Brother borrowed 20k without consent

NANANINANOONOO

letthemeatcake wrote: »

At least he is still getting around £250 per week in pension payments which the Son can no longer gain access too. Is your Father still living with his friend?

I hope it can be proved that the Son fraudulently obtained the £20000 share money by pretending to be his Father and that your Father never give permission for this. The Son may get away with the rest of the money he syphoned off through the bank accounts though.

If the Son had any equity in the house in September I expect he has now had time to put the house in his Wife's name to prevent having to sell it to pay your Father back.

My brothers wife sadly passed away and he has no partner but could he put the property in someone elses name like his children for example? Although the full investigation is not underway yet the issue was registered quite quickly with the social services and the police so the case is open, if my bro disposed of anything after that date would it not be deemed that he had deliberately disposed or transferred his assets? Does anyone know if this is correct?

tinkerbell28

NANANINANOONOO wrote: »

My brothers wife sadly passed away and he has no partner but could he put the property in someone elses name like his children for example? Although the full investigation is not underway yet the issue was registered quite quickly with the social services and the police so the case is open, if my bro disposed of anything after that date would it not be deemed that he had deliberately disposed or transferred his assets? Does anyone know if this is correct?

It would still be recoverable under proceeds of crime.

jonesMUFCforever

NANANINANOONOO wrote: »

My brothers wife sadly passed away and he has no partner but could he put the property in someone elses name like his children for example? Although the full investigation is not underway yet the issue was registered quite quickly with the social services and the police so the case is open, if my bro disposed of anything after that date would it not be deemed that he had deliberately disposed or transferred his assets? Does anyone know if this is correct?

Get a charge put on his house NOW!
You can do this by downloading the form from the Land Registry website and paying their fee.
Don't worry too much at the moment about whether you can enforce it - just put it on which would stall any sale or change of ownership.
At the end of the day any enforcement would be down to a judge in court.

cookyy2k

dktreesea wrote: »

OP, I quite see all the points you have made. Plus recovering from a stroke can take 110% of one's energy. Your brother has clearly taken advantage of your father's trust. But the police are motivated to move ahead in investigations only if they believe, or rather the prosecutor believes, that there is a good chance of obtaining a conviction.

Perhaps your brother felt he was doing more for his father than the rest of his siblings and therefore deserved to benefit more than the others from his father's assets? Maybe he used the money to invest in things , even telling himself it was on behalf of your dad, that didn't work out?

Even if the police took the view that the thefts did occur, and not passing on the statements and balances on the various accounts indicated your brother was trying to hide the evidence of his misdeeds from his father (the obvious conclusion), your brother might say that his Dad neither asked for that information, nor, in his opinion, was in good enough health to be bothered (by the brother) with those sorts of details.

The other thing that can put police off prosecuting where it's a family matter is, even if they believe a crime has been committed, your dad could pull out at any time, in which case your brother gets off scot free and they have to withdraw the charges.

Justice could still happen. Your Dad could get his day in court, and there could be an order for your brother to compensate your father for the money, possibly forcing your brother into bankruptcy and having to sell the house.

Sorry to say, but your brother is a complete idiot, and so are his children for cutting your dad off. They have only made it worse. If the police do decide to prosecute, things will start to move really quickly and they will arrest your brother. If he thinks being interviewed under caution is bad enough, that is nothing compared to being arrested and charged. Even if he is found to be innocent, that question on forms "Have you ever been arrested?" could interfere with his plans for himself for the rest of his life.

I don't know where you get your information on criminal law and police procedure from but a good deal of it is wrong.

The police are not only motivated to investigate further if the prosecutor believes that there is a good chance of a conviction as the file is assembled entirely by the investigating office(s) before it is presented to the CPS. Therefore the investigation is complete by the stage the prosecutor knows about it. Also I'd say if they have conducted an interview under caution they are already investigating since this is an investigatory stage.

