OK, here's my draft of the clarification of Fraud (in as simple of a form as possible and no phrase "Common Law" in it at all.
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Kiwi's request:
I would like the Court to review the fraud law. Specifically the elements required but more than that I would like the Court to delve into the mens rea of "intention" and discuss what it believes is necessary to prove an "intentional deception".
What specific elements are required to prove fraud? (In the Court's opinion)
What sort of intention is necessary to prove fraud? Is it a high (almost unattainable) level? Is oblique intention enough? Should the RA perhaps include a mens rea of "recklessness" in its definition?
Would a statement of "I believe" be enough to negate any finding of intention?
Does the Court believe that such a use of intention is appropriate in this online gaming context? *If not, does the Court recommend reform?
Is the fraud law inappropriate in a case of defamation (as arguably occurred in TNP v Grosse)?
(This list is by no means, exhaustive)
As a hint to the current Court, I am going to have to prosecute another one of these fraud cases shortly (whether I want to or not) and I need to know a bit more than "yeah we don't think the intention is there".
So this is abundantly clear, the idea of this review is to provide a detailed "how-to" for future AGs / Defence counsel. I had hoped that TNP v Grosse may have had one positive outcome in that it achieved this but I was sadly disappointed.
Thanks for your time,
Kiwi
Attorney General
The North Pacific
Fraud in TNP Code:
Section 1.3: Fraud
11. "Election fraud" is defined as the willful deception of citizens with regards to the candidates running, the time and venue of the elections, or the requirements and methods by which one may be eligible to vote or run for office.
12. "Fraud" is defined as an intentional deception, by falsehood or omission, made for some benefit or to damage another individual.
First, we have to look at the definition of Fraud as is relates to Section 1.3 of The North Pacific Legal Code. In a pure sense of the word, and in keeping with the text of TNP Code pertaining to Fraud, Fraud can be concisely defined as such:
“A false representation of a matter of fact—whether by words or by conduct, by false or misleading allegations, or by concealment of what should have been disclosed—that deceives and is intended to deceive another so that the individual will act upon it to her or his legal injury.”
Proving Fraud:
Fraud must be proved by showing that the defendant's actions involved five separate elements: (1) a false statement of a material fact,(2) knowledge on the part of the defendant that the statement is untrue, (3) intent on the part of the defendant to deceive the alleged victim, (4) justifiable reliance by the alleged victim on the statement, and (5) injury to the alleged victim as a result.
This specific definition of Fraud meshes exactly with the way Section 1.3 is written in terms of the wording and intent of the law in question.
The specific elements defining Fraud contain nuances that are not all easily proved.
First, not all false statements are fraudulent. In order to be fraudulent, false statements must relate to a material fact. It should also substantially affect a person's decision to pursue a certain course of action. A false statement of fact that does not bear on the specific issue (in this instance, the specific criminal charges) at hand is not considered fraudulent.
Second, the defendant must know that the statement is untrue. A statement of fact that is simply mistaken or is a mistaken perception or mistaken conclusion, is not fraudulent. To be fraudulent, a false statement must be made with intent to deceive a victim (whether an individual or group of individuals). This is the easiest element of fraud to prove, once the falsity and materiality of the false statement or statements are proved, because most material false statements are designed to mislead.
Third, the false statement must be made with the intent to deprive the victim of some legal right.
Fourth, the victim's reliance on the false statement must be reasonable. Reliance on a patently absurd false statement generally will not give rise to fraud; however, if the intended victim or victims are particularly susceptible to being defrauded and if the defendant knew and took advantage of their condition or abused their trust, then fraud can be considered to have been committed for all intents and purposes.
Finally, the false statement must cause the victim or victims some real injury that leaves him or her in a worse position or state than he or she was in before the fraud.
