Challenging a Police Warning

[Guest]

Long story short. Old guy next door to me died. Family in clearing the house say help yourself to things from the garden that belonged to him. I take a few things including a set of stones he laid last year for my garden. Neighbour on the other side reports me to the police for theft. There is an investigation involving questionning me and the housing association (both houses were HA) and a few days ago the police turn up to my door and issue me with a warning, based on "substantial evidence"!

 

I initially thought that if I rejected the warning I was going to automatically get arrested and charged and have to go to court again! But that's not how it works. If they had evidence they'd surely have just charged me?

 

So I have 23 days left to challenge it, in which case it's handed over to the PF to make a decision on whether to press charges. At this current time I would imagine they are not going to due to the virus, but I'm not sure where I stand and wondering if it's worth the risk.

 

I haven't done anything wrong. Woman across the road told me the family had said to take things from the garden that belonged to the old guy, and the stones were his property. So I had permission. Problem is getting a hold of the family who live down south. Woman across the road is waiting to hear back from them to arrange a time to collect some stuff she is keeping for them and has lost her number. So proving my side of the story might be problematic.

 

I also spoke to the family when there were here and they asked me if I wanted anything from the kitchen.

 

If I challenge this and it goes to court, surely the burden of proof is on the prosectution? They have to be able to prove I nicked them, right?

 

If the family aren't there to back up my side of the story then they are also not there to say I stole them. Trouble is once the keys are handed over everything then becomes the property of the housing association. I'm not getting much help from them and they say they don't get involved, but they are involved. I have put in a formal complaint to them about this anyway.

 

At the end of the day all I have ultimately done is moved stones from one property belonging to them to another (the one I live in) and I'm not going to be taking them when I leave. The laying of the stones has made a greater improvement to my garden in terms of access, compared with the difference to other garden which is minimal.

 

Anyone got any advice? Other than just take it on the chin, it's just a warning. If I end up in court again then this will count against me, and I want my name cleared out of principle.

 

 

 

 

[honeybee13]

Hi.

 

I see you mention the PF. Which part of the UK are you in please?

 

HB

[Guest]

Scotland. Should have mentioned that, sorry.

[Man in the middle]

Definition of Theft (from the Theft Act, 1968): 

 

Basic definition of theft.

(1)A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.

(2)It is immaterial whether the appropriation is made with a view to gain, or is made for the thief’s own benefit.

 

 

2“Dishonestly”

(1)A person’s appropriation of property belonging to another is not to be regarded as dishonest—

(a)if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; 

 

 

 

You had an honestly held belief that you were entitled to take the items. If you are charged, ask the neighbour across the road to provide a statement to the police explaining what she told you. Ideally of course get the family of the deceased to do the same. It is up to the prosecution to prove their case beyond reasonable doubt and from what you've said they'd struggle.

 

 

 

[Guest]

Thanks Man In The Middle. That's ultimately what I was going on as well. I was thinking, if I can't get a hold of the family or get the housing association to contact the police and say they are happy with things, that I'd ask my neighbour to provide the police with a statement prior to a challenge.

 

I'm just terrified of ending up back in court again, it's not a nice experience. And it will be a hassle and costly for me to get there, if the PF decide to prosecute.

 

I suspect the police are just chancing their luck at me buckling and taking the warning, because basically they've got nothing on me. I reckon, as a result of my previous they might want this hanging over me in case I get charged again with something and they can more easily get a conviction 

[Guest]

Finally got through to someone in the housing association who is willing to help with the matter and they are trying to get a hold of the family. They previously said they didn't have their number. So just a matter of waiting. I'm sure this will work and I feel more positive about it now.

[ericsbrother]

If you take a step back from this and then look at the whole story.

you wwere given permission to take the itmes and if htere wasnt an express permission for those exact itmes then there was a belief that the more general grant applied so no dishonesty on your part.

The police are informed by someoen that a theft has taken place so they visit and find you in possession of soem articles from that property. as they have no knowledge of any permissions they have taken a preemptory step and erred on the side of caution ( from their point of view) and decided that the burden of proof lies with you to show you didnt obtain them dishonestly.

Now if you dont accept the caution ( and I wouldnt) the they will have to gather evidence of whether a crime did indeed take place and whetehr there was any intent on your part.

Thatb will mena speaking to the relatives and others and then arresting you and doing a formal interview  and then offering what they have to the PF for consideration.

