United Arab Emirates v Allen

For the purposes of fraud by false representation, a representation must concern an existing or past fact, including a present state of mind. A promise about future conduct is not itself a representation, although it may contain an implied representation about the promisor’s present intention or circumstances.

The giving of an undated cheque as security for a long-term loan does not ordinarily represent that the cheque will be met if presented at any time during the loan. Nor does the borrower’s silence create a continuing representation where the original representations have already been acted upon and no continuing duty of disclosure exists.

The Government of the United Arab Emirates appealed against District Judge Purdy’s refusal to order the extradition of Amanda Jane Allen. She had been convicted in her absence in Abu Dhabi of issuing an uncovered cheque after a bank dated and presented an undated cheque supplied as security for a 20-year loan.

The district judge held that the conduct alleged did not amount to an extradition offence under the dual-criminality requirement and that the evidence was insufficient to establish a case requiring an answer. The central issue was whether supplying the undated cheque, and later failing to maintain sufficient funds, constituted fraud by false representation under section 2 of the Fraud Act 2006.

1. Appeal dismissed. The conduct described in the extradition request did not disclose an extradition offence under the dual-criminality provisions of the Extradition Act 2003.
2. The authorities concerning cheques given in payment establish an implied representation that existing facts are such that, in the ordinary course, the cheque will be met. That principle is context-sensitive. It does not apply in the same way to an undated cheque supplied as security for a 20-year loan, repayable by instalments through a credit-card account.
3. The bank could not reasonably have understood the respondent to represent that her financial circumstances at the time of the loan were such that the cheque would be met whenever a default occurred during the loan term. Default might result from illness, accident, unemployment or economic conditions, rather than dishonesty or an intention not to pay.
4. Under section 2 of the Fraud Act 2006, a representation may be express or implied and may concern a present state of mind. It does not include a bare promise as to future action. The distinction between a present representation and a future promise is particularly important where criminal liability is in issue. The statutory wording did not abolish that distinction.
5. The respondent’s original representations had been acted upon when the bank advanced the loan. She had undertaken to notify the bank of changes only between the loan application and the opening of the loan account. There was no principled basis for implying a continuing representation arising from later silence, and section 3 had not been relied upon because no continuing duty of disclosure was shown.
6. It was unnecessary to decide the prima facie case issue. Nevertheless, the papers contained no evidence from which dishonesty could be inferred. The appeal was therefore dismissed.

• High Court (Administrative Court): appeal by the Government of the United Arab Emirates under section 105 of the Extradition Act 2003 dismissed.
• Westminster Magistrates Court: the respondent was arrested and brought before the court following certification of the extradition request.
• District Judge Purdy: refused extradition and ordered the respondent’s discharge, holding that the dual-criminality and evidential requirements were not met.