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Fraud by abuse of position

ss.1 and 4Fraud Act 2006

Dishonestly abusing a position in which you are expected to safeguard, or not to act against, another person's financial interests, intending to make a gain or to cause loss or a risk of loss.

Fraud by abuse of position · Fraud Act 2006, ss.1 and 4Card 18 / 85

Points to prove

Occupied a position in which they were expected to safeguard, or not to act against, the financial interests of another person
Dishonestly
Abused that position
Intending, by means of the abuse of that position, to make a gain for themselves or another, or to cause loss to another or expose another to a risk of loss

Key definitions

Position – not defined in the Act. Typical examples are trustee and beneficiary, employee and employer, professional and client, carer and the person cared for, and someone holding a power of attorney.
Dishonestly – not defined in the Act. The test is Ivey v Genting (2017), applied in R v Barton and Booth (2020): the defendant’s actual knowledge or belief, then whether the conduct was dishonest by the standards of ordinary decent people.
Abuse – not defined in the Act. It can be an omission as well as an act (s.4(2)).
Gain and loss – s.5: only gain or loss in money or other property, whether temporary or permanent. Gain includes keeping what you have; loss includes not getting what you might get.

Good to know

No gain or loss has to actually happen, and the victim does not need to know about the abuse.
Examples: a carer taking money from an elderly person’s bank account, an employee diverting the employer’s business to themselves, or an employee deliberately not taking up a contract so a rival company they have links with gets it (an omission).

Legislation: Fraud Act 2006, ss.1 and 4 (opens legislation.gov.uk in a new tab)
Mode of trial: Either way
Maximum penalty: 10 years' imprisonment and/or a fine (on indictment)