Monthly Archives: May 2015

Uncategorised

Cause of Action: Does your “mortgage” company have a valid one?

In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party.[1] The term also refers to the legal theory upon which a plaintiff brings suit (such as breach of contract, battery, or false imprisonment). The legal document which carries a claim is often called a Statement of Claim in English law.

To pursue a cause of action, a plaintiff pleads or alleges facts in a complaint, the pleading that initiates a lawsuit. A cause of action generally encompasses both the legal theory (the legal wrong the plaintiff claims to have suffered) and the remedy (the relief a court is asked to grant). Often the facts or circumstances that entitle a person to seek judicial relief may create multiple causes of action. Although it is fairly straightforward to file a Statement of Claim in most jurisdictions, if it is not done properly, then the filing party may lose his case due to simple technicalities.

There are a number of specific causes of action, including: contract-based actions; statutory causes of action; torts such as assault, battery, invasion of privacy, fraud, slander, negligence, intentional infliction of emotional distress; and suits in equity such as unjust enrichment and quantum meruit.

The points a plaintiff must prove to win a given type of case are called the “elements” of that cause of action. For example, for a claim of negligence, the elements are: the (existence of a) duty, breach (of that duty), proximate cause (by that breach), and damages. If a complaint does not allege facts sufficient to support every element of a claim, the court, upon motion by the opposing party, may dismiss the complaint for failure to state a claim for which relief can be granted.

The defendant to a cause of action must file an “Answer” to the complaint in which the claims can be admitted or denied (including denial on the basis of insufficient information in the complaint to form a response). The answer may also contain counterclaims in which the “Counterclaim Plaintiff” states its own causes of action. Finally, the answer may contain affirmative defenses. Most defenses must be raised at the first possible opportunity either in the answer or by motion or are deemed waived. A few defenses, in particular a court’s lack of subject matter jurisdiction, need not be pled and may be raised at any time.

 

Source: https://en.wikipedia.org/wiki/Cause_of_action

 

The question therefore posed is this …

What valid cause of action is required for the “mortgage” company to make a claim against you?

ie what elements are required to make that a complete cause of action whereby the Statement of Claim being filled in will be an honest one …

 

#VOOIDMORTGAGE

 

Uncategorised

Document “False” if circumstances absent

This law report from The Times Tuesday November 28 2000 is about forgery and counterfeiting documents/instruments and presenting the contents of documents as being true when the circumstances in the making of the documents are false or absent.

 

PAGE PIC To DISPLAY ASAP

 

COURT OF APPEAL
Criminal Division
Published November 28, 2000
Attorney-General’s Reference (No 1 of 2000)
Before Lord Woolf, Lord Chief Justice, Mr JJustice Alliott and Mr Justice Bell
Judgement November 20, 2000.