The PF will more than likely decide there isnt enough evidence to secure a conviction and so the whole thing will be dropped at that stage, if not before such as when the family say "oh yes, we said he could have anything he wanted ". As you say the burden pf proof lies entirely with them

 

What you cant do is accept the caution and then moan about it afterwards.

You say you are terrified of court so prepare yourself for the possibility of arrest to gain the authority to make investigations without a entry warrant and make sure that you have a solicitor on tap. That may well be the duty solicitor but if indeed you are arrested d not go down the no comment route as it would be silly for such a trivial thing and just drag things out. Tell them the truth as explained here. the police will have to go back to the complainant for further statements and that will show the lack of actual evidence.

 

if you are in the right never give up

[Manxman in exile]

I'm surprised the police are wasting their time on this, TBH.  They can't possibly have any evidence that you've acted dishonestly.  (I'm assuming that's an element of the offence under Scottish Law as in E&W?).

 

Presumably you told them that you had permission from the deceased's family and that the neighbour across the way had been a witness to that permission?  Didn't they speak to the neighbour?

 

I would get the neighbour's agreement now to make a statement if necessary.  I also cannot for one minute believe that the HA do not have contact details of the family of one of their tenants who has recently died, and that family have visited the property.  Of course they must be able to contact them.

 

Failing that, I'd ask the police for contact details!  (Certainly in E&W they have a duty to disclose any evidence that may assist the defence - I presume, but don't know, that it's the same in Scotland).  If they haven't got details then they haven't contacted them and they haven't investigated the offence properly, as presumably the family became the rightful owners once their relative died.  How are the police going to establish an offence if they can't establish the owners?

 

If this goes any further than a preliminary investigation (which I suppose the police are duty bound to do) I'd be inclined to make a complaint - unless you think you'd be causing yourself more trouble than it's worth - bearing in mind your previous.

 

But I'm not a lawyer and perhaps this is too serous for a web forum.  Have you got a local university where the School of Law provides a help clinic, or can you find one of those lawyers who'll give half an hour's advice for free?

 

Personally, I can't see the police taking it any further, but I may be wrong...

 

(In E&W, accepting a police caution is basically the same as an admission of guilt, but they don't prosecute you.  I don't know if it's the same in Scotland, but I wouldn't accept a caution in E&W unless 1. I was guilty, and 2. I had no chance of getting off in court).

[BankFodder]

I don't think there seems to be any question here about the facts all the law involved.

The only question is about evidence.

He said that you were given information by a woman who lives across the road. I would suggest that the first port of call is to visit her and to see if she is prepared to put something down in writing which supports what you say.

Secondly, you say the families elsewhere in the country. Is there any possibility that there is a postal redirection? I would write a letter – sent by post to the address, and point out exactly what has happened – the fact that you are grateful that you were given permission to take a few things – that this is what happened. List out what you took – and then explained that there seems to have been some misunderstanding and you have now been accused of theft. With a kindly drop you a short note to say that there has been no theft and that you acted with their permission.

Of course they may not be any postal redirection – but no harm in trying. Also you should keep a copy of any letter that you send.

You're quite right that the burden is on the prosecution to prove their case beyond reasonable doubt. If you can simply get the woman across the road to give evidence on your behalf, I would have thought that that would bring an end to the matter.

If I you I think of other ways of finding out the whereabouts of the family. You could go to the land registry online and do an online search and see in whose name is the property. I suppose that is probably the name of the deceased person – but you never know you might get a clue to where their relatives are.

The relatives must get involved at some point because presumably the house is empty and there are bill stacking up and council tax to pay – and the rest. Somebody's going to have to take notice soon.

Start racking your brains about how else to get in contact with them – but certainly send the letter that I have suggested. Even if it is not redirected, hopefully at some point somebody will find it on their doormat inside the house and forward it to the right people

I agree with our three legged friend above that it's pretty amazing that the police can be bothered to get involved in this kind of stuff – especially in the current crisis.

[Guest]

I'm amazed they have the time for this nonsense too, and why are they sending police round to my door over this during a pandemic.

 

I didn't accept the warning so much really, but perhaps in the eye of the law I did. I thought I was going to be arrested and charged automatically if I didn't, so it felt like I was being coerced into not challenging it. They asked me to sign a digital hand held machine and I declined on grounds of social distancing and they copper said he would just put a dot there instead. They told me I had 28 days to challenge it, so I don't view this as an admission of guilt at all. But the law might see it differently.

