On Mar 25, 10:00 pm, "Janitor of Lunacy" wrote:
> "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?
Indeed I said, "The burden of proof is thus on the defendent to prove
why he had that belief (that the owner had consented or would
consent)." As the holding of this belief on a valid reason would be a
adequate defence.
I refer you to Lawrence v Metropolitan Police [1972] 2 ALL ER 1253 HL
"It is not neccessary for the prosecution to prove that the property
was taken without the consent of the owner."
Also R v Fernandes [1996]1 Cr App R 175 CA
"A person in possession or control of anothers property, who deals
with it in a manner which s/he knows is risking its loss may be
regarded as having the intention to permanently deprive."
Therefore the case is central on why the defendent had the belief that
he could use the bike in that way. |