Andrew Wheeler KC and Ben Isaacs have been successful in the Court of Appeal on a case examining the essential ingredients of the offence of Fraud by Abuse of Position, contrary to section 4 of the Fraud Act 2006, albeit with wider implications for other offences, and in particular those alleging fraud.

The appeal followed a successful prosecution by the UK Serious Fraud Office (SFO) in relation to the operation of a substantial offshore investment scheme.

The issues in the Appeal were focused on the ingredient of ‘intention’ in cases alleging fraud, and whether it is necessary for a jury to be unanimous as to the specific kind of financial impact that is intended.

Agreeing with the submissions advanced on behalf of the SFO, the Court, presided over by the Lady Chief Justice, held that whether the financial impact intended is gain, loss, or both, is immaterial. Those sub-elements are merely mechanisms through which the jury may be satisfied of the single, overarching ingredient of intention.

The official judgment is available here.


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