—————————–

An instrument was false for the purposes of section 9(1)(g) of the Forgery and Counterfeiting Act 1981 if it was a document which required, before it could be made or altered, that there should exist or should have existed a set of circumstances and these circumstances did not exist or had not existed.
The court of Appeal, Criminal Division, so help in a reserved Judgement on a reference by the Attorney-General under section 36 of the Criminal Justice Act 1972 on the following point of law:
“What is required to be proved for an instrument to purport to have been made, so as to establish falsity for the purposes of the Forgery and Counterfeiting Act 1981 and accordingly as to whether or not the tachograph record sheet in the insiant case was capable of being a false instrument.”
Mr Nicholas Hilliard for the Attorney-General: Mr Barnaby Waylen, assigned by the Registrar of Criminal Appeals, for the defendant.
THE LORD CHIEF JUSTICE, giving the judgement of the court said that on March 6, 1998 the defendant coach driver was engaged on a journey from the United Kingdom which involved passing through Belgium.
The record which the tachograph produced indicated that between 16.43 and 17.24 hours he was taking a break from driving as required by law and therefore the vehicle was being driven by another driver. The vehicle was shown to have travelled 11 kilometres during that time.
In fact there was only one driver in the vehicle and accordingly the record was inaccurate. His record showed that he had been having a break, when that was not the case, because of the manner in which he had operated the tachograph.
Either he operated a switch on the tachograph recorder which should only be operated when he was not the driver, or he inserted the disc on which the tachograph was used by a non-driver.
The defendant pleaded not guilty to forgery of a tachograph record sheet contrary to sections 1 and 9 of the 1981 Act. The judge ruled that the defendant’s conduct in producing a false record could not amount to the offence charged. The prosecution then offered no evidence and the jury acquitted the defendant.
Section 9(1)(g) of the 1981 Act dealt with instruments which purported to have been made or altered on a date or at a place “or otherwise in circumstances in which” they were not made or altered.
R v Donnelly Park [1984] [WLR 1017] concerned a written valuation prepared by Donnely of sheduled items of jewellery which stated that he had examined the jewellery and that the figures given represented their insurance value. There was no jewellery to be valued and the valuation was intended to defraud an insurance company.
On the appeal against his conviction for forgery, Donnelly contended that a jewellery certificate was not capable of being a false instrument.
Lord Justive Lawton said (at p-1019): “the words coming at the end of paragraph (g) ‘otherwise ‘in circumstances ** expand its ambit beyond dates and places to any case in which an instrument purports to be made when it was not in fact made.
“This valuation purported to be made after the appellant had examined the items of jewellery set out in the schedule .. That which purported to be a valuation after examination of items was nothing of the kind.”
The approach in Donnelly could be adopted without going so far as to make any instrument which told a lie about some alleged past fact a forgery. It was of the essence of a valuation that the articles, the subject of the valuation, had been examined.
A bona fide valuation required some examination of what was the subject of the valuation. The lie in Donnally, therefore related to an event which must have occured before a genuine valuation could be made.
In R v More ([1987] | WLR 1578, 1585) Lord Ackner said: “It is common ground that the consistent use of the word “porports” in each of the paragraphs (a) to (h) inclusive of section 9(*), imports a requirement that for an instrument to be false it must tell a lie about itself, in the sense that it purports to be made by a person who did not make it, or otherwise purports to be made, in circumstances in which it was not made.”
R v Jeraj ([1994] Crim LR 595) involved a bank officer who wrote a note in which he said that he had received a letter of credit and that he had endorsed it. In fact he had neither seen nor endorsed the letter of credit.
The Court of Appeal, Criminal Division applied Donnelly in dismissing the appeal. Lord Taylor of Gosforth, Lord Chief Justice, indicated that unless he considered that Donnelly was “plainly wrong”, that court would be bound to follow it. He did, however, add that he thought “it was right”.
R v Warneford (The Times May 18, 1994: [1994] Crim LR 753) was decided shortly after Jeraj, but unfortunately, was given in ignorance of the earlier decision.
It involved a mortgage fraud and a letter purporting to be from one Brigdon, the employer of the mortgage applicant Warneford, confirming that Warneford was employed by Brigdon’s company.
In fact the letter was signed by a friend of Warneford’s father, named Maloney. The prosecution did not rely on the fact that the document was signed by Maloney using a false name, but on the fact that he was not the accused’s employer. that was a “circumstance” in which the document on it’s face purported to be made, thus bringing the document within section 9(1)(g).
Mr Justice Lawe in Warnefor* said said that Donnelly could not stand with More. He continued: “To say that the document purported to be a true valuation, but was not, is to urge no more than that it purported to be a true representation of its contents, but was not, it is, in affect to ebrace within the concept of forgery, every document which tells a lie about its subject-matter. That cannot be the right approach. It fails to ask and answer the question whether the document tells a lie about itself.”
If the court in Warneford had been aware of Jeraj, their Lordships doubted wether they would have taken that view as to the correctness of Donnelly.
In view of Jeraj, their Lordshops had come to the conclusion that Donnelly was still binding upon them. Both Donnelly and Jeraj should however be restricted in their application so that they applied, only where circumstances needed to exist before the document could be properly made or adhered.
If th*** circumstances did not exist there would then be a false instrument for the pruposes of section 9(1)(g). If the circumstances did not exist the document was telling a lie about itself because it was saying it was made in circumstances which did not exist.
It followed that Warneford must be regarded as coming to the wrong conclusion on the facts.
In each case where their Lordships would hold the instrument to be false it could not have been made honestly if the circumstances identified did not exist.
Thus in Donnelly you could not make a valuation without having seen the jewellery which you purported to have valued. In Jeraj there had to be a letter of credit which could be endorsed. In Warneford there had to have been relationship of master and servant before you could make a reference as an employer relating to an employee.
The need for the existences of those circumstances prior to the making of the instrument explained why if the circumstances did not exist the document was telling a lie about itself.
Mr Waylen concluded that the position in as far as the defendant was concerned was straightforward. If the record had not been produced by a tachograph disc it would have been written out by the driver and the error would not have been as to the making of the document, but rather as to its contents.
It would contain a lie, namely that there had been another driver, but that would not be referable to the making of the document.
With regard to a document produced by the driver, their Lordships would accept Mr Wavlen’s argument. However, that approach could not be adopted in relation to the document produced in the tachograph.
The tachograph [record?] was produced continuously over the period indicated by the record in so far as the record was being produced while the first driver was shown as driving there was no [delay?] in relation to its making.
It was, however capable of being a false instrument during the period when it showed that the first drive was not driving and that a second driving must therefore have been driving.
To make that part of the instrument, it was essential for there to be a second driver during the period the tachograph was [operated?] in the second driver position.
There was no second driver and therefore the instrument was false.
The circumstance which was false was that the record was being made during a period when there wrongly purported to be a second driver who was driving.
The question ** * by the Attorney-General in the relevance was in very wide terms. ‘[Their?] Lordships were unable to indicate all of the circumstances where falsity for the purposes of the 1981 Act could be established. Their Lordships did, however, give their opinion on the second part of the question.
Their Lordships concluded that in the instant case, the tachograph record sheet was capable of being a false instrument.
Their Lordships had **** in that conclusion because an instrument would be false for the purposes of section 9(1)(g) if it was a document which required, before it could be made or altered that there should exist or should have existed a set of circumstances as did not exist or had not existed.
Solicitors: [Hame Bell & Co. Worcester.?]

