Theft by the banks ??

[andy099]

Hello friends ,I was thinking !! As the banks have taken money from us unlawfully then surely this it theft and therefor a criminal matter for the police?? Any thoughts ??Andy099 .

 

(Woolwich)Preliminary letter £1076.03 sent 21/07/06 lost by Royal Mail.

9/8/06 £515.00 offered = refused.

(Capilal one G/F)Preliminary letter £160.00 sent 2/8/06 .

(Aqua) Data Protection letter sent 03/08/06 .

(Capital One)Preliminary letter £160.00 sent 8/8/06 .

[Guest NATTIE]

Theft is taking something that isn't rightfully yours without your permission or consent. Banks have breached a contract. I don't think a burglar could be said to have breached a contract when he steals your TV. So the answer is No it is not a criminal matter but it is a civil matter.

[kano24]

Dishonestly

Appropriates

Property

Belonging to Another

With the intention to permanently deptrive.

 

The above as per Section 1 Theft Act 1968

 

All 5 of the above points would have to be proven to have a crminal offence of theft. The banks are not dishonest in taking the money. They tell you that they are going to take it so no offence.

 

Hope this helps.;-)

[Glenn UK]

I think that in fact it could be theft, the difficulty is proving it!

 

FWIW i am not pursuing my former creditors on the basis they have breached a term of the contract, i am pursuing them primarily because they have taken money from me unlawfully.

 

The breach of contract i think is probably implied anway rather than explicit since the contract implies various things under english law but is not explicit. taking money from your account is part of your T&C, so taking it is not a breach.

 

The fact that the scale of the charges has been deemed unlawful and therefore unenforceable is not the same i think.

 

In other words if they had actually taken the cost of the work involved in dealing with our defaults then we wouldnt have a claim.

 

Re the dishonesty, the banks knew that the charges didnt reflect their costs then they were dishonestly taking money from you.

 

Its called fraud i think, many fraudsters tell their victims they are going to take money from them but its still fraud. but as I said the point is very difficult to prove, you have to find an individual and show they knew it was dishonest and get them to admit it.

 

If it was to go to crimial law as opposed to civil law the burden of proof would also change from, balance of probabilites to beyond reasonable doubt.

 

All in all proof is what counts and its unlikley to become availalbe to us.

JMHO

 

Glenn

[andy099]

ok-ok,I get the message,I was just wondering,Andy099:)

[Glenn UK]

LOL

 

Andy

 

you should be used to all the barrack room lawyers in here by now!!

 

As if anyone wants tea or coffee and you'll get a hundred lines of why one or other should be banned and the suppliers prosecuted for suplying a class a drug or something!! pmsl

[andy099]

(Woolwich)Preliminary letter £1076.03 sent 21/07/06 lost by Royal Mail.

9/8/06 £515.00 offered = refused.

(Capilal one G/F)Preliminary letter £160.00 sent 2/8/06 .

(Aqua) Data Protection letter sent 03/08/06 .

(Capital One)Preliminary letter £160.00 sent 8/8/06 .

 

[norvernrob]

When Yorkshire bank closed my account without any notice whatsoever, they also took the £8.13 that was in there, when I got my statements it is on there as a 'closing debit'.

 

What is that classed as?

 

Belonging to Another

With the intention to permanently deprive.

 

The above as per Section 1 Theft Act 1968

[JonCris]

I think that in fact it could be theft, the difficulty is proving it!

 

FWIW i am not pursuing my former creditors on the basis they have breached a term of the contract, i am pursuing them primarily because they have taken money from me unlawfully.

 

The breach of contract i think is probably implied anway rather than explicit since the contract implies various things under english law but is not explicit. taking money from your account is part of your T&C, so taking it is not a breach.

 

The fact that the scale of the charges has been deemed unlawful and therefore unenforceable is not the same i think.

 

In other words if they had actually taken the cost of the work involved in dealing with our defaults then we wouldnt have a claim.

 

Re the dishonesty, the banks knew that the charges didnt reflect their costs then they were dishonestly taking money from you.

 

Its called fraud i think, many fraudsters tell their victims they are going to take money from them but its still fraud. but as I said the point is very difficult to prove, you have to find an individual and show they knew it was dishonest and get them to admit it.

 

If it was to go to crimial law as opposed to civil law the burden of proof would also change from, balance of probabilites to beyond reasonable doubt.

 

All in all proof is what counts and its unlikley to become availalbe to us.

