Shown below are questions that we asked of the websites. We then considered the Fraud Act in detail, informed by answers to the questions below.
The Fraud Act
The Act (UK Government 2006) provides for a general offence of fraud, defined through the three ways of committing it, which are (1) by false representation, (2) by failing to disclose information and (3) by abuse of position. Each is dealt with in a separate Section of the Act. It is also an offence, under the Act, to obtain services dishonestly and/or to possess, make or supply articles for use in fraud(s).
Section 3 Fraud by failing to disclose information
We will consider Section 2 of the act (‘fraud by false representation’) later in this paper but at this point it is appropriate to briefly address Section 3 of the Act which makes it an offence to fail to disclose, to another, information for which there is a legal duty to disclose. For instance failing to disclose information in relation to a contract of insurance or a doctor failing to disclose to a hospital that certain patients referred by him or her for treatment are private patients, thereby avoiding a charge for the services provided. A legal duty to disclose information can arise as a result of a contract between two parties or because of the existence of a particular type of professional relationship between them; for example, a solicitor/client relationship. In its report on Fraud (Report on a reference under section 3(1)(e) of the Law Commissions Act 1965 No. 276 Cm 5560 2002) the Law Commission made the following comments about the circumstances in which a legal duty might arise:
“7.28 … Such a duty may derive from statute (such as the provisions governing company prospectuses), from the fact that the transaction in question is one of the utmost good faith (such as a contract of insurance), from the express or implied terms of a contract, from the custom of a particular trade or market, or from the existence of a fiduciary relationship between the parties (such as that of agent and principal).
7.29 For this purpose there is a legal duty to disclose information not only if the defendant’s failure to disclose it gives the victim a cause of action for damages, but also if the law gives the victim a right to set aside any change in his or her legal position to which he or she may consent as a result of the non- disclosure. For example, a person in a fiduciary position has a duty to disclose material information when entering into a contract with his or her beneficiary, in the sense that a failure to make such disclosure will entitle the beneficiary to rescind the contract and to reclaim any property transferred under it.”
Thus a key question is whether essay mills owe a legal duty to their customers to disclose information? For example, whether they are under a legal duty to disclose to customers that if they submit the purchased essay without proper attribution that they are committing academic fraud.
There is no obvious legal fiduciary relationship between the assistor and the customer (a fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence). Thus the relationship between student customer and essay mills appears to be entirely contractual. In the first instance therefore the legal duty on the part of the company is simply to comply with the terms and conditions of the contract which for the most part are set in the terms and conditions of business drafted by them. These do not routinely place a legal duty on the company to disclose information about the possible consequences of use by a student and in any event as discussed below they routinely warn against the submitting of the essay without proper attribution.
Section 3b (i) and (ii) of the Act go on to provide that an offence is only committed if by failing to disclose information the defendant “intended to make a gain for him or to cause loss to another or expose another to a risk of loss”. By failing to give information that use of the essay through submission at an educational institution may lead to an academic misconduct claim a company intends to make a financial gain, i.e. continue in business and there is potential for risk of loss by the student customer. However essay mills are not usually under a legal duty in the first place to provide this information and in fact as discussed below the terms and conditions of business usually specifically address this point through disclaimers in relation to use of the essay (Similarly an offence under section 4 of the Act – abuse of position - is effectively negated).
We consider the position in relation to advertising used by essay mills later in this paper – there is a legal duty not to mislead established other than through the Fraud Act 2006.
Making a false representation – section 2
This section of the Act states the following
“2 Fraud by false representation
A person is in breach of this section if he—
dishonestly makes a false representation, and
intends, by making the representation—
to make a gain for himself or another, or
to cause loss to another or to expose another to a risk of loss.
A representation is false if—
it is untrue or misleading, and
the person making it knows that it is, or might be, untrue or misleading.
“Representation” means any representation as to fact or law, including a representation as to the state of mind of—
the person making the representation, or
any other person.
A representation may be express or implied.
For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention)” (UK Government 2006).
Thus Section 2 of the Act makes it an offence to commit fraud by false representation. Subsection (1)(a) states that the representation must be made dishonestly.
The current definition of dishonesty was established in R v Ghosh 1982. (Campbell 1984) That judgment sets a two-stage test. The first question is whether a defendant’s behaviour would be regarded as dishonest by the ordinary standards of reasonable and honest people. If answered positively, the second question is whether the defendant was aware that his or her conduct was dishonest and would be regarded as dishonest by reasonable and honest people.
