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R v Rai (1999) The Times, November 10

Dishonesty – Deception by Silence – Fraud

Facts

In June of 1996 the defendant, Rai, applied to Birmingham City Council’s social services for a grant in order to adapt the bathroom in his home for his elderly mother.  The council approved a grant of £9,500 in March 1997.  The defendant’s mother died in July of that year.  Rai remained silent towards the council regarding his mother’s death and the council were unaware of her death until after they had completed their work by October 1997.  The defendant was charged with deception contrary to s15(4) Theft Act 1968 and with obtaining services by deception contrary to s1 Theft Act 1978.  Prior to trial, counsel for the defendant asked the judge to rule on whether or not silence or inactivity could give rise to deception under the relevant provisions.  After the judge declared that they could, Rai pleaded guilty.  This was appealed.

Issue

Whether the trial judge was right in ruling that silence or inactivity could constitute a ‘deception’ under s15(4) Theft Act 1968 and s1 Theft Act 1978.  Whether fraud could be committed by an omission or required a positive act of the defendant.  Whether the defendant had in fact made a positive representation that continued.

Held

Rai’s appeal was dismissed.  The trial judge was correct to rule that silence could constitute a ‘deception’ because the defendant’s conduct, as a whole, constituted an ongoing course of deception and a representation that his mother was in fact alive.  Once his mother had died, he can no longer have had the intention that she would benefit from the works done to his bathroom and at this point he must have formed a new intent.  Therefore, applying DPP v Ray [1974] AC 370, failing to notify the council constituted a positive acquiescence and a straightforward deception.


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