JMHO

 

Glenn

 

Yes Glenn. However if & it's a big if when the banks were deciding their charges it was found that they having sort legal advice & been told their action was unlawful but continued anyway then that I suggest WOULD constitute a criminal act worthy of police investigation.

 

Bit like the Water Companies who are currently under investigation for their alleged padding of the accounts.

[Glenn UK]

Yes Glenn. However if & it's a big if when the banks were deciding their charges it was found that they having sort legal advice & been told their action was unlawful but continued anyway then that I suggest WOULD constitute a criminal act worthy of police investigation.

 

Bit like the Water Companies who are currently under investigation for their alleged padding of the accounts.

 

I am not certain that you are quite correct, did they need to seek legal advice?

 

If they didnt seek advice but still thought their charges were illegal then it could still be fraudulent.

 

I think the matter of whether they sought advice or not does not detract from the act being unlawful, but it may change to illegal if they sought advice.

 

FWIW i doubt that they do anything in terms of changing T&C without passing it under their lawyers noses, all im saying is that in a sense it may be immaterial.

 

 

I have to say were all pontificating I do wonder if theres anyone with legal experience or knowledge that has a view?

 

GLenn

[JonCris]

Of course they did & either they where given bad advice or they ignored it They have loads of inhouse lawyers at their fingertips & that doesn't include many of their board members who will also be lawyers.

 

If they didn't know it was unlawful they should have. They have huge resources & are deemed in law to have "special knowledge" of all the rules/laws which govern their industry

 

They are imposing what they have admitted & referred to as penalty charges. Any company doing such a thing without seeking legal advice is not only failing in their "Fudiciary Duty" to the customer but are also not acting with "due diligence"

 

I have already said that we would have to find the smoking gun/memo/email etc to succeed but as the water companies have discovered it's not impossible & I'm not pontificating

[JonCris]

PS Almost forgot no one is going to admit to being a lawyer here

[Glenn UK]

LOL Chris

 

No one seriousely disputed the fact they knew, i just dont see whether they consulted their lawyers or not as a critical issue in determining if the charges are unlawful.

 

If youre not pontificating what are you doing? Are you a lawyer?

 

Is legal experience or training the same as being a lawyer?

 

FWIW i have legal experience but it has nothing to do with contract law and it I am not a lawer.

 

Sorry its getting late and Im only joking.

 

I do agree with much of what you say, it will be interesting to see where this all goes.

 

GLenn

[Rooster-UK]

Ignorance of the law is no defence.

[JonCris]

LOL Chris

 

No one seriousely disputed the fact they knew, i just dont see whether they consulted their lawyers or not as a critical issue in determining if the charges are unlawful.

 

If youre not pontificating what are you doing? Are you a lawyer?

 

Is legal experience or training the same as being a lawyer?

 

FWIW i have legal experience but it has nothing to do with contract law and it I am not a lawer.

 

Sorry its getting late and Im only joking.

 

I do agree with much of what you say, it will be interesting to see where this all goes.

 

GLenn

 

Yes it is important if you want to establish beyond doubt any criminal intent.

[Glenn UK]

i agree for criminal intent its critical

[PhantomReclaimer]

Dishonestly

Appropriates

Property

Belonging to Another

With the intention to permanently deptrive.

 

The above as per Section 1 Theft Act 1968

 

All 5 of the above points would have to be proven to have a crminal offence of theft. The banks are not dishonest in taking the money. They tell you that they are going to take it so no offence.

 

Hope this helps.;-)

 

I don't agree. It could be dishonest as, although they are telling you that they are taking it, they are telling you that they are taking it lawfully, which they aren't. Possibly not simple theft - maybe a deception offence, or both.

 

If a burglar enters you house and takes your TV but tells you he has a right to do it then he's still comitting theft.

 

P.

[andy099]

good point PhantomReclaimer,Im glad I started this thred.I think its great to hear everybodys point of view ,Andy099 .

[thewifeandI]

You can only assume that they took legal advice (from their tame banking specialist lawyers) and then decided on the balance of probabilities that no-one would notice so went ahead anyway.

[JonCris]

You can only assume that they took legal advice (from their tame banking specialist lawyers) and then decided on the balance of probabilities that no-one would notice so went ahead anyway.

 

Precisley!

[PhantomReclaimer]

Precisley!

 

And I agree. Taking something after having been advised that you probably won't get caught still dosen't render the taking legal.