This needs further checking and the cases for each area posting with the correct link

 

 

The transcript of the text above has been carried out by ” confirm” and the source for this is this post

http://www.getoutofdebtfree.org/forum/viewtopic.php?f=60&t=73992&start=10#p307056

 

 

 

Bailiffs & High Court Enforcement Officers, Bank/Building Society Staff, Court Staff, Court System, Definitions, Legislation, Police Constables

Theft

The Theft Act 1968 is an Act of the Parliament of the United Kingdom. It creates a number of offences against property in England and Wales. On 15 January 2007 the Fraud Act 2006 came into force, redefining most of the offences of deception.

In England and Wales, theft is a statutory offence, created by section 1(1) of the Theft Act 1968. This offence replaces the former offences of larceny, embezzlement and fraudulent conversion.[17]

The marginal note to section 1 of the Theft Act 1968 describes it as a “basic definition” of theft. Sections 1(1) and (2) provide:

1.-(1) A person is guilty of theft, if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.
(2) It is immaterial whether the appropriation is made with a view to gain, or is made for the thief’s own benefit.

Sections 2 to 6 of the Theft Act 1968 have effect as regards the interpretation and operation of section 1 of that Act. Except as otherwise provided by that Act, sections 2 to 6 of that Act apply only for the purposes of section 1 of that Act.[18]

Section 4 – “Property”

The definition of property is “any property including money and all other property, real or personal, including things in action and other intangible property”

Section 6 “Intention to permanently deprive”

This section provides that the defendant in order to be guilty of theft had the intention of permanently depriving the other of the property.

The Theft Act 1968 describes property as including money and all other property, real or personal, including ‘things in action’ and other intangible property. When a case involves cheques or funds in bank accounts, it is important to identify and analyse exactly what has taken place. Prosecutors should carefully examine bank account details. It may be necessary to ask the police to obtain further evidence or information before deciding on the appropriate charge.