 

If the HA had done their job and contacted the woman across the road to corroborate my story and fed that back to the police then the police probably would have taken no further action. So I have complained about that and today someone from the HA called me to say they are are trying on my behalf to get in touch with the family.

 

ericsbrother, are you saying I should prepare myself for an arrest and a search warrant? Is this going to just cause more trouble than it's worth.

[Manxman in exile]

If it were me*, I'd challenge it.  In E&W a "caution" is basically the same as an admission of guilt and can appear on your criminal record.  (I'm not sure of the details but that is my understanding).  Whether that is also true of a Scottish "warning", I don't know.

 

I think ericsbrother was basically saying "hope for the best, but prepare for the worst".   So I would have thought it very unlikely the police would take it further - but they might...

 

I think you may have hinted you have "previous" with the police (apologies if I'm wrong) so you may decide it's not worth p'ing them off any more and poking the hornet's nest.  Or you may decide that's exactly what you want to do!

 

Hopefully you can get in touch with the family before having to decide.

 

(See if you can find a lawyer to give 30 mins free advice).

 

*In E&W I'd only accept a caution if (a) I was guilty AND (b) I was certain a court would convict me.  Whether you'd run that risk the same as me is up to you.   A lot of people would advise you not to.

[Guest]

It's basically something that will hang over me for two years, and if I happen to charged again in that time it will count against me. As you say it will be viewed as an admission of guilt. My experience with the courts last time is they are not interested in facts or truth, only ticking boxes. And I swear to god if the people in this sodding town keep on testing me then the potential to get arrested again is a possibility. I should have moved at the start of the year when I had the chance, but too many uncertainties and then a full scale global crisis.

 

I'm fairly sure the family will respond to the HA with the right information and that will be fed to the police and then it's just a matter of challening it and waiting. I don't know about E&W but in Scotland the fiscals have been told not to bother with less serious offences due the current impetus on social distancing, so that's going to work in my favour too.

 

The only thing is the family might say they "meant just the huts and garden equipment. Didn't say anything about the stones" in which case I have to argue that property is property and "stuff that belonged to" the old guy who lived there included the stones. I know, because I was there last year when he had them laid. Hopefully when questionned specifically on the stones, and in light of this they'll say no problem. I doubt very much they give a toss either way, and they seemed like nice folk when I spoke to them when they were here (they offered me things from the kitchen that time).

 

I also only technically moved them from one HA property to another and wasn't necessarilly claiming ownership of them. When I leave they will be left at this house. This house, or the one next door what difference does it make! I've only taken them and improved access to the back of my house so now both houses have decent access to the back. I did a good thing, for me and for the garden that's part of this house that I'm renting. I've worked my absolute balls of making this a really nice garden, and the HA staff member who called me was the same guy who was out next door yesterday and he has seen the work I've done and complimented me it.

 

I'll try and get a hold of a lawyer maybe towards the end of the week if no progress is being made. I'm sure they all must be desperate for something to do these days so shouldn't be too hard to get a hold of one.

[Guest]

Just recieved a call from the HA who have been in touch with the family and they have confirmed that they gave permission. So I will be putting in a challenge to this this week and I don't forsee any problems there.

[honeybee13]

That's great news. Please let us know how you get on.

 

HB

[Guest]

So I sent a letter in by recorded post months ago, and I recieved a letter back saying they would write back with their decision within 28 days. That was months ago and I've heard nothing...

[Guest]

So I still haven't heard anything back. My neighbour has been complaining about me again though apparently. Got a phone call from the housing association offering mediation again, I had no idea I'd been bothering them again. They're just making anything up they can to get me in trouble. I got a warning letter from the housing association, but they also told me on the phone to ignore it so they know what's going on here.

 

So I phoned the police up to explain to them that I think (I know) they are just trying to get me into trouble and making stuff up, or grossly exaggerating. Of course they weren't interested - no evidence. No evidence, apart from the false allegations he made about me stealing stones from a neighbour's garden last year. I asked them about the warning and apparently it has been upheld, because "they must have had evidence that I stole them"

 

The housing association contacted the stepdaughter who was clearing the house and she confirmed I had permission, and they called the police to tell them they didn't want any action taken. So they have done nothing to look into the allegations, and the only evidence they have is the word of this lunatic next door!

 

I'm absolutely at the end of my tether with all this, and my next course of action is to lodge a formal complaint about police misconduct.

 

Should I say something like "police misconduct" in the letter?

 

[Guest]

I just lodged a formal complaint on Police Scotland's website