Take the campaign from unlawful to illegal?

[zootscoot]

Is it time to assert our rights a little more forcefully and attempt to show that what the banks are doing is illegal. This surely would give the banks more reasons to act and repay everybody with out them having to take them to court.

This could be done through writing to the Director of Public Prosecutions asking them to review the legality of the banks and whether it would be worth their while taking out a criminal prosecution against the banks or bringing a private prosecution.

I'm sure there is something about criminal convictions in their operating licences?

An outline of the relevant law of theft is below. Do people think it is worth a shot?

S1. Theft Act 1968 a person is guilty of theft if they dishonestly appropriate property belonging to another with the intention to permanently deprive.

Dishonestly –

D is regarded as dishonest if their conduct is dishonest according to the ordinary standards of reasonable honest people and D realised that their conduct was by those standards dishonest. R v Ghosh

This is a question for the jury to determine – Is it likely that reasonable honest people would regard the banks conduct of charging unlawful penalties and refusing to return them on initial request when knowing that the charges are unlawful as dishonest?


Appropriates

Appropriation is assuming the rights of an owner (s.3 TA). By charging penalties they are assuming the rights of the owner by extracting money from their account.

S3 also includes where a defendant acquired the property innocently a later assumption can amount to theft. This would cover the situation if the banks did not know that the charges were unlawful at the time they took them, when they became aware of them being unlawful, their refusal to return them.

The fact that an owner consents to an appropriation does not prevent the action from amounting to an appropriation (R v Gomez) – Therefore the fact that customers agree to the terms and conditions will not stop the actions of the banks from amounting to an appropriation.

Property

The deducting a sum from a bank account may amount to a thing in action with in the meaning of s.4 TA.

Belonging to another

The banks may argue that the sums deducted lawfully belong to them. However, the legalities on penalty clauses indicate otherwise. Hence the charges have been paid by customers by mistake ie under the mistaken belief that they were lawfully due. Where a person receives property by mistake the property is still regarded as belonging to the giver (s.5(4).

With the intention to permanently deprive

The banks refusal to repay until being dragged through the courts is sufficient evidence in my view that they intended to permanently deprive

[hagenuk]

Interesting idea and I would think worth a letter or two.

However, once the shift is made from civil law to criminal law then the burden of proof shifts also from "on the balance of probability" to "beyond reasonable doubt" which means proof to a high degree of probability but not proof beyond a shadow of a doubt. (Miller v Minister of Pensions).

I think the problem then would be the issue of proving theft rather than a breach of contract or unfair contract terms.

The general principle, laid down in Woolmington v DPP is that the burden is on the prosecution to prove the facts essential to their case.

There is also the cost and complexity of a private criminal prosecution if the DPP could not be encouraged to act.

[zootscoot]

Theft is a triable either way offence although the chances are it would have a jury trial rather than magistrates, issues such as the standard of proof tend to get lost on juries (Research by Baldwin & McConville 1993).

The chances are that at least half if not more of those on the jury have suffered charges by the bank... the real question is whether the banks would want to risk it!

The victory would be in getting the banks to admit they were wrong and repaying charges without using the bullying tactics they have been to stop people reclaiming what is rightfully theirs. The threat of a criminal conviction may be what they need.

[hagenuk]

I think that the banks consider the costs of defending then utter capitulation before the court date to be merely a cost of doing business.

I posted this elsewhere some time ago as I believe another approach could be to contact the shareholders and inform them of the escalating costs associated with defending these claims.

Just one of my claims will increase by over £1000 due to the 8% interest and court costs because the bank are most unlikely to pay before I am forced to issue proceedings.

However, as stated above, the banks consider this an incidental expense and clearly are prepared to continue to file a faux defence before folding like a cheap umbrella at the last minute.

In summary I guess all we want is for the banks to realise that they should give us these charges back and stop charging at this level. Whether this is done via the criminal courts, civil courts or via shareholder pressure is not important as long as it does get done.

Of course, even with the refunds running at over £1.7M from this site alone it is still nothing compared with the Billions made anually in unlawful charges, so it is my view that nothing is going to change any time soon.