Main source: http://www.cps.gov.uk/legal/s_to_u/theft_act_offences/

The theft of someone’s home without full and complete facts and evidence and the full accounting allowing for the fact the home owner was the originating creditor is therefore a criminal offence and not a civil one.

So why do Police Constables completely ignore this fact?

#VOIDMORTGAGE

 

Articles, Police Constables

Hundreds of police officers sign open letter …

More than 600 serving police officers have signed a damning open letter warning another Tory-led government will “further endanger public safety” and leave the force “perilously close to collapse”.

It is the biggest ever criticism of government policy by frontline officers – despite them being banned from taking an active part in politics.

And it will further undermine David Cameron’s Tories’ credibility as the party of law and order.

The unprecedented intervention came in response to the coalition Government slashing the police budget by around 26% over the last five years, at a cost of 35,000 officers.

The letter states: “The police service is in crisis. Numbers are falling. Experienced officers are leaving (or planning to leave) in their droves.”

And it claims cuts to the force “will send a negative message about Britain being a safe place to live and do business and it will put economic recovery at risk”.

Former Met Det Chief Insp Peter Kirkham wrote the letter after reading one by business leaders outlining their concerns about a Labour government coming to power.

The letter has been signed by more than 1,000 policing professionals, including retired officers and police staff. Among them are 423 PCs and DCs, 188 sergeants, 50 inspectors up to Det Chief Insp level and four superintendents.

But senior officers have condemned the letter. Gareth Morgan, Avon and Somerset temporary Deputy Chief Constable, tweeted: “My advice to all serving officers would be to stay well clear of campaigns and lobbying. It’s the law after all.”

Full article and letter at http://www.mirror.co.uk/news/uk-news/hundreds-police-officers-sign-open-5562385

 

It would be nice if Constables stood shoulder to shoulder with rest of us when a house is stolen.

It will be too late when all the forces are privatised and many of you lose your jobs and then your home …

 

#VOIDMORTGAGE

 

 

Articles, Legislation, Police Constables

Bailiffs, Police and the Queens Coronation. By John Hurst. April 2015.

Much concern has been raised by images of police constables taking active measures to support bailiffs using force to repossess homes on behalf of private corporations such as banks and local authorities.

The traditional role of police was to maintain the Queens peace.

This necessarily meant maintaining impartiality as the traditional police oath required:

“”I do solemnly and sincerely declare and affirm that I will well and truly serve Our Sovereign Lady the Queen in the office of constable, without fear or affection, malice or ill will, and that I will to the best of my power cause the peace to be kept and preserved, and prevent all offences against the persons and properties of Her Majesty’s subjects and that while I continue to hold the said office I will to the best of my skill and knowledge discharge all the duties thereof faithfully according to law.”

Things began to change with the Police Act 1996. Research has confirmed that the change was never debated of explained:

“I………………..of………………..do solemnly and sincerely declare and affirm that I will well and truly serve the Queen in the office of constable, with fairness, integrity, diligence and impartiality, upholding fundamental human rights and according equal respect to all people; and that I will, to the best of my power, cause the peace to be kept and preserved and prevent all offences against people and property; and that while I continue to hold the said office I will, to the best of my skill and knowledge, discharge all the duties thereof faithfully according to law.’]

Note the difference, “Cause the peace to be kept and preserved” is transformed to “Upholding fundamental human rights”.

A common law obligation is replaced by a statute containing an undertaking to comply with statute law. Statutes cannot secure rights because the next Parliament can repeal whatever undertakings its predecessor might have made.

This is in conformity with the present legal and political establishments claim that “Parliament is supreme and can make and unmake any law it likes”.

Which brings us to the little known Tribunals, Courts and Enforcement Act 2007 (the 2007 Act). “Bailiffs” are now known as “Enforcement Agents” who “Take control of goods” ;

“s.63 Enforcement agents
(2) An individual may act as an enforcement agent only if one of these applies—
(a) he acts under a certificate under section 64 (formerly a certificated bailiff);
(b) he is exempt;
(c) he acts in the presence and under the direction of a person to whom paragraph (a) or (b) applies.

