"next generation" wrote in message
news:13bb0c45-0613-43b9-8770-9b88d6f14fd4@e23g2000prf.googlegroups.com...
> 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. :)
I've acted for both in my time. But your previous post says that the
defendant has to prove his honest belief. Wrong. Woolmington v DPP [1935]
AC 462 , or haven't you done that yet?
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