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    Hi,

    I'm having a go at a problem question and finding it difficult to work out whether an offence has been committed. Here's the problem:

    Dan is preparing online applications for vacation placements with law firms. There is a statement on the application form requiring that all criminal convictions be disclosed, but Dan fails to notice it. He does not mention that he was convixted three years ago, when aged 15, for a minor criminal damage offence. He claims to have got a First in his first year exams (in fact, he got firsts on two papers but an Upper Second overall). He saves the completed application on the computer without submitting it.
    The potential offences are fraud by failure to disclose (s.3) and fraud by false representation (s.2). However, I have several issues:

    1. I'm not sure whether the actus reus is made out - I think it is in that the fact that he's made the representation to a machine is sufficient, even though he hasn't submitted the form (which would give rise to a fresh representation to the person who then reads the form). However, my friend thinks that no representation has been made
    2. I'm not sure whether the mens rea is present - I know that there has to be an intention to make a (financial or property) gain or cause a loss, but I don't think there's any such intention relating directly to this representation. My friend argues that the purpose of him lying on this form is to get the vac scheme so that he has sufficient experience to get a job further down the line, so there is a financial gain that he has in mind. However, this feels too far removed from the original representations for it to apply here


    I'd be grateful for any clarification on this! :woo:

    Thanks.
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    (Original post by Tortious)
    Hi,

    I'm having a go at a problem question and finding it difficult to work out whether an offence has been committed. Here's the problem:



    The potential offences are fraud by failure to disclose (s.3) and fraud by false representation (s.2). However, I have several issues:

    1. I'm not sure whether the actus reus is made out - I think it is in that the fact that he's made the representation to a machine is sufficient, even though he hasn't submitted the form (which would give rise to a fresh representation to the person who then reads the form). However, my friend thinks that no representation has been made
    2. I'm not sure whether the mens rea is present - I know that there has to be an intention to make a (financial or property) gain or cause a loss, but I don't think there's any such intention relating directly to this representation. My friend argues that the purpose of him lying on this form is to get the vac scheme so that he has sufficient experience to get a job further down the line, so there is a financial gain that he has in mind. However, this feels too far removed from the original representations for it to apply here


    I'd be grateful for any clarification on this! :woo:

    Thanks.
    This looks horribly familiar ... past tripos question, right?

    With regard to the criminal conviction aspect, I would argue that there is no fraud of failure to disclose because there is no mens rea: he didn't notice it so he lacks a dishonest intention as per S.3.

    With regard to his grades, I would lean more towards there being no AR because he hasn't submitted it. S.2(5) states that the representation counts if it is made to a system or machine designed to recieve, convey or respond to communications. If you take the online form as being the system in this case, nothing's been sent to it. It's basically preparatory. However, you could interpret it your way. I think it depends how you read the section; considering how the section came into existence, I would go with your friend though.

    Regarding MR, if the VS were funded then you could argue that there was a dishonest intention to gain property because D would gain money from this VS. Otherwise, the prospect of a job in the future is probably too remote.
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    (Original post by gethsemane342)
    This looks horribly familiar ... past tripos question, right?

    With regard to the criminal conviction aspect, I would argue that there is no fraud of failure to disclose because there is no mens rea: he didn't notice it so he lacks a dishonest intention as per S.3.

    With regard to his grades, I would lean more towards there being no AR because he hasn't submitted it. S.2(5) states that the representation counts if it is made to a system or machine designed to recieve, convey or respond to communications. If you take the online form as being the system in this case, nothing's been sent to it. It's basically preparatory. However, you could interpret it your way. I think it depends how you read the section; considering how the section came into existence, I would go with your friend though.

    Regarding MR, if the VS were funded then you could argue that there was a dishonest intention to gain property because D would gain money from this VS. Otherwise, the prospect of a job in the future is probably too remote.
    Yes, it is a past question - my DoS has set us all off answering different ones "to perfection" ready for discussion in the revision sessions when we get back.

    Thanks for your help. My problem is that I did Law A Level and am used to identifying (almost) every possible offence to score "bonus points" - I've been told that that approach won't help me at undergrad level, but I can't draw the line between using my judgment and saying "nah, that probably wouldn't be charged" and giving the impression that I've considered everything. I don't suppose you've got any tips? :p:
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    (Original post by Tortious)
    Yes, it is a past question - my DoS has set us all off answering different ones "to perfection" ready for discussion in the revision sessions when we get back.

    Thanks for your help. My problem is that I did Law A Level and am used to identifying (almost) every possible offence to score "bonus points" - I've been told that that approach won't help me at undergrad level, but I can't draw the line between using my judgment and saying "nah, that probably wouldn't be charged" and giving the impression that I've considered everything. I don't suppose you've got any tips? :p:
    The important thing for criminal is to identify all the possible major offences and work your way down. Always start with the worst one. For example, say in the problem question D is shooting a gun randomly and V is walking by at that moment. Start with murder even though it probably isn't murder due to lack of MR. Dismiss it for that reason and then move on to manslaughter etc.

    That's not actually a bad ability. There's no way you'll cover every offence in the problem question (or highly unlikely anyway) but it looks impressive if you have time to discuss the smaller aspects of the question. Just as long as you give the right amount of weight to the major/obvious offences. This is also true for tort actually.
 
 
 
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