Theft Act s.15A - Is there a route here?

[steven4064]

 

In short, you don't need to have actually paid the unlawful charges in order to reclaim them.

 

Sorry to jump into this thread so late in the day. Section 15 A(2) of the Theft (Amendment) Act 1996 defines a 'money transfer' as follows:

 

(2) A money transfer occurs when-

 

(a) a debit is made to one account,

(b) a credit is made to another, and

© the credit results from the debit or the debit results from the credit.

 

Thus, because the bank put a debit on your account and they will have put a corrresponding credit somewhere else (double entry accounting is a wonderful thing), under this definition they have transferred money from your account whether you have 'paid' it or not.

 

Section 15 A says that if such a transfer is by deception (which in these cases it probably is since they claim its a legitimate charge when it is not) then an offence has been committed with a maximum penalty of 10 years' imprisonment. Interesting, huh?

[jonni2bad]

Accounting is not my thing.....

 

Can you explain why there will need to be a 'credit' somewhere else? and where exactly would that be?

 

I'm not saying you are wrong, only that I don't fully understand it!

[Mindzai]

I would guess the credit would appear in whatever system or account the banks use to deposit charges to. When they are debited from your account they must logically be deposited into the bank's coffers somewhere. The money can't just 'disappear' from your account and end up nowhere.

[steven4064]

Mindzai is completely correct. To keep accounts balanced there must always be a corresponding credit for every debit (and vice versa). What it boils down to is that, if the bank have put a debit on your account then, as far as the law is concerned, they have transferred money from your account.

[jonni2bad]

OK, that being the case I will pass these comments onto the rest of the team and see if we can take this anywhere....

 

Well done and thanks.

[Guest The Terminator]

So in effect as well as the Banks committing theft they are also money laundering.Now that is interesting.

[Sparkie1723]

Some may have read on the RBOS forum of my fight with the RBOS, reading these threads may have somethng in to help me.

ona of the points in my case is.(I'll try to be brief)

I used to have a business account with RBOS on the advice of the branch manager I closed my business account down in feb 1998, in Jan 2000 the RBOS bounced two cheques ( 50 each) 4 times. this is only 1% of my dispute with them,

They say that the reason they bounced these cheues was that I did not have sufficient funds in my private account, so .......and get this " they debited the 4 x £25;00 charges to my business account" ( these charges are exactly the amount of the original cheques.)

The point is my business account had been closed for 21 months, I only had a private account, from then on I had more fights with them than I can count. I did not use that bank again I just stuck two fingers up to them.

They then applied interest to this £100 How can I use this section 15A in my case ......they applied a debit to an account that didnt exist and then 21 months later transferred this £195 back to my private account, inserted a default on my credit file for £195. which 30 months later had become £645

an interset rate of about 72%.

Where does this credit and debit come in here????.

I want as much ammo as I can get against them, beacuse I have now found out Dec 2006 that the account number that was registered on my credit file for 4 years was not my account number it was somebody elses

 

I must be able to use this theft act somewhere ???? Anyone any ideas?

 

This is a bit long ... but you want to see the rest of my case.

 

Sparkie1723

[lookinforinfo]

All banks have an account into which they transfer bank charges etc applied

to customers accounts. So they debit the customer £25 say, and credit their

"commission" account [or whatever they call it] with £25.

 

To answer your particular query Sparkle, I cannot see why they would bother to reopen your business account [even assuming they could legally do so,

which I doubt]. But whichever account they directed the cheques to is

irrelevant from the charging point of view. You were debited 4 times, so

there would have been 4 counter balancing credits added to their commission account and that is where theft occurred, if it occurred anywhere. You will notice that when they transferred the £195 and credited

your private account, at the same time they debited your business account £195. This though is obviously not theft as it is a transfer of money between

both of your own accounts.

[Sparkie1723]

To lookinfor info

 

That is just my point there was no transaction on my private account.

 

The RBOS stated to the ICO( during the ICO's investigation (still ongoing since April This year) in trying to justify their actions that Quote "as there was insufficient funds in the private account the charges were debited to the business account.........they could not debit these charges to an account that is non existent. It had been closed as I sAID 21 MONTHS EARLIER IN FACT FEB 1998

This £195:00 did not re-appear anywhere until they registered it with the CRA's,that is when they made this £100 in charges in january 2000 into £195:00 in June 2001. it never ever appeared in my private account until I walked away from the Bank.

The £2;00 O/D Balance I left suudenly became £195 O/D balance

 

Sparkie1723

[steven4064]

First of all, thanks for moving the thread Jonni2bad.

 

The point of my original post (in reply to a post on the 'old' thread) was just that the fact that the bank has put a charge on your account means they have transferred money fom your account even if you haven't got any money in it (ie if you are overdrawn).