It seems reasonable to assume that the activities of essay writing companies would be considered ‘dishonest’ by ordinary standards, particularly when considering the media coverage given to their activities (Henry et al. 2014; Andrew Bomford BBC Radio 4’s PM programme). However it is by no means certain that the second limb of the test would be satisfied given the rationale and justification for essay writing services usually deployed by essay mills (for example, that they offer similar services to those offered by legitimate providers, such as librarians, or they supplement study skills support that may be lacking in educational institutions (Newton and Lang 2016)) and the terms and conditions of business (Table 1). However, given the aforementioned publicity around their activity, a claim that they were not aware that their conduct was dishonest and would be regarded as dishonest by reasonable and honest people is subject to legitimate challenge.
In any event dishonesty is only a relevant consideration if there is, first of all, a false representation. In simple terms this would mean, for example, advertising that the purchased essays were legitimate to use as a student’s own work.
Furthermore subsection (1)(b) of the Act requires for the offence to be made out that a person must make the representation with the intention of making a gain or causing loss or risk of loss to another. The gain or loss however does not actually have to take place.
Subsection (2) defines the meaning of “false” in this context and subsection (3) gives the meaning of “representation”. A representation is false if it is untrue or misleading and the person making it knows that it is, or might be, untrue or misleading. Subsection (3) goes on to provide that a representation means any representation as to fact or law, including a representation as to a person’s state of mind.
Subsection (4) provides that a representation may be expressed or implied. It can be stated in words or communicated by conduct. There is no limitation on the way in which the representation be expressed and therefore it could be written or spoken or posted on a website advertising essay writing services.
Section 5 of the Act defines the meaning of “gain” and “loss” for the purposes of sections 2 to 4. Under these definitions, “gain” and “loss” are limited to gain and loss in money or other property. The definitions are essentially the same as those in section 34(2)(a) of the Theft Act 1968 and section 32(2)(b) of the Theft Act (Northern Ireland) 1969. The definition of “property” which applies in this context is based on section 4(1) of the Theft Act 1968Footnote 1 which includes money and all forms of property including intellectual property.
Therefore in each case of a potential offence under sections 2-4 of the Act, the defendant’s conduct must be dishonest and their intention must be to make a gain or cause a loss, or the risk of a loss, to another. Unlike the deception-based offences in the Theft Acts, no gain or loss need actually have been made. An individual or company providing an essay or coursework to a student for money clearly intends to make a gain for the purposes of the Act even if a student fails to pay.
Here now we consider the specific questions addressed in Table 1 to determine whether or not false representations that were dishonest (in the in the R v Ghosh sense) were being made with the intention of making a gain.
Terms and conditions of business
All of the companies analysed made some sort of statement, in their terms and conditions, that essays supplied are to be used solely for ‘research purposes and for assistance only’ or use a variant of this form of disclaimer. Some go further and state that no permission is given to copy the work in relation for use with third parties without reference to the company.
With reference to the terms and conditions alone it cannot reasonably be argued that an individual or company is making a false representation for the purposes of the Act as they clearly present, in the terms and conditions, the services being supplied to student customers and the use to which essays may be put, although it has been demonstrated that every few consumers actually read online terms and conditions (Bakos et al. 2014). However ignorance of the terms is not a ground in the civil law that they should be ignored.Footnote 2 A degree of protection is given to consumers under the Consumer Rights Act (UK Government 2015) which applies a ‘fairness’ test to all ‘non-individually negotiated’ contracts. These give limited protection when agreeing to unfair terms by checking a box on a website relating to terms and conditions.
Some websites also carry advertising and exhortations designed to persuade and legitimise activity, for example statements to the effect that students need not ‘waste time’ doing the work themselves; the recent QAA report contained numerous examples of these (QAA 2016).
The test for potential liability under section 2 of the Act is whether or not the representation is untrue or misleading and the person making it knows that it is, or might be, untrue or misleading (italics are authors emphasis). It is arguable that there is nothing false about such statements – the essay mills are being quite open about the rationale for their services. As such the representations made by essay mills are not necessarily untrue but may be misleading in that they create an impression that essays may be used legitimately, albeit contradicted by the terms and conditions accepted by the student.
There has been significant publicity over the use of purchased essays by students and it is legitimate to suggest that those offering such services are aware or ought reasonably to be aware of this use. This is evidenced in part by the terms and conditions of some of the essay mills which acknowledge that the essays supplied may be submitted in some form by students as their own work subject to a disclaimer that proper referencing as to the source is made by the student.
Therefore a reasonable and honest person might well take the view that such advertising is misleading as it might cause a student to reasonably conclude that purchasing an essay and submitting it as their own independent work is a legitimate option, but when purchasing essays students are required to acknowledge by checking a box that they have read the terms and conditions of supply which usually contradict and clarify statements made by way of advertising. Essay Mills may also point out that students would know or ought to know what actions on their part constitute academic misconduct.
