Are penalty charges illegal in Scotland? (long)

[Zeusie67]

***title should read 'criminal', instead of 'illegal'***

 

 

I posted this before in the Campaign section (this thread http://www.consumeractiongroup.co.uk/forum/campaign/24118-take-campaign-unlawful-illegal-3.html) , but it received scant reply. I think, and i hope, that this was because, the issue I raised related to Scotland and there are a lot less of us on here who are subject to Scottish Law than English Law.

 

I thought i'd post it again in the Scottish section, to see if anyone has any comments.

 

The post was about whether or not the application of unlawful charges might constitute a criminal act:

 

Quote:

Originally Posted by Zeusie67

Has anybody with a Scottish perspective considered the common law offence of extortion. It's definition in Scotland allowed Wheel Clamping to be declared a criminal act several years ago (Black v Carmichael 1992 SLT 897), while it still remained legal in England and Wales.

 

I think there might be some scope for arguing that the Banks are making threats (either implied or express) in association with demands for payments.

 

Best opprtunity to put this into action might be to incur a charge, but then close the account before they can remove the funds from the account. When they threaten to take legal action unless you pay the outstanding unlawful charge, they are, it might be argued, committing a criminal act under Scots Law.

 

Anybody else got any views on this?

I've looked a little bit more into this issue. Here's an excerpt from Sir Gerald Gordon's "bible" on the Criminal Law in Scotland (3rd Ed. Vol II pp 250-251):

 

"When can money be lawfully demanded under threat? Lord Thomson indicated in Silverstein (v HMA 1949 JC 160) that to demand money under threat was criminal unless the threat used was regarded as legitimate. This is to some extent circular- threats are criminal unless they are legitimate- but it serves to emphasise that the use of threats to obtain money is generally criminal, and will be so regarded unless it can be shown that in the particular case it was legitimate. Some Scots judges have gone further than this and suggested that any threat by A that unless B pays him money he will act to B's detriment constitutes the crime of extortion [three cases are referenced here] This, however, goes too far, and it is neccessary to consider in what circumsctnes money can be legitimately demanded under threat. Generally speaking, one may say that if either the threat or demand is in itself illegitimate, there will extortion [emphasis added]; if both are legitimate in themselves the use of the threat to enforce the demand may not be criminal, provided that the threat and the demand are linked in a way recognised by law as appropriate....it is not extortion to threaten to sue for a due debt if it is not paid.

 

...

 

Legal Process. Legal Process is a recognised form of pressure, but there are circumstances in which a threat by A to sue B may amount to extortion. It is suggested that it is extortion for A to threaten to sue B for a non-existent debt unless B pays £x, whether or not A is entitled to £x from B [emphasis added]. A threat of legal process is legitimate only where the threatened action is directly related to a legitimate demand."

 

It appears that it is also important to establish that the Banks knew that their demands were extortionate.

 

In view of the fact that English registered Banking institutions are making demands for money against persons domiciled in Scotland, and Scottish registered Institutions are making threat from Scotland against individual in all parts of the UK, in respect of unlawful (or illegitimate) charges, I would argue that these action falls within the definition of the crime of extortion in Scotland, provided by Sir Gerald Gordon and are prosecutable as criminal acts under the Common Law.

 

In case you've never heard of him, here is a link to an article about Sir Gerald Gordon in the Scotsman Newspaper a few weeks ago:

 

Scotsman.com Living - Judge, sheriff, teacher, author: honouring Sir Gerald Gordon's lifetime achievement

 

All we need to do now is find a willing complainer and persuade the Lord Advocate in Scotland that the Banks are committing extortion, and that it is in the public interest to prosecute them.

[Zeusie67]

Anyone?

 

Bueller?

 

I guess I'm beating my own drum on this one.