Stack Exchange
log in

JBentley

 Discussion on answer by JBentley: Bus…

Imported from a comment discussion on law.stackexchange.com/qu...
JBentley
Wed 21:38
@MichaelHall Of course the situation is different if you cannot even identify a payment method to use (e.g. bank details or an address to send a cheque to).
JBentley
Wed 21:38
@MichaelHall I don't think so. If you were to sue a person for non-payment and they can demonstrate they have paid you the money, the case will be dismissed at that point for lack of cause of action (accounting system issues notwithstanding). At best you may have some grounds for recovering some legal costs (e.g. if you can show the other party was unreasonable in not bringing the payment to your attention) but even that is doubtful as you'd be expected to carry out some basic due diligence (e.g. a bank statement search) before suing.
JBentley
Wed 21:38
@NateEldredge I believe that scenario would be covered by the defence I mentioned in one of the comments above. There are other elements of the crime of theft that need to be met too (e.g. dishonesty, intention to permanently deprive). As long as you've made best efforts to return the money and explain the situation, and the supplier is still letting you keep the money, it's unlikely you'd meet all of the elements of theft. The main risk comes from just quietly holding onto the money and hoping nobody will notice.
JBentley
Wed 21:38
@bracco23 Section 2(1)(b) of the Theft Act provides a defence if "[the potential thief] appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it". So, it could change the situation but it would really depend on the exact nature and wording of the communication between you and the business, and whether it is reasonable to conclude from it that the defence applies.
JBentley
Wed 21:38
@o.m. I think the emphasis is more on paying the money back rather than informing them. The latter isn't even really necessary as long as you do the former. I imagine there is rarely a situation where you can reasonably avoid paying the money back. Possibly if you're dealing with an online platform that doesn't provide information on how to make offline payments to them (e.g. bank transfer) and there's no easy way to find yourself.
 

 Discussion on answer by Barmar: What …

Imported from a comment discussion on law.stackexchange.com/qu...
JBentley
Jul 18 07:29
In any case, a charity which has the award of scholarships as its purpose is probably fine as long as the scholarship is available to the public or a well defined portion of the public. Conversely, an organisation who has as its purpose the award of scholarships to only the founder's family members would fail to meet the public benefit requirement.
JBentley
Jul 18 07:27
@MichaelHall The key case for the public benefit requirement is Independent Schools Council v Charity Commission [2011] UKUT 421 (TCC). By coincidence I've actually been before the same judge in relation to public benefit in a different case. Sponsoring an annual scholarship isn't relevant - what matters is the purpose for which the charity was established not what the charity actually does. The latter is a compliance issue while the former is part of the definition of what makes a charity.
JBentley
Jul 18 07:15
@MichaelHall This was the comment I originally responded to: "I could informally set up a club with a group of friends that could constitute a charity." Yes, of course. Why would it not be?" - you implied, by your "why would it not be?" question that there's no reason a private club wouldn't be a charity. I gave the reasons why it could fail to be a charity.
JBentley
Jul 18 01:59
@MichaelHall That's an entirely different case which is a specific subset of a private club (i.e. one that specifically pools money and makes donations). The original example was just a generalised private club of friends. The latter is not a charity unless it does something that satisfies the public benefit requirement (e.g. donating money to other charities)
JBentley
Jul 18 01:59
@MichaelHall That's not right. A club consisting of just a group of friends would almost certainly not be a charity even if its purposes fit within one of the categories in the list, because it fails the "public" part of the public benefit test. If instead anyone was free to join the club (not just the group of friends) and the purpose grants some benefit, then it could be a charity. Most tax benefits automatically follows charity status without having to do anything further (e.g. apply for some kind of "exempt status").
JBentley
Jul 18 01:59
@FD_bfa Trustees come into existence by way of statutory provision rather being roles that the charity creates. The trustees are just whoever happens to have the "general control and management of the charity" at any given moment. So, charities [almost] all have trustees (and those that don't can be struck off the register because they presumably do "not operate". The bottom line is that having trustees isn't one of the requirements of being a charity.
JBentley
Jul 18 01:59
The key missing ingredient here, which also happens to answer some of the comments (e.g. @FD_bfa) is that in addition to being set up solely for one of the charitable purposes in the list, the purpose must also be for the public benefit. This is why for example, an organisation which has a purpose of "the advancement of education" will fail to be a charity if educates only one person ("public" part) or is educating people on something harmful to society ("benefit" part).
 

