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Fraud by false representation is the most commonly charged criminal offence of fraud in England and Wales, and it is far broader than most people assume. The offence is complete the moment the representation is made. Nobody has to believe it, nobody has to hand over anything, and no loss has to occur. This is a plain-English account of how section 2 of the Fraud Act 2006 works, why almost every contested case turns on two questions rather than on the facts of the transaction, and where the defence work actually sits.
A person commits fraud by false representation if they dishonestly make a representation, that they know, or ought to know at the time, that it was false, intending by that to make a gain for themselves or another, or to cause loss to another or expose another to a risk of loss.
A representation is false if it is untrue or misleading, and whoever makes it knows that it is, or knows that it might be. That second limb matters and is frequently overlooked: knowledge that a statement might be untrue or misleading is generally enough to probe the allegation. A person who makes a statement not caring whether it is accurate is not protected by never having checked the accuracy of the 'false' statement.
The representation can be as to fact or law, and it can be as to the state of mind of the person making it or of anyone else. A statement about what someone intends to do is therefore capable of being a false representation, if the intention was never held.
The Fraud Act 2006 creates one offence of fraud, committed in three ways. Knowing which is charged matters, because the elements differ.
The Act separately creates the offence of obtaining services dishonestly under section 11, which, unlike section 2, requires that the services were in fact obtained. Its maximum sentence is lower, at five years rather than ten.
Charges are often laid in the alternative, and a case pleaded as an abuse of position is answered very differently from one pleaded as a false representation. The first thing to establish is which offence is actually alleged and what evidence do the police have relating to each ingredient of the offence.
There is no requirement that anybody is taken in. There is no requirement that money changes hands, that anyone suffers a loss, or that the person making the representation gains anything at all.
The offence is complete when the false representation is made with the necessary dishonesty and intent. Everything that happens afterwards, or fails to happen, goes to seriousness and sentence rather than to whether the offence was committed.
This is why people are charged in situations they had assumed were harmless: an application that was refused, a claim that was withdrawn, an invoice that was queried and never paid. The absence of a victim who lost money feels to most clients like the end of the case. Legally, it is not.
Most explanations of this offence stop at “saying something untrue”. The section is considerably broader, and the breadth is where a great number of charges are built.
Implied representations. A representation can be made by conduct as well as by words. Presenting a card for payment implies a representation that you are entitled to use it and that it will be honoured. Ordering in a restaurant implies an intention to pay. Nothing needs to be said out loud.
Representations to a machine. The Act expressly contemplates a representation made to a system or device, where no human being reads it at all. An online form, an automated application, a payment terminal. This is why so many modern fraud charges concern online activity where nobody was ever spoken to.
Statements of intention. Saying you will do something you have no intention of doing is a representation as to your state of mind, and it can be false when made.
The practical consequence is that the prosecution rarely has to prove an outright lie. It has to prove something untrue or misleading was conveyed, expressly or, by implication, and that the defendant knew it was or might be.
The offence covers a far wider range of situations than the word “fraud” suggests. The common contexts are ordinary ones:
Two things are worth noticing about that list. None of the examples requires a face-to-face lie, and several are completed by conduct alone. The last is the reason so many modern charges arise from entirely online activity.
If a case is fought, this is the main area where it is fought.
Dishonesty in these offences is assessed objectively, by the standards of ordinary decent people. The question is what the individual actually knew or believed about the facts, and then whether their conduct was dishonest by those ordinary standards. What the individual thought about whether they were being dishonest is not the test.
That is a relatively recent change, and it matters. The test in the case of Ivey replaced the older Ghosh test, which had contained a second, subjective limb asking whether the defendant realised that ordinary people would regard the conduct as dishonest. That limb is gone. A defendant can no longer answer the charge by saying they did not personally think what they were doing was dishonest.
The prosecution must still prove dishonesty. It is an element of the offence, not a presumption.
That cuts in both directions, and it is worth being straightforward about it.
It means a genuinely held but unreasonable belief does not automatically excuse conduct. It also means the first stage of the test is entirely about the defendant’s actual state of knowledge and belief, and that stage is factual, evidenced and arguable. A person who believed they were entitled to the money, or believed the figure they gave was accurate, or misunderstood what was being asked, is arguing about the facts the test is applied to, not appealing to their own moral standards.
Most defences to this offence live in that first stage.
Fraud by false representation is an either-way offence. In the magistrates’ court the sentencing powers are limited; in the Crown Court the maximum is 10 years’ custody, an unlimited fine, or both.
The maximum sentence is not the likely sentence, and the gap is wide. Sentence turns principally on culpability and on the actual or intended loss caused, assessed under the applicable sentencing guideline. As intended loss counts, a case where nothing was obtained can still be treated seriously, though the absence of actual loss is relevant.