 

To prove theft under this section of the act you would have to prove deception. In my opinion (and it is just an opinion as I have no legal background whatsoever so I could be wrong), if they claim that the charges are for a service when they know they are not "with the intention of permanently depriving [you] of [the money]" then that constitutes a deception.

 

Anyway, we have just sent our Initial Request to NW. If we get back one of their "service" letters, maybe I'll just try this on them and see what happens.

[steven4064]

And possibly more to the point, This act also creates an offence "dishonestly retaining a wrongful credit" (s24A(1))

[steven4064]

I've been looking into this a bit more and I think (remember my non-legal background....) the situation is as follows:

 

The theft Act 1968 defines theft as "dishonestly appropriating the property of another with the intention of permanently depriving them of it"

 

In the case of unlawful bank charges it's definitely the property of another (it's your money) and the banks certainly have no intention of giving it you back (if they can help it).

 

Under s15a(2) of the 1996 Amendment, the fact that they have put a debit on your account means that they have appropriated the money. It all then rests on whether they did it dishonestly.

 

Under s2(1)(a) of the the 1968 Act, it says that "A person’s appropriation of property belonging to another is not to be regarded as dishonest 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."

 

To prove a theft one would have to prove that the bank knew they had no right in law to make the debit. I suspect that would be difficult for 2000 charges, perhaps easier for more recent ones with all the publicity.

 

So, I don't think one could prove theft for the original charges.

 

However, s24A(1) of the 1996 Amendment says

 

"A person is guilty of an offence if-

 

(a) a wrongful credit has been made to an account kept by him or in respect of which he has any right or interest;

 

(b) he knows or believes that the credit is wrongful; and

 

© he dishonestly fails to take such steps as are reasonable in the circumstances to secure that the credit is cancelled."

 

 

We know that the charges are unlawful under Common Law. I presume that would also make them wrongful (but I will check up on that tomorrow).

The banks have to know (now) that the charges are wrongful even if they claim that they didn't know before.

Finally, any claims that the charges are reasonable, or for a service are a deception and therefore dishonest under the 1968 Act.

 

Therefore, I think (disclaimer as before) that although one could (probably) not claim theft for the taking of the charges in the first place, one almost cerainly can for the attempts by teh banks to not pay them back now they know they are unlawful.

 

Anyone else with any thoughts?

[lookinforinfo]

The Theft Act and its later Amendment are not the easiest of laws to pin

down, as I found with an ongoing Court case of my own.

What you mat have to take into consideration is that the banks do incur

costs in cases where they return cheques unpaid for example. As we do not

know what that cost is[indeed the banks may be unsure themselves], it may

be difficult to quantify just how much of the charge is theft [if it is at all]

and how much is legitimate cost.

 

However something that may exercise the minds of the bank directors is

that if found guilty of theft, the directors may face a maximum jail sentence of

ten years.

[Sparkie1723]

THanks a million lookinforinfo and steven 4064,

 

I dont know about exercising bank directors minds this info is certainly going to exercise mine, how I'm going to think of applying this to my case and the fact these charges /penalty fees were according to the RBOS applied to my closed business account.

 

I've already got them stumped on how they did this charge an account that wasn't there, they are spluttering a little on that one.

 

It was only when they inserted a default on my personal account that I had stopped using month before these charges re surfaced. 18months later

 

Sparkie1723

[Sparkie1723]

Steven 4064

 

First thought on what you gave me the RBOS in my case must have known they were wrongful because they were well aware that my BUsiness account had been closed since 1998, they were the ones who in the first place suggessted I closed it and used my private account from that date onwards,

I'll be thinking on that one anyone else any thoughts???

Sparkie1723

[steven4064]

Sparkie1723

 

You need someone with legal knowledge to advise you I think. What about if RBOS are just plain incompetent (heaven forbid!)? As lookingforinfo says

 

The Theft Act and its later Amendment are not the easiest of laws to pin down, as I found with an ongoing Court case of my own.

 

 

However something that may exercise the minds of the bank directors is that if found guilty of theft, the directors may face a maximum jail sentence of ten years.

 

 

I thought I might suggest this to the CEO of NW after we hear from them following our Initial Request. Even though the Act is 'difficult to pin down', would any CEO take the chance?

[PKea]

Section 15 A says that if such a transfer is by deception (which in these cases it probably is since they claim its a legitimate charge when it is not) then an offence has been committed with a maximum penalty of 10 years' imprisonment. Interesting, huh?

 

They are not decieving you with the ACTUAL transfer, they tell you they are going to take the charges from your account.

They are just not charging you an approriate amount.