(3) An individual is exempt if he acts in the course of his duty as one of these—
(a) a constable;…”.

There we have it; a constable may act as an enforcement agent because he is exempt from the requirement for certification or when he is under the direction of a person who is certificated.
So much for the bad news.
Now the good news.

The lawfulness of the “Enforcement Agents” actions depends on the authenticity of the documents which they are relying on. I refer you to Guy Taylor’s forensic work.

The lawfulness of the constable’s actions also depends on the whole body of the law and particularly the obligations which The Queen accepted at Her Coronation.

Remember that s.63 (2) states that “An individual may act as an enforcement agent…”. There is no compulsion.

Check YouTube for the following video of the “Coronation of Queen Elizabeth the Second 1953”;

It is in black and white, is 9 mins 17 secs long and has the words “British Pathe” at the beginning.

The first insight which the film gives begins at the 5 min 50 sec point. The prospective Sovereign is presented to the people, she bows to them and then the Archbishops asks the people if they accept her. This election is proof that the people are Sovereign, whatever the present establishment may claim.

The ceremony moves on to the next video. YouTube should take you there automatically.

At the 10 sec. mark the Sword of state is presented “For the punishment of evildoers and the protection of the law abiding” .

At the 20 sec. mark the Chancellor of the Duchy of Lancaster presents the glove symbolising “Gentleness in the levying of taxes”.

At the 1.30 sec mark the Sceptre signifying “Kingly power and Justice” is presented. Justice means to recognise rights and punish wrongs.

At the 1.40 sec. Mark the Rod with the dove signifying that “Equity and mercy are never to be forgotten”.

Equity is fairness. As a legal system, it is a body of law that addresses concerns that fall outside the jurisdiction of the Common Law.

There we have it. Those who hold the Office of Constable, pre and post 1996, should be fulfilling their lawful and legal obligations better than they have been in well publicised cases.

Child abusers should be arrested and prosecuted. Debtors should be treated fairly.

A constable’s duty does not extend to “Taking control of goods” regardless of the circumstances.

The Nuremberg defence, “I vos only followink ze orders”, will not be accepted and failure to do these things is clearly the Common Law crime of misconduct in office.

Time to further educate the Constables.

 

more links to follow

 

#VOIDMORTGAGE

 

 

Bailiffs & High Court Enforcement Officers, Bank/Building Society Staff, Case Law, Court Staff, Court System, Estate Agents, Legislation, LPA Receiver, Police Constables

Criminal Justice and Courts Act 2015

Dear Constables please wake up to this NOW

 

26Corrupt or other improper exercise of police powers and privileges

(1)A police constable listed in subsection (3) commits an offence if he or she—

(a)exercises the powers and privileges of a constable improperly, and

(b)knows or ought to know that the exercise is improper.

(2)A police constable guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine (or both).

(3)The police constables referred to in subsection (1) are—

(a)a constable of a police force in England and Wales;

(b)a special constable for a police area in England and Wales;

(c)a constable or special constable of the British Transport Police Force;

(d)a constable of the Civil Nuclear Constabulary;

(e)a constable of the Ministry of Defence Police;

(f)a National Crime Agency officer designated under section 9 or 10 of the Crime and Courts Act 2013 as having the powers and privileges of a constable.

(4)For the purposes of this section, a police constable exercises the powers and privileges of a constable improperly if—

(a)he or she exercises a power or privilege of a constable for the purpose of achieving—

(i)a benefit for himself or herself, or

(ii)a benefit or a detriment for another person, and

(b)a reasonable person would not expect the power or privilege to be exercised for the purpose of achieving that benefit or detriment.

(5)For the purposes of this section, a police constable is to be treated as exercising the powers and privileges of a constable improperly in the cases described in subsections (6) and (7).

(6)The first case is where—

(a)the police constable fails to exercise a power or privilege of a constable,

(b)the purpose of the failure is to achieve a benefit or detriment described in subsection (4)(a), and

(c)a reasonable person would not expect a constable to fail to exercise the power or privilege for the purpose of achieving that benefit or detriment.