At the lower end of the range, community orders and fines are routine, particularly for a first offence, a modest sum and an early plea. The guideline range runs from a discharge upwards, and much of the work in criminal proceedings of this kind is establishing where on that range a case genuinely sits, rather than where the prosecution has placed it.
Where court proceedings are unavoidable, venue matters. An either-way offence can be heard in the Magistrates’ court or the Crown Court, and that decision carries consequences both for sentencing exposure and for how the evidence is tested.
Where the sums are significant, a conviction is rarely the end of it. The court can order confiscation of the proceeds under the Proceeds of Crime Act 2002, and compensation or restitution to those who lost money may be ordered alongside it. For many of the people we act for, the collateral consequences matter more than the sentence: professional regulators, directorship disqualification, employment and immigration status can all be affected by a conviction for any dishonesty offence. Confiscation proceedings under the Proceeds of Crime Act frequently follow, and assets may be restrained long before that. Anyone facing an allegation of this kind should understand the money laundering exposure under POCA and how an account freezing order can arrive with no charge at all.
Very little of it is about denying that a transaction happened.
Where an investigation begins with a dawn raid by the SFO or FCA, or where the conduct is said to have been committed within a business, the failure to prevent fraud exposure for the individuals inside needs to be considered at the same time. What is said in any interview under caution becomes the fixed account everything is measured against.
We act for individuals and businesses across England and Wales facing allegations under the Fraud Act 2006, and most of the value we add is delivered before a charging decision.
In practice, that means reconstructing the documentary record while it is complete, establishing what our client actually knew and believed at the point the representation was made, testing whether the prosecution can prove a representation was made at all where it is said to be implied, and putting that analysis in writing to the investigating agency before it commits to charge. Where matters proceed, we deal with restraint and confiscation as part of the same strategy rather than as a later problem. This forms the core of our fraud defence practice within our wider criminal defence work.
Financial crimes look like arguments about money. They are almost always arguments about what somebody knew, in the circumstances as they were at the time.
We offer confidential consultations, in person at our London offices or remotely by secure call. Initial enquiries are handled discreetly and quickly.
If you are under investigation and no charging decision has been taken, that is the stage at which the documentary record is most complete, and representations carry the most weight. On the other hand, if you have been charged with a Fraud offence, we can seek a review of the case which could result in the prosecution discontinuing entirely. Speak to our team today.
False representation fraud is a criminal offence under section 2 of the Fraud Act 2006, committed when someone dishonestly, makes a false representation intending to make a gain for themselves or another, or to cause a loss to another or expose another to a risk of loss.
It is an either-way offence. The maximum sentence in the Crown Court is 10 years’ custody, an unlimited fine, or both, with lower sentencing powers in the magistrates’ court. Community orders and fines are common at the lower end of the range. Sentence turns mainly on culpability and harm, i.e. on the actual or intended financial harm.
Overstating income on a mortgage or loan application, submitting an inflated or invented insurance claim, selling goods described as something they are not, or using a card or identity that does not belong to you. Each involves conveying something untrue or misleading in order to obtain something.
No. The offence is complete when the representation is made with the necessary dishonesty and intent. Nobody has to believe it, and no gain or loss has to occur. That affects seriousness and sentence, not whether the offence was committed.
Yes. The Act contemplates a representation made to a system or device with no human involved, which is why many modern charges concern online forms and automated applications.
Yes. The police can charge some fraud offences, and in more serious or complex cases the decision sits with the Crown Prosecution Service. Dishonesty offences of this kind are among the most commonly prosecuted financial crimes in England and Wales. Investigations may also be conducted by bodies such as the Serious Fraud Office or the Financial Conduct Authority.
Objectively. The court establishes what the defendant actually knew or believed about the facts, then asks whether their conduct was dishonest by the standards of ordinary decent people. What the defendant thought about their own honesty is not the test, which is why the defence usually concentrates on the first stage.
Take advice before any interview, and preserve the documentary record. Fraud cases are decided on documents, and the material is at its most complete now. You can contact our team directly for a confidential discussion.
Lex Vindico Group is regulated by the Solicitors Regulation Authority. We represent individuals and businesses nationally across England and Wales in criminal, regulatory, and parallel-proceedings defence at every stage, and most decisively, at the pre-charge stage.
This article is written by Akram Mula, LLM, Solicitor Advocate and CPS-approved Prosecutor, founder of Lex Vindico Group. It is general legal information about fraud by false representation under the Fraud Act 2006, not legal advice on any specific case. For advice on your specific circumstances, contact our team directly.
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