On Mar 25, 9:26 pm, "Janitor of Lunacy" wrote:
> "next generation" wrote in message
>
> news:c9dcabc6-f685-4af7-b5d0-ab9b1598e804@s13g2000prd.googlegroups.com...
>
>
>
> > On Mar 25, 8:55 pm, "Janitor of Lunacy" wrote:
> >> "next generation" wrote in message
>
> >>news:32478d41-6b27-45eb-b0eb-e574640585af@e6g2000prf.googlegroups.com...
>
> >> > On 25 Mar, 19:59, "Janitor of Lunacy" wrote:
> >> >> "next generation" wrote in message
>
> >> >>news:24b8e35f-d5a2-4858-beaf-127f385f5d46@e6g2000prf.googlegroups.com...
>
> >> >> > for theft in law the police have to prove that you:
> >> >> > -dishonestly
> >> >> > -appropriate
> >> >> > -property
> >> >> > -belonging to another
> >> >> > -intenting to deprive the other
>
> >> >> > borrowing amounts to taking for his/her own use and is the same as
> >> >> > outright taking, regardless of whether you planned to return it.
>
> >> >> It only amounts to an outright taking if, when returned, the bicycle
> >> >> has
> >> >> lost what is called "its virtue"- e.g. taking a season ticket, using
> >> >> it
> >> >> up,
> >> >> and returning the actual piece of card itself still amounts to theft
> >> >> of
> >> >> the
> >> >> season ticket, because when returned it is useless. The same cannot be
> >> >> said
> >> >> of a bicycle, if it's still a bicycle when it is returned.
>
> >> > I'm sure I've already replied to this, but it hasn't appeared. Your
> >> > wrong on both counts. The intention to deprive happens because the
> >> > victim does not know who took the bike and for what purpose and has
> >> > not given consent for it to happen. Consent is the main issue. Unless
> >> > you knew the person and could argue implied consent, it's theft.
>
> >> Wrong again. The intention is in the mind of the perp and nothing to do
> >> with
> >> the victim.
> >> If he honestly intends to return it, it's not theft, and what the victim
> >> thinks is irrelevant.
>
> >> If he honestly thinks the victim would have consented had he known of the
> >> circumstances,
> >> it's not TWOC. See Theft Act 1968, Sec 12(6). Certainly a statement such
> >> as
> >> "you can borrow it whenever you like" raises an implied consent for a
> >> particular taking. "You can borrow it as long as you only go to town"
> >> likewise, but if the taker doesn't go to town, he commits the offence,
> >> see
> >> Singh v Rathour 1998 1 WLR 422 and McKnight v Davis 919740 RTR 209
>
> > TWOC is Section 12(1). Theft is 1(1) At the moment we're dealing with
> > a bicycle being taken. TWOC is therefore irrelevant at the moment. The
> > two acts applicable are theft or taking a bicycle which is s12(5)
>
> > Theft Act 1968, Sec 12(6) the defence states "A person does not commit
> > an offence under this section by anything done in the belief that he
> > has lawful authority to do it or that he would have the owner's
> > consent if the owner knew of his doing it and the circumstances of
> > it."
>
> > I very much doubt the owner would have consented to some guy trying to
> > ride away on his bike whilst drunk.Assuming he didn't, that leaves
> > lawful authority - Lawful authority is defined as "police or local
> > authority power of removal, or repossession by a finance company" (See
> > Police Legal National Database, Blackstones)
>
> > Please refer to R v Marchand and McAllister (1985) 80 Cr App R 361
> > "Intended use sufficent" - intent to ride away on the bike is theft.
>
> > Therefore the guy is guilty.
>
> Stop confusing theft and TWOC. There is nothing in the stated facts to show
> that there was an intention to permanently deprive, therefore theft is
> irrelevant. And your definition of "lawful authority" is defective. If a
> bicycle was in the path of an out-of-control car, there would clearly be
> lawful authority to move it, although no duty to do so.
>
> As to consent, whether the owner consents here is irrelevant, it is enough
> that the taker honestly believes that he would have consented, however
> irrational that belief. Whether an irrational belief is honest or not is a
> matter for the court or jury.
>
> As for the case you cite, it's not on BAILII so I can't take a look at it
> right now. But I strongly suspect that case was decided on its facts, which
> may or may not be on all fours with the ones we have here.
> And those facts don't come close to your precis, let alone the defendant's
> intention.
I'm not confusing the two. I clearly stated "TWOC is therefore
irrelevant at the moment" see my last post. The intention doesn't have
to be stated it can be implied. It's not my definition its the PNLD's
definition. As for the bike being moved out of the way of the car that
would be a defence under s12(6) - that he would have the owner's
consent if the owner knew of his doing it and the circumstances of it,
plus I doubt the CPS would find it in the publics interest.
As for the belief, if the owner consented clearly no crime has been
committed. Therefore it is relevant. The burden of proof is thus on
the defendent to prove why he had that belief (that the owner had
consented or would consent). |