Cheating (law)
 | The examples and perspective in this article deal primarily with the United Kingdom and do not represent a worldwide view of the subject. (December 2015) |
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At law, cheating is a specific criminal offence relating to property.
Historically, to cheat was to commit a misdemeanour at common law. However, in most jurisdictions, the offence has now been codified into statute.[1]
In most cases the codified statutory form of cheating and the original common law offence are very similar, but there can be differences. For example, under English law it was held in R v Sinclair[2] that "[t]o cheat and defraud is to act with deliberate dishonesty to the prejudice of another person's proprietary right." However, at common law a great deal of authority suggested that there had to be contrivance, such that the public were likely to be deceived and that "common prudence and caution are not sufficient security against a person being defrauded thereby".[3]
Examples of cheating upheld by the courts have included fraudulently pretending to have power to discharge a soldier,[4] using false weights or measures,[5] and playing with false dice.[6]
Definition
[edit]In relation to the common law offence, no judicial definition of the offence was ever laid down, but the description of the offence set down in Stephen's Criminal Digest[7][8] is regarded as fairly comprehensive, and is cited as an authoritative definition by Stroud's Judicial Dictionary.
Every one commits the misdemeanour called cheating who fraudulently obtains the property of another by any deceitful practice not amounting to felony, which practice is of such a nature that it directly affects, or may directly affect, the public at large. But it is not cheating, within the meaning of this article, to deceive any person in any contract or private dealing by lies, unaccompanied by such practices as aforesaid.[9]
Other statutory uses
[edit]A number of jurisdictions also have statutory offences relating to cheating in gambling. See for example section 42(3) of the Gambling Act 2005.
England and Wales
[edit]The common law offence of cheating was abolished, except as regards offences relating to the public revenue, by section 32(1)(a) of the Theft Act 1968.
Cheating the public revenue
[edit]William Harkins said that "all frauds affecting the Crown and public at large are indictable as cheats at common law".[10] This passage was cited in R v Mulligan.[11]
Prosecutions under the common law are still pursued in England and can result in heavy sentences – significantly in excess of the maximum available to the courts for corresponding statutory offences.[12]
The following cases are also relevant:
Sentence
[edit]See R v Regan,[17] Attorney General's References (Nos. 88, 89, 90 and 91 of 2006), and R v Meehan and others.[18][further explanation needed]
Cheating at play
[edit]This offence was formally created by section 17 of the Gaming Act 1845. The current English legislation on cheating in betting is found in s. 42 Gambling Act 2005.
Going equipped for cheat
[edit]In section 25 of the Theft Act 1968, the word "cheat" meant an offence under section 15 of that Act.[19] The said section 15 created the offence of obtaining property by deception. The Fraud Act 2006 replaced these offences with new ones using different terminology.
References and notes
[edit]- ^ In Florida cheating remains a criminal offence by virtue of Fla. Stat. § 775.01 which provides that English common law crimes are crimes in Florida, but a specific statutory penalty for cheating is supplied by Fla. Stat. § 817.29
- ^ R v Sinclair [1968] 3 All 241
- ^ Halsbury's Laws of England, 2nd ed., Vol IX, para 944 citing various older common law cases
- ^ R v Serlested (1627) Lat 202
- ^ R v Closs (1857) Dears & B 460
- ^ R v Maddocke (1619) 2 Roll Rep 107
- ^ Stephen's Criminal Digest, 9th Ed., 362
- ^ Harrison, Karen; Ryder, Nicholas (2016). The Law Relating to Financial Crime in the United Kingdom. Taylor & Francis. p. 203. ISBN 978-1-317-02602-0.
James Fitzjames Stephen, A Digest of the Criminal Law 9th ed. (Sweet & Maxwell:London, 1950, 362)
- ^ Stroud, Frederick (1890). The Judicial Dictionary of Words and Phrases Judicially Interpreted. Sweet and Maxwell, limited. p. 124.
- ^ William Hawkins. Treatise of Pleas of the Crown. Eighth Edition. Page 1322
- ^ R v Mulligan [1990] Crim LR 427
- ^ David Winch (14 July 2012). "17 year sentence for VAT carousel fraud". Bartfields Forensic Solicitors.
- ^ R v Hudson, [1956] 2 QB 252, [1956] 2 WLR 914, [1956] 1 All ER 814, 40 Cr App R 55, [1956] Crim LR 814
- ^ R v Mavji, [1987] 2 All ER 758, 84 Cr App R 34, [1987] Crim LR 39, CA
- ^ R v Redford, 89 Cr App R 1, [1989] Crim LR 152, CA
- ^ R v Hunt, [1994] Crim LR 747, CA
- ^ R v Regan, 11 Cr App R (S) 15, CA
- ^ R v Meehan and others, [2006] All ER (D) 105
- ^ Theft Act 1968, section 25(5)
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