Problem Question: Criminal Law, No.6

Problem Question

Anwar is a mortgage broker who earns a commission for every mortgage application he processes, regardless of the outcome. Bill, who runs his own business, seeks a mortgage through Anwar. During the application process, Bill tells Anwar that he earns £30,000 in a good year but only £22,000 over the past two years. To secure a larger loan and a better repayment rate for Bill, Anwar, without Bill’s knowledge, fraudulently states Bill’s annual income as £30,000 on the mortgage application.

As Bill leaves Anwar’s office, he notices a poster indicating that Anwar’s firm gives away expensive fountain pens to clients who successfully obtain mortgages through the firm. There is a box of these pens next to the poster. Bill, unsure whether his mortgage application will be accepted, picks up a pen but puts it back in the box when he sees the receptionist approaching.

Bill wishes to buy a flat in Clapham North to ensure that his partner Charlotte, who has a medical condition requiring frequent visits to a highly recommended NHS practice in Clapham North, can access this medical practice, which only accepts patients from that area. Although the mortgage deal and flat purchase are not yet finalised, Charlotte registers with the practice, using the address of the flat as her current residence.

Analyse the potential legal issues and charges related to the following individuals based on the provided scenario:

1. Anwar’s Conduct:

◦ Potential charges for fraud related to the false representation on the mortgage application.

2. Bill’s Conduct:

◦ Potential theft of the fountain pen.

3. Charlotte’s Conduct:

◦ Potential fraud related to the false representation of her address to the NHS practice.

Consider the following legal aspects:

• Fraud (under the Fraud Act 2006) and Theft (under the Theft Act 1968)

◦ Anwar’s false representation and his intention to make a gain.

◦ Bill’s action of taking and returning the pen, his honesty, and intent.

◦ Charlotte’s representation of her address to the NHS practice and her intention.

Analysis

Anwar’s Conduct

Fraud (under the Fraud Act 2006)

◦ False Representation: Anwar made a false representation about Bill’s income on the mortgage application. Under section 2 of the Fraud Act 2006, a person commits fraud by making a false representation which they know to be untrue.

◦ Intention to Make a Gain: Anwar’s intention was to help Bill secure a larger loan and better terms, which would indirectly benefit Anwar through potentially better terms and a higher likelihood of commission. This intention to gain or benefit from the false representation aligns with the definition of fraud.

◦ Dishonesty: Anwar was aware that the representation was false and chose not to inform Bill, thus acting dishonestly.

Conclusion: Anwar is likely to be charged with fraud due to his intentional false representation of Bill’s income and the resulting gain he hoped to achieve.

Bill’s Conduct

Theft (under the Theft Act 1968)

◦ Dishonesty: Bill initially took the pen with the intention to keep it but put it back when he saw the receptionist, indicating awareness that his action might be dishonest.

◦ Appropriating Property: Bill’s initial act of taking the pen can be considered as appropriating property belonging to another (Anwar’s firm).

◦ Intention of Permanent Deprivation: Bill’s intention to keep the pen if not interrupted suggests he had the intention to permanently deprive the owner of the pen.

Conclusion: Bill’s actions could be classified as theft because he appropriated the pen with the intent to permanently deprive the owner of it, even though he returned it when confronted.

Charlotte’s Conduct

Fraud (under the Fraud Act 2006)

◦ False Representation: Charlotte registered with the NHS practice using the flat’s address before the mortgage was finalised, which could be considered a false representation of her current residence.

◦ Dishonesty: From an objective standpoint (following Ivey v Genting Casinos [2017]), dishonesty is judged by whether the conduct falls below the standard expected of a reasonable person. Charlotte’s act might be seen as an attempt to gain access to a medical practice by misrepresenting her residence, even if she was confident that the mortgage would be approved.

Conclusion: Charlotte’s action could potentially be considered fraudulent, as it involves a false representation made to obtain a gain (access to the NHS practice) based on a misrepresented address.