Take the campaign from unlawful to illegal? - Page 3

jb79 · 7th September 2006, 18:45

Quote:

Originally Posted by joebloggs

The tell you in advance that they will charge you set amounts if you go overdrawn etc.

This is plain daft, a threat of physical violence followed up by the act does not make the act legal. Infact it agrivates the crime and depending on the context of the threat may be another crime as well.

All this proves is pre-meditation, how many minutes of meetings do you rekon are kept whilst discussing this?

meagain · 8th September 2006, 16:11

An issue that was raised previously is that of the rank and file staff at the bank.

Given that the bank is deliberately taking this money, this should be enough for something. They can argue "Oh, we didn't know it was unlawful", but (as we all know), ignorantia iuris haud excusat - ignorance of the law is no excuse.

As for individual staff, the argument that they were merely following orders with no knowledge of the legality of what they were doing is known as the "Nuremberg defence". For reasons of sensitivity, I will make no comment on the validity or otherwise of such a defence in the case of conspiracy or accessory to fraud.

Mistermind · 8th September 2006, 16:45

Bank staff also own credit cards, they understand the burden of unjustified and excessive charges.

We need a chorus, nay a battalion of whistle blowers from the inside.

jb79 · 11th September 2006, 19:59

Quote:

Originally Posted by meagain

As for individual staff, the argument that they were merely following orders with no knowledge of the legality of what they were doing is known as the "Nuremberg defence". For reasons of sensitivity, I will make no comment on the validity or otherwise of such a defence in the case of conspiracy or accessory to fraud.

This is good as we know what happened to the guys giving the orders, I feel that the application of the "Nuremburg Defence" is just the kind of safety net required to protect these halfwits from themselves.

tamadus · 12th September 2006, 00:40

Quote:

Originally Posted by JonCris

When you think about who really needs tha banks.

I realize society and how it functions daily has changed a great deal but all we would really need is an account with a debit type card & into which our income can be paid & DD's set up

Cheques are becoming reduntant as many retailers will no longer accept them.

Also anyone see the banks claim that chip & pin has reduced fraud. Absolute rubbish. The fraud has yet to filter through & many victims (as predicted) are being told that they must have given their pin to somebody. Which is difficult to disprove when a signature can't be produced.

Also those denied claims don't register. Chip & Pin is a monumental disaster & the banks know it.

It was only introduced so the banks could deny victims recompense.

The Yanks won't touch it. They still sign even when visiting this country

I fully agree JonCris and I tell this to everyone.

Chip and Pin was only introduced to reduce the amount of fraud claims being paid out on. In theory the retailer shouldnt touch your card so they have no idea even of the name on it. It doesnt reduce the possibility of a card being double read if the retailer handles it. IT just means that if a fraud does take place then you have given the pin number to somebody.- END OF CLAIM.

To tighten card security we should be using photo and signature.

Tamadus

meagain · 12th September 2006, 14:23

Quote:

Originally Posted by tamadus

To tighten card security we should be using photo and signature.

... and fork over more personal info to the banks!?

sazz · 12th September 2006, 23:14

Edited: I dodn't read the whole thread & added my two pence worth!
oops!)

PhantomReclaimer · 3rd October 2006, 14:41

(Un)Intelligent Finance have just charged a further £268 to my account and I am boiling with anger!!! They know damn fine that these charges are unlawful and that they are deceiving people into paying them. That being the case, I've just sent these two communications to them and the cops respectively;

"Further to our telephone conversations of today.

I am shocked and disgusted by your continual levying of unlawful and unjustifiable charges to my account. Your latest round of charges amounts to £268.

As I have pointed out to you today, and on previous occasions, these charges are unlawful penalties and, as such, are void in law. I have put this to you on several occasions, including repeatedly on the telephone today.
You maintain that they are not unlawful yet you are unwilling provide any evidence to me that refute my arguments or to back up your position. Neither have you ever provided evidence to me that the charges you levy in any way accurately represent losses caused to you by me.

I consider that the manner in which you have repeatedly presented these charges to me, and the circumstances under which I have paid them, - namely that they are fair, lawful and accurately compensate you - amounts to a deception on your part and that your taking of them also amounts to theft.
That being the case I am today making a formal complaint to the Police relating to offenses I believe you have committed contrary to Sections 1, 15 and 15(a) of the Theft Act 1968."

========================= ===============

"I would like to bring to your attention a matter relating to what I consider to be the criminal misappropriation of funds from my bank account by my bank.

You may be aware that banks and other financial institutions employ a regime of fees which they apply to customers accounts in the event of the customer exceeding a pre-arranged credit facility or for failing to maintain a balance sufficient for the payment of a direct debit, standing order or a cheque. My bank applies fees of £30 for being unable to pay a direct debit and £28 for exceeding my overdraft facility. During this year my bank, Intelligent Finance, has debited a total of £586 in such fees from my account. The bank maintains that the fees applied to my account are by way of compensation to them in relation to losses they allegedly incur from the above mentioned failings on my part.