[JonCris]

A criminal prosection does not of course preclude a later civil action but each & every current civil action would be stayed.

However has anyone considered a group civil action. It would mean finding a lawyer expert in the field & we would all have to make a contribution to the intial pot until they had an opportunity to determine liability (probably by instructing counsel). After that they might be able to offer ATE insurance to cover us in the unlikey event we lose.

Whilst our numbers continue to grow & our presence grows individualy we are no more than a flea on an elephants back whereas if we go after them en mass they might then concede & start paying out without the need of claim getting to the court house door.........Any thoughts?

[zootscoot]

Whilst a stay would be put in place if there was a class civil action. The same would not be true in a criminal case as civil claims are not dependant on proof of theft.

A class action is a good idea if sufficient support is out there. All forms of pressure should be considered whether it be writing to your MP pressuring OFT FSA and the banking Ombudsman, lobbying Parliament and direct pressure on the banks.

I vaguely remember a few years ago a campaign against banks whereby people were encouraged to write 100 cheques for 1p on a certain date. The banks would be legally obliged to administer all the cheques. An administrative nightmare for the banks. Not sure how it went or even if it did go ahead in the end. Could be something to think about and get the media involved with. If nothing else will raise awareness of the site and issues. Make sure you have enough funds to cover the cheques - imagine the charges on that!

Also may be worth setting up on line petition if anyone has the know how?

[JonCris]

The money lenders would in the event of criminal charges seek to have all civil claims stayed on the basis that the evidence to establish the civil case could be subjudice. Anyway if a criminal prosecution was successful it could only help the civil case to follow.

A "Group" action was recently brought against a vehicle manufacture & it never made it to the courtroom as the defendant conceded & agreed to meet their legal obligations to those who where members of the Group

[JonCris]

just had a thought. How about letting the American Reglatory Authorites know that the Banks American Shareholders might be about to lose a bundle because of the banks unlawful acts in the UK.

After all Nat West ain't the flavour of the month just now

Orange jump suit anyone?

[Seany]

Originally Posted by zootscoot

An outline of the relevant law of theft is below. Do people think it is worth a shot?

S1. Theft Act 1968 a person is guilty of theft if they dishonestly appropriate property belonging to another with the intention to permanently deprive.

Putting my policeman's hat on, I don't beleive that it amounts to theft unfortunately. Firstly you would need to know which person's (or person) have commited the theft - I doubt that you could apply this simply to a company. Even if you applied this to the chief exectutive, or a particular director or person in the company, you would need evidence to show a court beyond reasonable doubt that when this person decided to implement these charges, they did it with the intention to dishonestly appropriate property from you.

Also, although money does fall within the definition of property, I do not know if this applies to funds held electronically (I will check). I beleive there may be a criminal offence of obtaining a transfer by deception. I will find the definition shortly, as I beleive you may be able to argue that if the banks knew the charges were unlawful at common law, by transferring the money out of your account they would therefore be in breach of this act as well (again you may need a 'person' involved as well).

Edit: Money held in a bank account is classed as property under the Theft Act.

[Seany]

I have just found the offence of Obtaining a Money Transfer by Deception (S15A of the Theft Act 1968.)

It appears to only apply when your account is in credit for some reason. Reason being is that when your account is in credit, your bank is technically in debt to you, and therefore this debt is classed as a 'thing in action'. Anybody who transfers money from your account to their own is assuming ownership over your balance and have 'appropriated a thing in action'.

Also, and more importantly to us on this website, by taking ownership of your balance, and disposing of it regardless of any legal rights you have, they then have intended to permanently deprive your money from you (because you have been decieved by being told it's lawful).

I would find it difficult to beleive that there is not an offence if your account is overdrawn, but as soon as I find anything I will post it here. I certainly think that the above is a good argument to take to the Director of Public Prosecutions, for people who have had charges come out of their accounts whilst in credit to the bank.

[Seany]

Theft (Amendment) Act 1996 (Crown Copyright)

Obtaining a money transfer by deception.

"Obtaining a money transfer by deception.