(7)The second case is where—

(a)the police constable threatens to exercise, or not to exercise, a power or privilege of a constable,

(b)the threat is made for the purpose of achieving a benefit or detriment described in subsection (4)(a), and

(c)a reasonable person would not expect a constable to threaten to exercise, or not to exercise, the power or privilege for the purpose of achieving that benefit or detriment.

(8)An offence is committed under this section if the act or omission in question takes place in the United Kingdom or in United Kingdom waters.

(9)In this section—

  • “benefit” and “detriment” mean any benefit or detriment, whether or not in money or other property and whether temporary or permanent;

  • “United Kingdom waters” means the sea and other waters within the seaward limits of the United Kingdom’s territorial sea.

(10)References in this section to exercising, or not exercising, the powers and privileges of a constable include performing, or not performing, the duties of a constable.

(11)Nothing in this section affects what constitutes the offence of misconduct in public office at common law in England and Wales or Northern Ireland.

http://www.legislation.gov.uk/ukpga/2015/2/section/26/enacted

There is nothing in the Oath of a Constable which allows the protection of a Bank/Building Society for using an invalid court document that was obtained by fraud as there was NEVER any money loaned.

Read your Oath of Office today and then carry out an investigation as to the facts and evidence in these matters.

#VOIDMORTGAGE

Case Law, Estate Agents, LPA Receiver, Money Creation

LPA Receiver Roll in Possession’s

Based on the current information that any mortgage is probably a #VOIDMORTGAGE

What role can a LPA Receiver possibly have to do do with anything?

There are specific undertakings that they should carry out and most of them do no seem to be met.

Please join the conversation over at the VOIDMORTGAGE KNOWLEDGEBASE and extend this info for others in the same position

 

#VOIDMORTGAGE

Bank/Building Society Staff, Legislation, Police Constables, Solicitors & Barristers

Protection from Harassment

Harassment

In this legal guidance, the term harassment is used to cover the ‘causing alarm or distress’ offences under section 2 of the Protection from Harassment Act 1997 as amended (PHA), and ‘putting people in fear of violence’ offences under section 4 of the PHA. The term can also include harassment by two or more defendants against an individual or harassment against more than one victim.

Although harassment is not specifically defined in section 7(2) of the PHA, it can include repeated attempts to impose unwanted communications and contact upon a victim in a manner that could be expected to cause distress or fear in any reasonable person.

The definition of harassment was considered in Plavelil v Director of Public Prosecutions [2014] EWHC 736 (Admin), in which it was held that the repeated making of false and malicious assertions against a doctor in connection with an investigation by the GMC could amount to a course of harassment. The Court of Appeal rejected the argument that malicious allegations could not be oppressive if they could easily be rebutted.

A prosecution under section 2 or 4 requires proof of harassment. In addition, there must be evidence to prove the conduct was targeted at an individual, was calculated to alarm or cause him/her distress, and was oppressive and unreasonable.

Closely connected groups may also be subjected to ‘collective’ harassment. The primary intention of this type of harassment is not generally directed at an individual but rather at members of a group. This could include: members of the same family; residents of a particular neighbourhood; groups of a specific identity including ethnicity or sexuality, for example, the racial harassment of the users of a specific ethnic community centre; harassment of a group of disabled people; harassment of gay clubs; or of those engaged in a specific trade or profession.

Harassment of an individual can also occur when a person is harassing others connected with the individual, knowing that this behaviour will affect their victim as well as the other people that the person appears to be targeting their actions towards. This is known as ‘stalking by proxy’. Family members, friends and employees of the victim may be subjected to this.

http://www.cps.gov.uk/legal/s_to_u/stalking_and_harassment/#a02a

Continued requests for money to be paid back on a false loan agreement would amount to Harassment

 

Section 2 offence – Harassment

The elements of section 2 offence are:

  • a course of conduct;
  • which amounts to harassment of another; and
  • which the defendant knows, or ought to know amounts to harassment of another.

The bank or building society will therefore know first hand whether they “LOANED” any money or not and this evidence can be produced from the “Full and Complete Accounting” of the company involved.