It is a well established legal principle that contract clauses that require a party to the contract to pay a disproportionately high amount by way of compensation are to be regarded as penalties for breech of contract and are therefore void as they provide unjust enrichment to the other party. This has been the case since at least 1915. Also, the Unfair Contract Terms Act 1977, at Sec.4, provides that a party to a contract who is acting as a Consumer cannot be required to indemnify another against negligence.

It is only recently that I have been made aware of the unlawful nature of these charges and I am now in the process of claiming them back through the Courts.
However, I believe that the banks have known about the unlawful nature of these charges for some time. The Office of Fair Trading released a report relating to such charges in April 2006, this concluded that they were being levied contrary to Sec.4 UCTA 1977, and common law. In addition, no bank has ever revealed it's actual costs in relation to this type of charge so it is therefore impossible for a customer to be sure that the charge he is being required to pay does actually compensate for the banks losses.

The OFT's investigation was on going for some 2 years, I believe, and the banks were made aware of it during that time. In any event, it has been public knowledge since April 2006 that these charges are unlawful. Prior to this several senior executives of UK financial institutions were called to give evidence before a Parliamentary Select committee in October 2004.

My bank has repeatedly levied this type of charge on me and, until recently, I have agreed to them being debited from my account as I believed them to be fair in that they genuinely compensate for actual loss, and were lawful. I now understand that they are not lawful and almost certainly are grossly inflated in relation to the banks actual losses. I have made my position clear to my bank that I believe these charges are unlawful and currently have a Court action in progress to reclaim charges that were levied between January and June this year. The bank refuses to provide me with evidence that these charges genuinely do compensate them for loss that I have allegedly caused to them and refuse to refute the legal arguments I have put to them relating to their unlawful nature. They repeatedly tell me that the charges are fair and lawful yet flatly refuse to provide any evidence of this. However, they continue to levy these charges upon me and new charges have been applied to my account on 30th September 2006, after I have expressly told them that I consider them to be unlawful.

I believe that in making these debits my bank has committed offences of deception contrary to Sec.15 of the Theft Act 1968 in that I have been deceived into consenting to the charges through their being presented to me as being fair, lawful and an accurate representation of the banks actual loss. I also believe that they have committed an offense contrary to Sec 15(a) of the same Act, they having obtained a money transfer by deception.

In addition, I believe my bank has committed offences of theft under Sec.1 of the aforementioned Act in relation to these charges, in that they have dishonestly appropriated property from me and clearly intended to permanently deprive me of it at the time of the appropriation. This is especially true of those charges made for exceeding my overdraft facility which is entirely avoidable on their part."

========================= =

P.

meagain · 3rd October 2006, 14:57

Go for it. I'll probably be using the same line when I go to the Police station later to report the phonecalls I've received later. Of course, I don't entirely know what I'm doing there, since nobody will tell me whether I have a case or would just be wasting police time.

PhantomReclaimer · 3rd October 2006, 15:59

You wouldn't believe it but I've just had a couple of coppers at the door in response to my email - how efficient is that!!!

End result is that they can see my point but they aren't convinced that it's a criminal matter. I've explained that I think there are very good reasons as to why it is potentially criminal matter and they've gone away to study my letter.

P.

JonCris · 3rd October 2006, 19:24

I hate to say this but by todays standard would they know a criminal matter if they saw one.

Anway I hope I'm wrong & that their bosses let them go for it.

meagain · 4th October 2006, 12:25

If it makes a difference, despite the fact that we have potential breaches of the Theft Act, as well as the fact that I have told my bank to stop calling me yet they persist, and the rather rude tone of the call I received to close my account (was actually two calls - second was after I explicitly told the operator to sod off and never call me again!), meaning a case of harassment, I was told by the WPC at the station that it is "not a criminal matter". It's "official", harassment by telephone is apparently not a criminal matter anymore!

tamadus · 4th October 2006, 12:54

Quote:

Originally Posted by meagain

If it makes a difference, despite the fact that we have potential breaches of the Theft Act, as well as the fact that I have told my bank to stop calling me yet they persist, and the rather rude tone of the call I received to close my account (was actually two calls - second was after I explicitly told the operator to sod off and never call me again!), meaning a case of harassment, I was told by the WPC at the station that it is "not a criminal matter". It's "official", harassment by telephone is apparently not a criminal matter anymore!

In regard to enforcement of the harassment phone calls I think you need to contact Trading Standards as the enforcement agency. We need to look at any amendments to the Wireless Telegraphy Act to find out if it's been downgraded from a criminal offence or not.

Mistermind · 4th October 2006, 13:43

I believe it party B persecutes party A over issue C,
not because of issue C but to purely to get back at party A for any excuse,
e.g. retaliation over whistleblowing or trade union activities,
this constitutes victimisation as well as harassment.

JonCris · 7th October 2006, 08:41

Quote:

Originally Posted by meagain

If it makes a difference, despite the fact that we have potential breaches of the Theft Act, as well as the fact that I have told my bank to stop calling me yet they persist, and the rather rude tone of the call I received to close my account (was actually two calls - second was after I explicitly told the operator to sod off and never call me again!), meaning a case of harassment, I was told by the WPC at the station that it is "not a criminal matter". It's "official", harassment by telephone is apparently not a criminal matter anymore!