 

Thats my take on the statement

[steven4064]

PKea

 

That's the conclusion I have come to. However, I think the not-paying-it-back issues is worth looking at

[lookinforinfo]

Sparkie1723

I thought I might suggest this to the CEO of NW after we hear from them following our Initial Request. Even though the Act is 'difficult to pin down', would any CEO take the chance?

 

The 64,000 dollar question.

Dilemma for the CEO-shall I pay back the bank charges out of bank profits,

which costs me nothing, or fight it and face a stretch at Her Majestys'

pleasure?

[steven4064]

Exactly (what would you do?)

[zootscoot]

As of next Moday s.15 will be repealed and replaced by the Fraud Act 2006:

 

http://www.opsi.gov.uk/acts/acts2006/ukpga_20060035_en.pdf

 

Now discuss that one!

[thecornflake]

I think an interesting angle would be this. It's an embellishment on steven4064's post, by officially informing the bank the charges are unlawful and futher charges will mean they risk prosecution under the Theft Act -

 

1) Write to your bank informing them that you believe charges are unlawful under (insert relevant laws here). Tell them that in addition to claiming back all previous charges any attempt to take further charges will be pursued under (I think this is the right part) s24A(1) of the 1996 Amendment -

 

"A person is guilty of an offence if-

(a) a wrongful credit has been made to an account kept by him or in respect of which he has any right or interest;

(b) he knows or believes that the credit is wrongful; and

© he dishonestly fails to take such steps as are reasonable in the circumstances to secure that the credit is cancelled."

 

Especially point (b), as now you have informed them the charges are unlawful they have to prove they neither know or believe the credit is wrongful. Otherwsie they are clearly committing an offense.

 

I wouldn't hurt to make sure they're aware of the maximum penalty for this offense either.

 

I'm thinking about adding something like this to my prelim letter, but I need to check out the Act properly and the Fraud Act 2006.

 

EDIT: Reading the first part of the Fraud Act-

 

2. Fraud by false representation -

 

(2) A representation is false if -

(a)It is untrue or misleading and

(b)the person making it knows that it is, Or might be, untrue or misleading.

 

From this it seems that it is an offence if you know it might be untrue (i.e. bank charges on T&Cs).

 

There is also an offence of failing to disclose information which is quite interesting. Some reading planned for tonight I think.

[law student]

If I may make an observation -

 

"(b) he knows or believes that the credit is wrongful; and

© he dishonestly fails to take such steps as are reasonable in the circumstances to secure that the credit is cancelled."

 

Especially point (b), as now you have informed them the charges are unlawful they have to prove they neither know or believe the credit is wrongful. Otherwsie they are clearly committing an offense."

 

Unfortunately this is not the case, it would be for the prosecution to prove that this was their state of mind. A troublesome affair in this situation as they would respond that they were merely following the contractual basis.

 

This is possibly one of the reasons why the banks have not sought to defend a case yet, should it not go their way then this whole avenue may well open up.

[thecornflake]

If I may make an observation -

 

"(b) he knows or believes that the credit is wrongful; and

© he dishonestly fails to take such steps as are reasonable in the circumstances to secure that the credit is cancelled."

 

Especially point (b), as now you have informed them the charges are unlawful they have to prove they neither know or believe the credit is wrongful. Otherwsie they are clearly committing an offense."

 

Unfortunately this is not the case, it would be for the prosecution to prove that this was their state of mind. A troublesome affair in this situation as they would respond that they were merely following the contractual basis.

 

This is possibly one of the reasons why the banks have not sought to defend a case yet, should it not go their way then this whole avenue may well open up.

 

I agree that this is a major barrier to using the theft act. However, I believe the Fraud Act to be much more likely to be effective for the reaosns I posted above.

 

They only have to believe it might be untrue or misleading, and covers implied representation, as in implying the charges are lawful. I think as soon as you specifically tell them you are contending the charges they have to believe they might be unlawful until this is proved otherwise. I posted a letter in my thread on the Fraud Act in the general section which I am planning on trying with my bank to see what they come back with.

[pobat]

= "A person is guilty of an offence if-

(a) a wrongful credit has been made to an account kept by him or in respect of which he has any right or interest;

(b) he knows or believes that the credit is wrongful; and

© he dishonestly fails to take such steps as are reasonable in the circumstances to secure that the credit is cancelled.

 

The banks can argue that they thought that the charges are lawful all they want. They damn well know that that under contract law that they can only recover costs. BCards agreement specifically states this in its agreement.

 

We will charge you for any losses or costs we have to pay if you break this agreement.

 

so the agreement to barclaycard can also go against them, if they can't prove to court that it costs £20 for for late payment etc. This shows that they intended to make a profit by over charging deliberately.