 

#VOIDMORTGAGE

Accountants, Bailiffs & High Court Enforcement Officers, Bank/Building Society Staff, Case Law, Court Staff, Legislation, Police Constables

Misconduct in Public Office

Refusing to investigate the theft of someone’s home WILL lead to this

Principle

Scope of the offence

Misconduct in public office is an offence at common law triable only on indictment. It carries a maximum sentence of life imprisonment. It is an offence confined to those who are public office holders and is committed when the office holder acts (or fails to act) in a way that constitutes a breach of the duties of that office.

The Court of Appeal has made it clear that the offence should be strictly confined. It can raise complex and sometimes sensitive issues. Prosecutors should therefore consider seeking the advice of the Principal Legal Advisor to resolve any uncertainty as to whether it would be appropriate to bring a prosecution for such an offence.

 

Definition of the offence

The elements of the offence are summarised in Attorney General’s Reference No 3 of 2003 [2004] EWCA Crim 868. The offence is committed when:

  • a public officer acting as such
  • wilfully neglects to perform his duty and/or wilfully misconducts himself
  •  to such a degree as to amount to an abuse of the public’s trust in the office holder
  • without reasonable excuse or justification

 

Where there is a statutory offence but it would be difficult or inappropriate to use it. This might arise because of evidential difficulties in proving the statutory offence in the particular circumstances;

  • because the maximum sentence for the statutory offence would be entirely insufficient for the seriousness of the misconduct.

A Public OfficerThe prosecution must have evidence to show that the suspect is a ‘public officer’. There is no simple definition and each case must be assessed individually, taking into account the nature of the role, the duties carried out and the level of public trust involved.

The courts have been reluctant to provide a detailed definition of a public officer. The case-law contains an element of circularity, in that the cases tend to define a public officer as a person who carries out a public duty or has an office of trust. What may constitute a public duty or an office of trust must therefore be inferred from the facts of particular cases.

The judgment of Lord Mansfield in R v Bembridge (1783) 3 Doug KB 32 refers to a public officer having:

‘ an office of trust concerning the public, especially if attended with profit … by whomever and in whatever way the officer is appointed’.

It does not seem that the person concerned must be the holder of an ‘office’ in a narrow or technical sense. The authorities suggest that it is the nature of the duties and the level of public trust involved that are relevant, rather than the manner or nature of appointment.

In R v Whitaker (1914) KB 1283 the court said:

‘A public office holder is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public.’

This approach was followed in a series of cases from other common law jurisdictions: R v Williams (1986) 39 WIR 129; R v Sacks [1943] SALR 413; R v Boston (1923) 33 CLR 386.

In R v Dytham (1979) 1 QB 723 Lord Widgery CJ talked of ‘a public officer who has an obligation to perform a duty’.

Remuneration is a significant factor, but not an essential element. In R v Belton [2010] WLR (D) 283 the defendant was an unpaid voluntary member of the Independent Monitoring Board. The Court of Appeal held that remuneration was not an indispensable requirement for the holding of a public office, or for liability to prosecution for the offence of misconduct in a public office.

The fact that an individual was a volunteer might have a bearing on whether there had been wilful misconduct, but was only indicative rather than determinative of whether an individual held a public office.

The court in Attorney General’s Reference No 3 of 2003 [2004] EWCA Crim 868 referred to the unfairness that could arise where people who carry out similar duties may or may not be liable to prosecution depending on whether they can be defined as ‘public officers’. What were once purely public functions are now frequently carried out by employees in private employment. An example is the role of the court security officer.

The court declined to define a public officer, however, but said:
‘This potential unfairness adds weight, in our view, to the conclusion that the offence should be strictly confined but we do not propose to develop the point or to consider further the question of what, for present purposes, constitutes a public office.’