Oh dear. You will note I predicted as much.

Why oh why do these police officers make statements about something of which they clearly know nothing.

I suggest a little more basic training in the law & a little less of lying around on beanbags at training college discussing diversity wouldn't go amiss.

Zeusie67 · 30th November 2006, 12:02

Has anybody with a Scottish perspective considered the common law offence of extortion. It's definition in Scotland allowed Wheel Clamping to be declared a criminal act several years ago (Black v Carmichael 1992 SLT 897), while it still remained legal in England and Wales.

I think there might be some scope for arguing that the Banks are making threats (either implied or express) in association with demands for payments.

Best opprtunity to put this into action might be to incur a charge, but then close the account before they can remove the funds from the account. When they threaten to take legal action unless you pay the outstanding unlawful charge, they are, it might be argued, committing a criminal act under Scots Law.

Anybody else got any views on this?

Glenn UK · 22nd January 2007, 22:18

Quote:

Nor is it necessary to prove deceit; a fraud can be perpetrated by secrecy and without deception. The Law Commission in its Report on Conspiracy to Defraud (1994) acknowledged the scope of the offence as embracing both “obtaining by giving a false general impression” and “corruption not involving consideration”. More interestingly, the offence can comprise an agreement to do something that would not be a crime if committed by a single individual.

Taken from the Timesonline What would a reasonable and honest person make of this? - Law - Times Online

I was curious about the reprt mentioned has anyone seen it, I wondered it it had been discussed or not?

Glenn

Battleaxe · 24th January 2007, 09:50

Maybe we should contact David Omererod and and Tony Shaw and get their opinion of our debate regarding theft by the banks?

Enron · 6th February 2007, 18:55

Decided to see what the CPS thought of this issue, and whether they would be willing to prosecute on the issue of bank charges. (can put up a scan if needs be)

Received what I believe to be a fairly standard response. However it does outline that the CPS will consider any investigations bought to them by the police.

So the whole issue of turning unlawful to illegal in relation to penalty charge cases is getting the police involved.

As such you are most likely looking at a big case to make these actions criminal.

Zeusie67 · 27th February 2007, 15:38

Quote:

Originally Posted by Zeusie67

Has anybody with a Scottish perspective considered the common law offence of extortion. It's definition in Scotland allowed Wheel Clamping to be declared a criminal act several years ago (Black v Carmichael 1992 SLT 897), while it still remained legal in England and Wales.

I think there might be some scope for arguing that the Banks are making threats (either implied or express) in association with demands for payments.

Best opprtunity to put this into action might be to incur a charge, but then close the account before they can remove the funds from the account. When they threaten to take legal action unless you pay the outstanding unlawful charge, they are, it might be argued, committing a criminal act under Scots Law.

Anybody else got any views on this?

I've looked a little bit more into this issue. Here's an excerpt from Sir Gerald Gordon's "bible" on the Criminal Law in Scotland (3rd Ed. Vol II pp 250-251):

"When can money be lawfully demanded under threat? Lord Thomson indicated in Silverstein (v HMA 1949 JC 160) that to demand money under threat was criminal unless the threat used was regarded as legitimate. This is to some extent circular- threats are criminal unless they are legitimate- but it serves to emphasise that the use of threats to obtain money is generally criminal, and will be so regarded unless it can be shown that in the particular case it was legitimate. Some Scots judges have gone further than this and suggested that any threat by A that unless B pays him money he will act to B's detriment constitutes the crime of extortion [three cases are referenced here] This, however, goes too far, and it is neccessary to consider in what circumsctnes money can be legitimately demanded under threat. Generally speaking, one may say that if either the threat or demand is in itself illegitimate, there will extortion [emphasis added]; if both are legitimate in themselves the use of the threat to enforce the demand may not be criminal, provided that the threat and the demand are linked in a way recognised by law as appropriate....it is not extortion to threaten to sue for a due debt if it is not paid.

...

Legal Process. Legal Process is a recognised form of pressure, but there are circumstances in which a threat by A to sue B may amount to extortion. It is suggested that it is extortion for A to threaten to sue B for a non-existent debt unless B pays £x, whether or not A is entitled to £x from B [emphasis added]. A threat of legal process is legitimate only where the threatened action is directly related to a legitimate demand."

It appears that it is also important to establish that the Banks knew that their demands were extortionate.
In view of the fact that English registered Banking institutions are making demands for money against persons domiciled in Scotland, and Scottish registered Institutions are making threat from Scotland against individual in all parts of the UK, in respect of unlawful (or illegitimate) charges, I would argue that these action falls within the definition of the crime of extortion in Scotland, provided by Sir Gerald Gordon and are prosecutable as criminal acts under the Common Law.

In case you've never heard of him, here is a link to an article about Sir Gerald Gordon in today's Scotsman Newspaper:

Scotsman.com Living - Judge, sheriff, teacher, author: honouring Sir Gerald Gordon's lifetime achievement

All we need to do now is find a willing complainer and persuade the Lord Advocate in Scotland that the Banks are committing extortion, and that it is in the public interest to prosecute them.

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