The fact that her dad didn't ask for the statements is irrelevant to the case. Someone is guilty of theft if they "dishonestly appropriate property belonging to another with the intention to permanently deprive the other of it." thus the main point that this case can/will be argued on would be if it the brother's actions were "dishonest" (as defined by R v Ghosh [1982]) as the other points can be proven beyond a reasonable doubt.

If for whatever reason the dad decided to pull out, for example rings the police tomorrow and says he no longer wants to prosecute do they hell have to stop the investigation or withdraw any charges. If the police have evidence of a crime it can be pursued through the courts irrelevant what the victim thinks. It is up to the CPS to decide if there is still a need to go ahead with the case.

To the OP, I don't know all the details of the case but I'd say the chances of charges and hopefully a successful prosecution are a lot higher than everyone here is making out. At £50k if it goes to court it will be going to crown as this is a more serious theft than a magistrate's court will want to deal with. At that point it is upto a jury if they believe your brother had permission to take the money.

tinkerbell28

I agree ^^

NANANINANOONOO

cookyy2k wrote: »

The fact that her dad didn't ask for the statements is irrelevant to the case. Someone is guilty of theft if they "dishonestly appropriate property belonging to another with the intention to permanently deprive the other of it." thus the main point that this case can/will be argued on would be if it the brother's actions were "dishonest" (as defined by R v Ghosh [1982]) as the other points can be proven beyond a reasonable doubt.
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Thank you for that cookyy2k, I looked it up & am reassured by this bit ...

“ ... a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest... If it was dishonest... then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest. ”

Hence the test for dishonesty must be both subjective and objective. As a result, we have ‘the Ghosh test', which jury must consider before reaching a verdict on dishonesty :

1. Was the act one that an ordinary decent person (normally considered to be the ubiquitous ‘The man on the Clapham omnibus’) would consider to be dishonest (the objective test)? If so :
2. Must the accused have realised that what he was doing was, by those standards, dishonest (the subjective test)?

Note that it is not essential for a person to admit that they acted in a way that they knew to be dishonest, it is probably enough that they knew others would think their behaviour was dishonest, or that they thought that what they were doing was ‘wrong’.


I now believe that even if the evidence proves insufficient to get a conviction (which is doubtful) any ordinary decent person seeing the evidence and the paper trail would definately realise my brother did all of it knowing it was dishonest or wrong.

cookyy2k

The alternative charge they may bring against him instead of theft is fraud by abuse of position:

A person is guilty of fraud by abuse of position if he:

a)occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person,

b)dishonestly abuses that position, and

c)intends, by means of the abuse of that position -
i) to make a gain for himself or another

Here dishonest is still according the R v Ghosh and it has the benefit of not having to prove an intention to permanently deprive as for theft where your brother could claim he always intended to pay the money back, you just have to prove an intention to gain from it.

BobQ

No help to the OP or her Dad but it perhaps demonstrates the benefits of having a Lasting Power of Attorney in place.

It does not stop this kind of fraud from happening (particularly if done without consent) but it would mean that the Attorney (the brother in this case) would have had to demonstrate that the transactions were done in the best interests of the donor.

Anyone looking through this thread in the future would be well advised to make the arrangement formal and legally protected (ie a LPOA) rather than informal (allowing someone to use their password giving the opportunity to access other accounts).

I know someone who operated his father's accounts on an unofficial basis. He only did what his father instructed (which included making some gifts to third parties) but when his father developed dementia he began to realise the dangers if he was ever asked to prove he had authority to do this.

RuthnJasper

I am glad to hear that your dad is stepping up to fight his side OP. So many people at his time of life may have rolled over and given up. It's a desperately sad situation - but I think it will reaffirm the bond between you and your dad and - hopefully - maybe give others in similar situations the courage to say "No! This is not right!" in their own cases.

Please keep us informed; and sending every strength and blessing to you and your father. x

theforumking

Im sorry I have no advice here; but i just wanted to share how shocking this is