15A. - (1) A person is guilty of an offence if by any deception he dishonestly obtains a money transfer for himself or another.
(2) A money transfer occurs when-

• (a) a debit is made to one account,

• (b) a credit is made to another, and

• (c) the credit results from the debit or the debit results from the credit.

(3) References to a credit and to a debit are to a credit of an amount of money and to a debit of an amount of money.
(4) It is immaterial (in particular)-

• (a) whether the amount credited is the same as the amount debited;

• (b) whether the money transfer is effected on presentment of a cheque or by another method;

• (c) whether any delay occurs in the process by which the money transfer is effected;

• (d) whether any intermediate credits or debits are made in the course of the money transfer;

• (e) whether either of the accounts is overdrawn before or after the money transfer is effected.

(5) A person guilty of an offence under this section shall be liable on conviction on indictment to imprisonment for a term not exceeding ten years.
Section 15A: supplementary. 15B. - (1) The following provisions have effect for the interpretation of section 15A of this Act.
(2) 'Deception' has the same meaning as in section 15 of this Act.
(3) 'Account' means an account kept with-

• (a) a bank; or

• (b) a person carrying on a business which falls within subsection (4) below.

(4) A business falls within this subsection if-

• (a) in the course of the business money received by way of deposit is lent to others; or

• (b) any other activity of the business is financed, wholly or to any material extent, out of the capital of or the interest on money received by way of deposit;

and 'deposit' here has the same meaning as in section 35 of the Banking Act 1987 (fraudulent inducement to make a deposit).
(5) For the purposes of subsection (4) above-

• (a) all the activities which a person carries on by way of business shall be regarded as a single business carried on by him; and

• (b) 'money' includes money expressed in a currency other than sterling or in the European currency unit (as defined in Council Regulation No. 3320/94/EC or any Community instrument replacing it)."

(2) Nothing in this section has effect in relation to anything done before the day on which this Act is passed..

[JonCris]

Me too because in many cases the accounts only went into O/D because of the actions/conduct of the bank & it seem to me somewhat bizarre that the banks can escape criminal retribution simply by exacerbating the situation

[zootscoot]

Hi seany,

Thanks for that, I had considered the obtaining a money transfer by deception but thought that theft would be more appropriate for several reasons.


I agree that dishonesty is likely to be the hardest element to prove, although, dishonesty also has to be proved in accordance with the Ghosh test in all deception offences.

The definition of property given in s.4 Theft Act 1968 includes things in action. Although this is a complicated issue as you state and I'm not entirely sure whether it covers the situation. I've left my criminal law books in my office will look into later.

Also since the decision in Gomez which established that an appropriation can take place notwithstanding consent of the victim, most deception offences will also amount to theft with the added benefit that there is no need to prove deception.

Deception could be difficult to prove as this must be present at the time of appropriation. As the banks whip the funds out of your account and generally tell you later, the deception comes after the appropriation.

So it would be easier to go with theft rather than any of the deception offences.

Regarding applying criminal liability to a company - this is possible although quite difficult to prove. You have to establish that the directing mind of the company had the necessary mens rea (guilty mind) of the crime (Tesco v Nattrass). This is why it is so difficult to obtain convictions for corporate manslaughter and the like as generally the negliglent actions take place at a lower level. However, with the banks, their chief execs can hardly argue they were unaware of the charges and did not authorise or sanction these now can they?

You only have to read through the some of the threads on this forum to see that there are real victims here whose lives have deeply affected by the actions of the banks. If the chief execs had taken this money out of their pockets in the street they would have been locked up. Whats the difference does it make that they take this money with out even leaving their offices?

[Seany]

I fully agree that there are real victims (including me!), and I would like nothing more than to see all the banks face the justice they deserve. Unfortunately my legal knowledge is quite limited as I only work for the police part time.

Hopefully you would have a good argument that deception has been commited as they have been acting unlawfully and have published tems and conditions stating they would take these charges (which also states they abide by E&W / Scots law), they are leading you into the assumption that they are legal when they clearly are not.

Interestingly I read recently that HSBC are considering scrapping all of their charges and replacing it with a single charge for all customers who are overdrawn regardless of whether they are within their limit...