  4. How does fraud by failing to disclose information differ from fraud by false representation?

Introduction

Fraud by failing to disclose information is a specific offence under section 3 of the Fraud Act 2006. This offence targets situations where a person is under a legal duty to disclose information but dishonestly fails to do so, intending to make a gain or cause a loss. For SQE1, you must be able to identify the elements of this offence, recognise when a legal duty exists, and apply the correct test for dishonesty and intent.

Elements of Fraud by Failing to Disclose Information

To prove fraud by failing to disclose information, the prosecution must establish:

  1. The defendant was under a legal duty to disclose information.
  2. The defendant dishonestly failed to disclose that information.
  3. The defendant intended, by failing to disclose, to make a gain for themselves or another, or to cause loss to another or expose another to a risk of loss.

Each element must be present for the offence to be made out.

Key Term: legal duty to disclose
A legal obligation arising from statute, contract, fiduciary relationship, or other recognised source, requiring a person to reveal specific information to another.

Key Term: dishonesty
Conduct that ordinary, reasonable people would consider dishonest, assessed objectively, regardless of whether the defendant realised it was dishonest.

Key Term: intent to make a gain or cause a loss
A deliberate aim to obtain or keep money or property, or to cause another to lose or risk losing money or property, whether permanently or temporarily.

The Legal Duty to Disclose Information

A legal duty to disclose information is essential for this offence. The duty may arise from:

  • Statute: For example, company directors must declare personal interests in transactions under the Companies Act 2006.
  • Contract: Insurance contracts require disclosure of all material facts (the principle of utmost good faith).
  • Fiduciary relationships: Trustees, agents, and professionals such as solicitors must disclose material information to those they owe duties to.
  • Other legal sources: Duties may also arise from regulatory rules or court orders.

If there is no legal duty, a failure to disclose information will not amount to this offence, even if the omission is dishonest.

Dishonesty

The prosecution must prove that the defendant's failure to disclose was dishonest. The test for dishonesty is objective:

  • What did the defendant know or believe about the facts?
  • Would ordinary, decent people consider the conduct dishonest in those circumstances?

It is not necessary for the defendant to appreciate that their conduct was dishonest.

Intent to Make a Gain or Cause a Loss

There must be an intention to make a gain or cause a loss by failing to disclose the information. Gain and loss are defined broadly and include keeping what one has, obtaining something new, or causing another to lose or risk losing money or property. The gain or loss can be temporary or permanent.

Worked Example 1.1

Scenario:
A director of a company negotiates a contract between the company and a business owned by their spouse. The director does not disclose this interest to the board, as required by law, and the contract is approved. The director intends to benefit financially from the arrangement.

Answer:
The director is under a statutory legal duty to disclose their interest. By failing to do so, dishonestly and intending to make a gain, the director commits fraud by failing to disclose information.

Worked Example 1.2

Scenario:
An insurance applicant omits to mention a previous claim when completing a policy application. The applicant knows that disclosing the claim would increase the premium. The insurer relies on the incomplete information and issues the policy at a lower rate.

Answer:
The applicant is under a contractual duty to disclose all material facts. The omission is dishonest by objective standards and is intended to make a financial gain. This is fraud by failing to disclose information.

Exam Warning

For SQE1, be careful to distinguish fraud by failing to disclose information from fraud by false representation. Fraud by omission requires a legal duty to disclose; fraud by false representation involves making an untrue or misleading statement.

Distinguishing Fraud by Failing to Disclose Information from Other Fraud Offences

  • Fraud by false representation (section 2) requires an express or implied statement that is untrue or misleading.
  • Fraud by abuse of position (section 4) involves a person in a position of trust acting against the interests of another.

Fraud by failing to disclose information is unique in that it criminalises dishonest omissions where there is a legal duty to speak.

Revision Tip

When answering SQE1 questions, always check whether the scenario involves a legal duty to disclose. If not, fraud by failing to disclose information cannot be made out.

Key Point Checklist

This article has covered the following key knowledge points:

  • Fraud by failing to disclose information requires a legal duty to disclose, dishonesty, and intent to make a gain or cause a loss.
  • Legal duties may arise from statute, contract, fiduciary relationships, or other recognised legal sources.
  • Dishonesty is assessed objectively, not by the defendant’s own standards.
  • There must be an intention to make a gain or cause a loss by the omission.
  • This offence is distinct from fraud by false representation and fraud by abuse of position.

Key Terms and Concepts

  • legal duty to disclose
  • dishonesty
  • intent to make a gain or cause a loss
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