19 July 2021
Not reviewed after the date of publication
If someone uses a lebanese loop in an ATM to obtain victims bank card to then subsequently empties out the account, is this theft or fraud?
Obtaining the bank card by use of the device will amount to an offence of theft, however then using the card to withdraw funds will meet the offence of fraud by false representation.
Section 2 of the Fraud Act 2006 outlines:
'2(1) A person is in breach of this section if he -
(a) dishonestly makes a false representation, and
(b) intends, by making the representation -
(i) to make a gain for himself or another, or
(ii) to cause loss to another or to expose another to a risk of loss.
2(2) A representation is false if -
(a) it is untrue or misleading, and
(b) the person making it knows that it is, or might be, untrue or misleading.'
Section 2(5) confirms that a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention).
In many cases fraud will also be theft and prosecutors must decide which offence properly reflects the criminality concerned. It is our opinion the offence of fraud by false representation will likely be the best offence in the circumstances.
Please see the following CPS guidance which may assist and outlines the overlap with theft and fraud in more detail.
To read more legislation about this, login to the legal database.