On Mar 25, 9:36 pm, next generation wrote:
> 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).
I think we're just going to have to agree to disagree. Your using the
viewpoint of the defence, I the prosecution, as such will never
agree. :) |