Guide section
The Fraud Act 2006 and CIFAS markers
The Fraud Act 2006 is the primary legislation covering fraud offences in England and Wales. It defines three main fraud offences, and understanding how they relate to CIFAS markers helps you assess whether the institution's allegation has any legal basis.
Guide section
The three fraud offences
- Section 2, Fraud by false representation: making a false representation dishonestly, intending to make a gain or cause a loss
- Section 3, Fraud by failing to disclose information: failing to disclose information you have a legal duty to disclose
- Section 4, Fraud by abuse of position: abusing a position of trust to make a gain or cause a loss
Guide section
What the law actually requires
All three offences require dishonesty. The test for dishonesty was established in the case of Ivey v Genting Casinos (2017): was the conduct dishonest by the standards of ordinary decent people? This is an objective test, it does not matter whether the person realised their conduct was dishonest.
For CIFAS marker complaints, this means the institution must be able to point to conduct that ordinary decent people would consider dishonest. Mistakes, negligence, poor judgement, and civil disputes do not meet this standard.
Key point
A CIFAS marker implies fraud. If the underlying conduct does not meet the legal definition of fraud under the Fraud Act 2006, the marker is recording inaccurate personal data.
Guide section
Using the Fraud Act in your complaint
Your complaint does not need to cite the Fraud Act directly, but framing the challenge around its requirements is effective. Ask the institution to identify which Fraud Act offence they believe was committed, what conduct constituted the relevant dishonest act or representation, and whether the evidence they hold establishes that the conduct meets the statutory definition.
In most Misuse of Facility cases, the institution cannot point to a section 2 representation or a section 3 disclosure failure. What they have is a transaction pattern. That gap between what the law requires and what the evidence shows is the basis of a strong challenge.
Start with the evidence
Before drafting anything, request your DSAR from the filing institution. Without knowing exactly what evidence they hold, you cannot know which legal arguments will be most effective.