 

What I didn't mention before is that to assess whether someone acted dishonestly or not you need to apply the test established in Ghosh (1980). That being a two part one; firstly, would the actions of the defendant be considered honest by ordinary, right thinking people and (as long as the first has been established), secondly, did the defendant realise that his actions would be considered dishonest by ordinary right thinking people? If both are established then dishonesty has been shown, even if the defendant didn't believe he was acting dishonestly according to his own understanding of what is honest.

 

Given that "honesty" is a matter of fact to be determined by the jury having regard to all the circumstances (and the fact that many of them will are also likely to have ben ripped off with unfair charges, no doubt), I wouldn't fancy my chances if I were trying to defencd my self against such an alegation.

 

P.

[JonCris]

Just think they would have to find a jury who's members had NEVER paid a banks unlawful charges.

 

As for Gosh I think that unless the banks decision makers can claim that they didn't ask for legal advice then they might get away with it

 

If they didn't seek advice as to whether their actions where lawful or not then they are at the very least guilty of acting without "due dilligence" In their positions as officers of the company thus making them liable for neg claims from the shareholders.

[Glenn UK]

Im sorry i think you are painting a black and white picture and the one thing i know about the law is it isnt black and white.

 

it would be reasonable to presume that the charges were lawful until a determination by a judge had defined them otherwise unless the act had an absolute element to it.

 

I dont think it does.

 

the 99 act (or at least the SI) includes a list of 'INDICATIVE AND NON-EXHAUSTIVE LIST OF TERMS WHICH MAY BE REGARDED AS UNFAIR', key words are indicative and may, i believe.

 

there is always a doubt about what an act means until its tested, even to an extent criminal law, for this to be proved as crimial you would have to proved beyond reasonable doubt that the penalty charges were in fact illegal.

 

I dont believe that has been tested yet, so what makes you think when the act was publisehd that anyone knew for certain what was legal or not?

 

This doesnt mean that subsequently the actions and charges wont be found to have been illegal, it does mean that its pretty difficult to prove now.

 

Since there is an element of debate about what the law actually means as there is no case law on this, then even if they discussed it with their lawyers, to show intent i think you would have to show that the lawyers advised them it was illegal in their viewpoint and the bankers continued regardless. Oh and for whats its worth i would be surprised if they were advised about somehting contentious if they didnt get a third party review because of the liasbility they were expopsing themselves to.

 

the fact that the banks are not taking this to court and allowing a judgement to be made on the unlawfullness or otherwise, may be seen as evidence that they dont think they will win and that may be so. But it still doesnt prove beyond a reasonable doubt that they banks are guilty of an illegal act.

 

Sadly there is a gulf between what we may think is right and proving it in court.

 

I do agree, i think that if it came to court in the right way it could come out the way we want. I defintely dont think its as clear cut as some people seem to think.

 

Its interesting to note that actions taken out in recent years in the field of health and safety have not yielded the results the public thought were fair and just precisely for the reason outlined above i.e. that the law is something to be interpreted until it gets before a court.

 

JMHO

 

Glenn

[PhantomReclaimer]

Glenn, I agree with you in part. Thing is though it is established legal principle at common law that penalty clauses are void. You cannot impose punitive charges for breach of contract, but only claim damages to compensate for actual loss. So, in that respect, there is no doubt. You only need toi show that these charges are penalties - which they are - and the principle applies to them.

 

Moreover Sec.4 UFCTA 1977 provides that a person acting as a consumer connot be required to indemnify anyone else against negligence. Yes, such an indemnity may be held to be legal but only if it's reasonable. These charges are very, very unlikely to be held to be reasonable for a variety of reasons but you have to remember that the Act basically starts from the premiss that "if your are a business who wants to enter in to a cntract with a consumer and you get stuffed through their negligence then though!"

 

P.

[Glenn UK]

I understand what you are saying about penalty chagres, the acts i have seen quoted in this respect are the 99 and 77 acts neither of which explicitly states that point unless ive missed it (which is quite feasible).

 

If there is case law or another act which defines this more precisely then id be pleased to know so i can read and modify my postion.

 

And as much as the banks are relying on the principle of providing a 'service' rather than a penalty charge i agree this doenst mean its not a penalty charge.

 

If th epoint about penalty charges is case law or a matter of statute sorry if ive not seen it. be pleased if im wrong means i can be more optimistic about any possible prosecution.

 

Glenn