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Collecting debts CAN be a criminal offence


JonCris
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Administration of Justice Act 1970,(UK) which makes criminal the collection of civil debts by causing distress and public humiliation.

Section 40 of the Administration of Justice Act

“S40 Punishment for unlawful harassment of debtors.

 

  1. A person commits an offence if, with the object of coercing another person to pay money claimed from the other as a debt due under a contract he-
    • harasses the other with demands for payment which, in respect of their frequency, or the manner or occasion of making any such demand, or of any threat or publicity by which any demand is accompanied, are calculated to subject him or members of his family or household to alarm, distress or humiliation;
    • falsely represents, in relation to the money claimed, that criminal proceedings lie for failure to pay it;
    • falsely represents himself to be authorised in some official capacity to claim or enforce payment; or
    • utters a document falsely represented by him to have some official character, or purporting to have some official character which he know it has not.

[*]A person may be guilty of an offence by virtue of sub-section (1) (a) above if he concerts with others in the taking of such actions as is described in that paragraph, notwithstanding that his own course of conduct does not by itself amount to harassment.”

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No. This is part of Judicial Review. It can't be used against private companies

Plus you can't force a government department to prosecute

I am a lawyer, but I am an academic lawyer. I do not practice as a barrister or solicitor. You should consult a practising Solicitor BEFORE taking any Court or other action

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Yes but..... who will actually bring them to account? The Police, OFT, Trading Standards, ICO - there really isn't anyone willing to stand up and be counted.
As it's Criminal Law the onus would be on the police although you can bring a private prosecution for compensation as in Harassment case heard by England and Wales Court of Appeal (Civil Division) Decisions

 

Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46 (10 February 2009) see; http://www.bailii.org/ew/cases/EWCA/Civ/2009/46.html

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Guest HeftyHippo

pretty sure that was superseded (perhaps by CPUTR?)

 

think its been a standard part of some template letters and doesnt seem to have sacred anyone

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Despite what some DCA's have been claiming for the last few years, S40 Administration of Justice Act is still good law and has NOT been superseded or repealed, either expressly or impliedly.....

 

Even more worrying is that I know for a fact that at least once, Trading Standards and even the OFT have claimed that this entire Act (and specifically S40) has been repealed.... this is not true. And it really is worrying that the organisations charged with looking after the consumer in this industry are so completely unaware of what the current state of the law really is....

 

Cheers

UF

I am rarely around these parts any more. I only stop by when something has come to my attention that has sufficiently annoyed me so as to persuade me to awake from my nap and put in my two pence.

 

I am a final year law student; I am NOT an expert in law. All of my posts are just my opinion. I cannot be held responsible for any outcome whatsoever resulting from any person following the opinions or information contained within my posts. Always seek professional legal advice from a qualified lawyer.

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Guest HeftyHippo

The Consumer Protection from Unfair Trading Regulations 2008 DID amend the Administration of Justice Act 1970, as detailed below. Whether that affects prevents it being used in the way the OP has in mind, I don't know, but I did remember it being changed in some way.

 

My take on it is that it clarifies or makes a distinction between a 'person' and someone acting on behalf of a company or trading entity, but you'll have to decide for yourselves.

http://www.legislation.gov.uk/uksi/2008/1277/schedule/2/made

Administration of Justice Act 1970

 

13. In section 40 of the Administration of Justice Act 1970( 8 ) (punishment for unlawful harassment of debtors), after subsection (3) insert—

 

“(3A) Subsection (1) above does not apply to anything done by a person to another in circumstances where what is done is a commercial practice within the meaning of the Consumer Protection from Unfair Trading Regulations 2008 and the other is a consumer in relation to that practice.”.

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Thanks Hefty, I must admit that I hadn't seen that amendment - I haven't actually looked at the Act in any detail for a long time, I just checked if it had been repealed.

 

Thanks once again for clearing that up - my, humble pie tastes good.... but a little more knowledge gained again :)

 

Cheers

UF

I am rarely around these parts any more. I only stop by when something has come to my attention that has sufficiently annoyed me so as to persuade me to awake from my nap and put in my two pence.