The following have been accepted as holding a public office by the courts over several centuries:

  • Coroner (1675) R v Parker 2 Lev 140
  • Constable (1703) R v Wyatt 1 Salk 380
  • Accountant in the office of the Paymaster General (1783) R v Bembridge 3 Doug K.B. 32
  • Justice of the Peace (1791) R v Sainsbury 4 T.R 451
  • Executive or ministerial officer (1819) R v Friar 1 Chit.Rep (KB) 702
  • Gaoler (1827) R v Cope 6 A%E 226
  • Mayor or burgess (1828) Henly v Mayor of Lyme 5 Bing 91
  • Overseer of the poor (1891) R v Hall 1 QB 747
  • Army officer (1914) R v Whitaker 10 Cr.App.R.245
  • County Court registrar (district judge) (1968) R v Llewellyn-Jones 1 Q.B.429
  • Police officer (1979) R v Dytham 69 Cr.App.R.387
  • Council maintenance officer (1995) R v Bowden 4 All E.R 505
  • Local councillor (2004) R v Speechley [2004] EWCA Crim 3067
  • Member of the Independent Monitoring Board for prisons (2010) R v Belton R v Belton [2010] EWCA Crim 2857

So Police Constables take note,

A refusal to carry out an investigation into the theft of a home will amount to Misconduct in Office.

As the Office of Constable being a Public Servant has a position of trust concerning the Public and the Public of these lands have a legitimate expectation that you will do your job which is in essence an agreement or contract with us.

 

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Source: http://www.cps.gov.uk/legal/l_to_o/misconduct_in_public_office/

Accountants, Bailiffs & High Court Enforcement Officers, Bank/Building Society Staff, Court Staff, Legislation, Locksmiths, Police Constables, Something to think about ...

Police Powers Trespass & Squatting

Dear Police Constables,
We implore you to read this post and ensure that you comprehend the contents in its entirety.
Anyone who is entering back into their property to defend it from unlawful possession has a full and complete defence if you were to investigate the matter IN ADVANCE!
Do not just follow orders to evict trespassers on someone’s say so.
Make accurate inquiries as to whether the people have re-entered THEIR home to defend it first and check the details at the Land Registry.
Where mortgage repossessions are concerned, Police Constables are being psychologically reframed to regard evictee’s as squatters or trespassers, whom they can remove using police powers.
This power therefore can not be used if by investigation, IN ADVANCE, you can prove there was no loan by the bank or the building society.If they cannot prove they suffered a loss then they never made a loan … SIMPLE!
This power would then be an abuse of power if it doesn’t go hand in hand with a prior investigation to comply with your IMPARTIALITY.
Therefore any claim made in court would therefore be VOID AB INITIO and a Fraud upon the Court.
What you are doing is removing the lawful right of the owner by extreme force and against their will to defend their property which you as a Police Constable have no right to do before carrying out that investigation.
By removing and displacing real People you remove their base their home their life and you are doing it under orders with ZERO investigation as to the facts and evidence in the case in which you could obtain yourself if you remembered your oath of Office as a Constable.
Just doing your job has no defence in this country.
It could be seen as Misfeasance in Public Office for not carrying out your duties as a Public Servant as per YOUR Oath. This will open you personally to a civil claim if you do not do your job properly and have a dereliction of duty.
If you get asked to attend an incident like this, make inquiries as to whether the bank lent any money and ask to see where the loss of the purported “Mortgage Loan” occurred by insisting on seeing all the entries in the Bankers Books as per this legislation http://www.legislation.gov.uk/ukpga/Vict/42-43/11/contents Bankers’ Books Evidence Act 1879.
Elements of the offence – points to prove
6.
Subsection (1) of section 144 sets out the elements of the offence. The offence is committed when:
  • a person is in a residential building as a trespasser having entered it as such;
  • the person knows or ought to know that they are a trespasser; AND
  • the person is living in the building or intends to live there for any period.

 

You see if the real owner re-enters they know they are not a trespasser and the Full Accounting will prove their case. If you remove them first without investigating the facts of the case presented to you, you will become liable.

OFFENCE OF SQUATTING IN A RESIDENTIAL BUILDING
Introduction
1.
Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act
2012 creates a new offence of squatting in a residential building, which will apply throughout England and Wales. The offence is set out in full in
Annex A

Legal Aid, Sentencing and Punishment of Offenders Act 2012

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