Stopping charges under the Fraud Act 2006?

[thecornflake]

This is an idea from the Theft Act thread on the legalities section. I thought I'd post it here to increase chances of someone more legally minded and intelligent reading it and giving their thoughts. Mods please move or delete if this counts as a double post.

 

For reference a link to the Fraud Act 2006 is here -

http://www.opsi.gov.uk/acts/acts2006/ukpga_20060035_en.pdf

 

Reading section 2 of the Fraud Act -

 

2 Fraud by False Representation

 

(1) A person is in breach of this section if he -

 

(a) dishonestly makes a false representation and

(b) intends by making the representation -

 

(i) to make a gain for himself or another or

(ii) to cause loss to another or to expose another to a risk of loss

 

(2) A representation is false if -

(a) it is untrue or misleading and

(b) the person making it knows that it is, or might be, untrue or misleading

 

(3) "Representation" means any representation as to fact or law, including a respresentation as to the state of mind of -

(a) the person making the representation or

(b) any other person

 

(4) A representation may be express or implied

 

(5) for the purposes of this section a representation may be regarded as made if it (or anythign implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention)

 

 

So the basic idea is to notify your bank that you believe (as do a lot of other people) that penalty charges are unlawful under various laws whether as a direct penalty or as charges for a service and now that you have informed them of this any attempts at further charges will contravene the Fraud Act and be a criminal offence which will be reported to the authorities.

 

This differs from s15 of the Theft Act (I think) in the phrase 'might be' in subsection 2b.

 

The only matter I'm not so sure about is how charges are a 'representation'. However, as it can be implied, putting them in the T&Cs implies they are legal.

 

Also I think section 5 would relate to them telling their system to take the fee out of your account.

 

As soon as an investigation was started for an offence we would find out the bank's costs unless they find a way round disclosing them, as this would be needed to determine whether they were unlawful (to prove subsection 2a). However they couldn't worm their way out of court with a settlement and it's a criminal offence which means the directors face a prison sentence.

 

Thoughts on this?

[meagain]

Part of the problem is that the banks may subtly change their tactics in an effort to not fall foul of this new legislation, safe in the knowledge that whatever becomes a crime today they could not have been guilty of yesterday.

[thecornflake]

Part of the problem is that the banks may subtly change their tactics in an effort to not fall foul of this new legislation, safe in the knowledge that whatever becomes a crime today they could not have been guilty of yesterday.

 

I do only intend to use this to attempt to stop new charges from now on. I think the original Theft Act is more difficult to use as you need to prove they knew the charges were unlawful, and the Theft Act would apply to any charges before the Fraud Act replaces the relevant sections. I'm sure they will change wording on T&Cs and their tactics but at least it will keep them on their toes.

[thecornflake]

I have drafted a rough letter along the lines of what I intend to send (the Fraud Act comes in on 15th January this year). Comments would be most welcome. I haven't filled in the points of law under which charges are unlawful, I can do that later.

 

This is taken from an overall letter I am sending about my account being in dispute, which is why it is very, er, to the point shall we say?

 

Addressed to the customer relations centre (and copied to the CEO of the bank just in case he actually reads his mail) -

 

ACCOUNT No xxxxxxxx

By First Class Recorded Delivery.

 

Dear xxxxxxx,

 

I believe that adding any further penalty charges to my account after the date of receipt of this letter (as this letter has been sent first class recorded post I will determine date of reciept by means of the Royal Mail tracking information) would constitute a breach of section 2 of the Fraud Act 2006 under the following points -

 

1) It is a breach of the act to make a false representation as defined in section 2 and intend by making the representation to either make a gain for youself or others, or to cause loss to another or to expose another to a risk of loss.

 

2) The Act includes provision for the 'representation' mentioned above to be either express or implied (section 2, subsection 4)

 

3) Due the large amount of claims and surrounding publicity, in addition to myself making yourselves aware of this fact by means of this letter, it is my understanding that under section 2, subsection 2b of the aforementioned you either know that your representation of penallty charges are, or might be, untrue or misleading in that they are represented as lawful terms of a contract based on your terms and conditions when they are in fact believed to be unlawful under

 

4) A person who is guilty of fraud under this act is liable -

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or to both);

(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years or to a fine (or to both).

 

5) Under section 12 of the act if an offence under this Act is committed by a body corporate and the offence is proved to have been committed with the consent or connivance of—

(a)a director, manager, secretary or other similar officer of the body corporate, or

(b)a person who was purporting to act in any such capacity,

he (as well as the body corporate) is guilty of the offence and liable to be proceeded against and punished accordingly.

 

Therefore any further penalty charges levied on the above account will result in the relevant authorities being contacted with the intention of prosecution for the offences listed above.

 

Have a nice day,

 

The Cornflake.

 

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As ever, comments are welcome.