The Consumer Protection from Unfair Trading Regulations 2008 are designed to protect customers from false or deceptive advertising or advertisements that leave out important information. Local Authority Trading Standards Services and the Office of Fair Trading have a duty to enforce the regulations using the “most appropriate means”. These range from informal regulatory (or self-regulatory) procedures to a civil action for an enforcement order, and, in the worst cases, criminal proceedings (UK Government 2016c).
A reasonable person might also consider that some of the statements used by Essay Mills in their advertising constitute an incitement to commit academic fraud. However, as we explained previously, courts are reluctant to engage with plagiarism cases in Universities and academic fraud is not normally a criminal offence; the student falsely represents the work as his or her own but the immediate gain made by the student is academic credit and not money or property directly. However there is nothing in the section that requires the gain to be immediate and gain in terms of higher remuneration or salary may be made later but there is a question of whether this gain is too ‘remote’ – this ‘remoteness’ is a perceived weakness of the Fraud Act as currently drafted (e.g. see http://www.criminallawandjustice.co.uk/features/Fraudulent-Education).
In addition, although the objective test of dishonesty in R v Ghosh may be made out, the second aspect of the test (whether the student subjectively views the act of submission as dishonest) may be difficult to establish beyond all reasonable doubt particularly given the advertising adopted by essay writing companies. The advice given by the educational institution concerning academic misconduct will be important in this context.
Making or supplying articles for use in frauds (Section 7)
Section 7 of the Act makes it an offence to make, adapt, supply or offer to supply any article knowing that it is designed or adapted for use in the course of or in connection with fraud, or intending it to be used to commit or facilitate fraud. Section 8 extends the meaning of “article” for the purposes of sections 6 and 7 and certain other connected provisions so as to include any program or data held in electronic form. This should include an essay stored or supplied electronically.Footnote 3
The specifics of the section 7 offence is that a defendant:
makes, adapts, supplies or offers to supply any article;
for use in the course of or in connection with fraud;
knowing that it is designed or adapted for use in the course of or in connection with fraud (Section 7 (1) (a)) or
intending it to be used to commit or assist in the commission of fraud (Section 7 (1) (b).
“Knowledge” in Section 7 (1) (a) is a strict requirementFootnote 4 although in practice, the use to which the article can be put is likely to provide sufficient evidence of the defendant’s state of mind. Furthermore as noted above the publicity over student use of supplied essays would lead to a reasonable conclusion that a supplier of an essay has relevant knowledge for the purposes of the offence.
However the manufacture of articles that are capable of being used in or in connection with fraud but have other innocent uses will not fall foul of this section unless the manufacturer intends that it should be used in a dishonest way (Section 7 (1) (b)). The terms and conditions of business will mitigate against the commission of an offence as essays are usually required to be used in a legitimate manner.
Similar barriers would apply to the section 6 offence of possession of articles for use in fraud in which it must be established that the defendant:
This section is based on Section 25 of the Theft Act 1968. It must be shown that the Defendant had the article (essay) for the purpose or with the intention that it be used in the course of or in connection with an offence. Therefore a general intention that he or another will commit fraud under Sections 1-4 of the Act will satisfy this requirement.
In R v Ellames 60 Cr App R. 7 (CA) the Court of Appeal stated:
“In our view, to establish an offence under Section 25 (1) the prosecution must prove that the Defendant was in possession of the article, and intended the article to be used in the course of or in connection with some future burglary, theft or cheat. But it is not necessary to prove that he intended it to be used in the course of or in connection with any specific burglary, theft or cheat; it is enough to prove a general intention to use it for some burglary, theft or cheat; we think that this view is supported by the use of the word “any” in Section 25 (1). Nor, in our view, is it necessary to provide that the defendant intended to use it himself; it will be enough to prove that he had it with him with the intention that it should be used by someone else.”
Companies Act 2006
Section 7(2) of the Companies Act 2006 also is a further contraindication of the commission of an offence under the Fraud Act 2006 by a company providing essay writing services. This provides that a company must not be formed for an unlawful purpose.Footnote 5 The decision by the Registrar of companies to incorporate a company suggests in the first instance that the business of the company is lawful. That decision is subject to judicial reviewFootnote 6 and a certificate of incorporation is not conclusive evidence that all the company’s business is legal. If a company is registered with an illegal or immoral purpose then the Crown (but not an individual citizen) might apply through the Attorney –General to cancel the registration made by the Registrar.Footnote 7
Although companies that offer essay writing services may have been established prior to the coming into force of the Companies Act 2006 the requirement of incorporation for lawful purposes only is an established principle applying in respect of the incorporation of companies prior to this date. Thus at the time of incorporation the Registrar must have been satisfied that the essay writing companies were formed for a lawful purpose.
The conclusion drawn by the authors therefore is that the terms and conditions of business accepted by students (notwithstanding the protections given by the civil law) effectively negate or make it difficult to establish the elements of a criminal offence under the Fraud Act 2006.