 

I am a final year law student; I am NOT an expert in law. All of my posts are just my opinion. I cannot be held responsible for any outcome whatsoever resulting from any person following the opinions or information contained within my posts. Always seek professional legal advice from a qualified lawyer.

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Guest HeftyHippo

thats ok, UF thank you for taking it in good style.

 

The amendment is well hidden. Whether it makes any difference to our purposes I don't know - I've yet to decide if I actually understand it.

 

The 1970 Act talks about 'person', I think the CPUTRR is distinguishing between a person and an agent of a company or firm, ie, differentiating between the actions of an individual and a trading firm or company. Maybe closing possible getout by claiming that 'person' does not mean employee of a company so that the 1970 Act applies only to individuals and not firms.

 

That may be what Cabot and others have tried to use to claim that the 1970 Act doesn't apply, in which case knowing of the amendment will squash their claim.

 

I'll leave it to others to debate and decide exactly what it means though.

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No problem Hefty - I love law and just like to make sure all of us here at the CAG have the right stance on it!! On that note I always like to play "devils advocate" to a certain extent and if, in the process, I'm shown to be mistaken then at least my understanding has then been put right and we have, through discussion and debate, found the true status quo.

 

Having looked at the amendment etc I have to say I agree with you - the law now appears to distinguish between people persuing debts on a personal basis, in which case S40 Administration of Justice Act applies and on a commercial basis, in which case the CPUTR apply.

 

Cheers once again

UF

I am rarely around these parts any more. I only stop by when something has come to my attention that has sufficiently annoyed me so as to persuade me to awake from my nap and put in my two pence.

 

I am a final year law student; I am NOT an expert in law. All of my posts are just my opinion. I cannot be held responsible for any outcome whatsoever resulting from any person following the opinions or information contained within my posts. Always seek professional legal advice from a qualified lawyer.

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I don't see that interpretationI see the interpretation as if it's not unfair by CPTR, and recognised commercial practice - whatever that means- then it won't be unfair under AofJ Act

I am a lawyer, but I am an academic lawyer. I do not practice as a barrister or solicitor. You should consult a practising Solicitor BEFORE taking any Court or other action

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Read the act again it refers to misrepresentation to making false claims such as threatening a debtor with prison (as we know they often do) producing documents meant to deceive that its an 'official document otherwise there's nothing to stop a debt collector going about his business lawfully. Its the lies & deceit that amounts to criminal conduct under the law

 

Those harassed in this way should make more of it when fighting back

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"(3A) Subsection (1) above does not apply to anything done by a person to another in circumstances where what is done is a commercial practice within the meaning of the Consumer Protection from Unfair Trading Regulations 2008 and the other is a consumer in relation to that practice.”

 

Well, as Hefty pointed out, this amendment appears to effectively remove S40 AoJ from anything that we would be concerned with on this forum, in ordinary circumstances.

 

Obviously, in that case, the main other provision for the protection of consumers (debtors as consumers?) is contained within the CPUTR's.... and so if there is any breach in there that could be punishable, then that would be the provision under which trouble could loom for commercial collections??

 

Obviously all just in my humble opinion.... I'll see if I can find any case law....

 

Cheers

UF

I am rarely around these parts any more. I only stop by when something has come to my attention that has sufficiently annoyed me so as to persuade me to awake from my nap and put in my two pence.

 

I am a final year law student; I am NOT an expert in law. All of my posts are just my opinion. I cannot be held responsible for any outcome whatsoever resulting from any person following the opinions or information contained within my posts. Always seek professional legal advice from a qualified lawyer.

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Hi there

just goes to show there's always one law for the Banks and another for us mere mortals.

 

...............“(3A) Subsection (1) above does not apply to anything done by a person to another in circumstances where what is done is a commercial practice within the meaning of the Consumer Protection from Unfair Trading Regulations 2008 and the other is a consumer in relation to that practice.”.