A statement of belief is not a statement of fact and thus is not fraudulent. Such a statement may not be true, it is not a statement of fact, and a reasonable person (presuming that person is reasonable) would not be justified in relying on it. However, the simple insertion of a disclaimer such as, “I believe” or “I think” into a deliberately misleading statement would negate the ‘statement of belief’ if the addition of such a phrase was a deliberate attempt by the defendant to avoid charges of fraud. This is where specifically mens rea might come into play in the sense of the defendant attempting to take advantage of a victim’s sense of reason or trust. Such a breach of trust could be proved, more or less, by the victim’s admission that belief in a fraudulent statement was based upon the victim’s trust in the defendent. Intention, in this context, is equally applicable in terms of on-line gaming as it is in real life. There is no reason to believe that one’s intents are any more or less relevant in on-line gaming or real life. Intent is intent in any world real or virtual in the same way that cause and effect equally apply. If intent doesn’t apply in on-line gaming, then intent is irrelevant and no crime could be committed in any circumstance were that the case (since under mens rea intent is required unless we take a purely strict liability approach which would be unwise in the sense that very little would get prosecuted because one would be required to ignore anything but a very narrow interpretation of any law and very little would ever get successfully prosecuted at all at best).
Oblique Action would be better replaced with the term Oblique Intention: the result (of an action) is a virtually certain consequence or a 'virtual certainty' of the defendant's actions, and that the defendant appreciates that such was indeed the case. Proving Oblique intent would involve making a determination that such a result of an action would be reasonably obvious to any reasonable person and that the defendant was of reasonable and rational mind.
Malice of forethought on the part of the defendant also comes onto play.
We must also take into account the element of ‘Presumption of Innocence’ as provided for in The North Pacific Bill of Rights under Article Seven thereof in proving any case:
7. When charged with criminal acts, Nations of The North Pacific shall have a fair, impartial, and public trial before a neutral and impartial judicial officer. In any criminal proceeding, a Nation is presumed innocent unless guilt is proven to the fact finder by reasonably certain evidence. A Nation may be represented by any counsel of the Nation's choosing. No Nation convicted of a crime shall be subject to a punishment disproportionate to that crime.
A defendant “is presumed innocent unless guilt is proven to the fact finder by reasonably certain evidence”, or, in other words, is presumed innocent until proven guilty beyond a reasonable doubt
On to the element of mens rea - “guilty mind”:
As an element of criminal responsibility, a guilty mind; a guilty or wrongful purpose; a criminal intent. Guilty knowledge and wilfulness.
An act alone does not create criminal liability unless it was accompanied by a guilty state of mind, hence ‘intent’. The required amount of a ‘guilty state of mind’ would necessarily vary according to particular criminal offenses, and as such, may require that a person act knowingly, purposely, or recklessly.
The term ‘reckless’ might be defined in criminal cases, as one actions being conducted in a careless manner to the point of being heedless of the consequences (gross negligence).
In relation to the Attorney General’s specific question, “Is the fraud law inappropriate in a case of defamation?”, the answer would be specifically yes in most instances involving defamation.
Defamation may or may not be criminal insofar as it relates to being an element of Fraud. If it is part of an attempt to defraud, then it is a part of Fraud, per se, but not Fraud in and of itself as a stand-alone charge.
Defamation can be defined as “Any intentional false communication, either written or spoken, that harms a person's reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person.”
Defamation is properly libel or slander and is not specifically Fraud which is why defamation is called defamation and fraud is called fraud.
Essentially, you can defame someone all day long and not be guilty of a criminal offense unless that defamation is conducted as part of the act of committing fraud. Defamation alone is not a criminal issue but rather a possible contributory element to a criminal action.
Defamation standing alone only as defamation cannot be prosecuted criminally as there is no specific law that handles defamation as a specific offense covering it under TNP criminal offenses. It can, however, be handled in a Civil manner, defamation being a conflict between two essentially ‘private’ parties if the Court is willing to handle it under its constitutional ability to handle ‘civil’ matters.
In response to your question pair “Does the Court believe that such a use of intention is appropriate in this online gaming context? If not, does the Court recommend reform?”
Suggesting legal reform, alterations and additions to the written legal code is not the purvey of the Court as such actions are constitutionally conducted by the Legislative Branch, such recommendations by the Court as an institution would be inappropriate.