 

Does this actually mean "Commercial practices" are immune from Unfair trading practices -- In some ways I suppose it must do because you could successfully argue otherwise that Microsoft shouldn't be allowed to supply Windows since "Joe Bloggs under the railway arches" could only supply some type of competing product to only 1 customer every five years.

 

 

Unless I've read this wrong this subsection essentially says that if DCA's etc are going about a "normal commercial activity" then Unfair trading practices DO NOT apply and therefore all the zillions of threads on this and similar forums about complaining to the OFT are a TOTAL waste of time -- irrespective of the actual competance or otherwise of the OFT -- another topic in itself -- and DCA's actually have a carte blanche to pursue "commercial activity" in any way they deem fit.

 

How is it this type of legislation gets passed -- I'm only an old fashioned traditional Gas Engineer and I can see the flaws in this piece of legislation -- how is it supposedly well educated and incredibly well paid people involved with designing and enacting the Law allow this type of B/S to get passed into law without an eyebrow being raised.

 

If this subsection really means what it appears to say then DCA's actually have NO BOUNDS whatsoever since the definition of "what is a legitimate commercial activity" is never likely to be resolved in a courtroom.

 

Cheers

jimbo

Edited by jimbo45
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Hi there

sorry to be a pest here -- but this is where we get into the niggldy niggldy pieces of the law.

 

Once you start talking about "Normal Commercial Practices" without any sensible legal definition of what these are then anything goes unless explicitly limited in a Court.

 

I know as an Engineer where we are used to dealing with Real solutions to a problem the Law is a vague instrument capable of having many interpretations -- all of which *could* be correct even if they are at odds with each other-- there must surely be SOME set of legislation which commercial companies have to follow in pursuing their activities and if they step outside these boundaries then they must be breaking some set of laws and therefore would be accountable.

 

Cheers

jimbo

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Hi JonCris..... how would S40 AoJ come into play for a commercial organisation such as a DCA, when S40(3A) expressly excludes them from the application of S40(1)??

 

I can't emphasise enough that I am learning as I go along on this one - Hefty Hippo has already taught me some new and valuable knowledge today!!

 

But I can't see how S40 can be of use to us with DCA's anymore, given that S40(3A) is now in force?

 

Cheers

UF

I am rarely around these parts any more. I only stop by when something has come to my attention that has sufficiently annoyed me so as to persuade me to awake from my nap and put in my two pence.

 

I am a final year law student; I am NOT an expert in law. All of my posts are just my opinion. I cannot be held responsible for any outcome whatsoever resulting from any person following the opinions or information contained within my posts. Always seek professional legal advice from a qualified lawyer.

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Jimbo:

 

Yes. The Consumer Protection From Unfair Trading Regulations apply to commercial practices. Also, the Protection From Harassment Act can, I believe, be used in certain circumstances.

 

Cheers

UF

I am rarely around these parts any more. I only stop by when something has come to my attention that has sufficiently annoyed me so as to persuade me to awake from my nap and put in my two pence.

 

I am a final year law student; I am NOT an expert in law. All of my posts are just my opinion. I cannot be held responsible for any outcome whatsoever resulting from any person following the opinions or information contained within my posts. Always seek professional legal advice from a qualified lawyer.

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Hi there

Thanks for your time -- To us non Lawyers trying to grasp some of these concepts is not the easiest process - probably why a lot of these guys make good money.

 

However at least I learned today that some parts of the Law and Quantum Physics share common properties.

 

In Quantum physics a particle can be in TWO (or more) places at once or the outcome of a question is that ALL answers are not only possible but are TRUE and occur AT THE SAME TIME -- so as in law conflicting answers can BOTH be correct given the interpretation of a particular piece of Law.

 

Obviously more to study here but thanks for the time and explanation.

 

I still feel (made a couple of other threads on the "criminalisation" of DCA's) that eventually we will nab at least ONE of these people and then we've got a precedent to go for the rest.

 

Cheers

jimbo

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