 Discussion on question by Trish: Coul…

Imported from a comment discussion on law.stackexchange.com/qu...
JBentley
Jan 24 20:36
@JoeW How do you propose that a disciplinary board would decide whether a lawyer had breached a rule against making unarguable cases, other than by relying on the judgment for the case in which they made the argument? Essentially you are saying that such a rule can never be enforced since there will always be hypothetical judges at the same level who could reach the opposite conclusion. Since we clearly know that such rules are enforceable, we must also conclude that it is reasonable to rely on the judgment.
JBentley
Jan 24 20:36
@JoeW At some point either an appeal window will expire or a judgment will be issued by a final appellate court. At that point its completely irrelevant whether a different judge might have reached a different conclusion. By your reasoning, no legal standards body could ever sanction a lawyer for putting forward an unarguable case (even if doing so were against their rules) since there might be a hypothetical judge out there who would disagree. In practice, we DO treat a judgment as containing "legal facts" (not just opinions) until either the law changes or the judgment is overruled.
 

 Discussion on answer by littleadv: Wh…

Imported from a comment discussion on law.stackexchange.com/qu...
JBentley
Dec 19, 2024 00:35
@barbecue What's the point of all this debate? The definition of terrorism that we're using is written in the quote in the OP's question. It's not "one" definition, it's "the" definition. The court isn't going to care that you have your own private definition; it's the one written in the law that matters. Your examples of squirrels dropping acorns and teachers making you stand up in class aren't terrorism because neither the squirrel nor the teacher intended to intimidate a civilian population etc when they did it. There's no danger here of ordinary actions suddenly becoming terrorism.
JBentley
Dec 19, 2024 00:35
@Shadur-don't-feed-the-AI Your comments are unhelpful. We're concerned only with the legal definition of terrorism and whether the elements are met in this case. I don't know why you're talking about religion and protected classes. This isn't a question about unlawful discrimination.
 

 Discussion on question by ConanTheGer…

Imported from a comment discussion on law.stackexchange.com/qu...
JBentley
Dec 13, 2024 21:41
@JoeW Yes, it can be hand waved. Otherwise every legal question would get bogged down in the entire background leading up to the premise. For example, a question like "In contract law, if I accept a validly made offer, is there agreement?" should produce the answer "yes". It should not produce a side-debate on whether or not the offer was in fact validly made because the whole point of the question is that we're assuming it was. That's in spite of the fact that in real life we would have to look at the offer to make sure it meets the necessary elements.
JBentley
Dec 13, 2024 21:41
@JoeW And that could well be the basis of a good, but different, question. The question here is whether or not you can be excused from a crime if that crime gives you a defence to another crime. It's pointless to pick apart the premise, because then we're looking at an entirely different question. The assumption, for the purpose of the question, is that a full investigation has been carried out and the video has convinced the police or the CPS that there was no rape. Given that assumption, will Bob get in trouble for making the video?
JBentley
Dec 13, 2024 21:41
@JoeW The premise of the question is that "the film makes it clear sex was consensual" so we don't need to be concerned with issues that might make it non-consensual.
JBentley
Dec 13, 2024 21:41
@Lag It's a good point, but I think for the purpose of this question we should take the rape / voyeurism as just examples to illustrate the question of whether or not a person can be punished for committing a crime if the act of that crime provides a defence to another crime. Our assumption therefore should be that both of the crimes did in fact take place and can be proved.
 

 Discussion on answer by JBentley: Dis…

Imported from a comment discussion on law.stackexchange.com/qu...
JBentley
Nov 24, 2024 16:28
@Starship Also, in your example of the employee who believes in killing homosexuals but might be making it up, it's not going to be a contested issue. That's because the first Grainger criterion is: "The belief must be genuinely held". In order for the employee to bring a case against the employer, he is by definition stating that it was genuine. Conversely, the employer is arguing that they legitimately discriminated against that belief, so neither side is going to be arguing that the belief was made up.
JBentley
Nov 24, 2024 16:28
@Starship No, because the discriminator's interpretation of the Quran is not a relevant factor when the court is deciding if the discrimination was unlawful. It doesn't matter what the discriminator thought; it only matters what the person being discriminated against believes. As for "how are you supposed to know what they believe?" - that's a problem for the court to figure out, and it's not unique to equality law: the court often has to work out what was in a person's mind. They will look at what was said, the person's witness testimony, etc.
JBentley
Nov 24, 2024 16:28
@Starship Most Muslims believe the verse calling for killing non-believers was written in the context of being at war, not during times of peace. I'm not professing to be an expert in Islam so I don't have much more to say about that. In any case, as I've said, it's the belief of the specific person that matters, and most Muslims do not believe that it's ok to murder people, regardless of what is written in the Quran and how you think that should be interpreted.
JBentley
Nov 24, 2024 16:28
@Starship Established mainstream religions are automatically protected because the full phrase is "religion or belief". If you generically state that you are a Muslim, that's protected. If you state that you're a Muslim and you believe murder is acceptable then that's unlikely to be protected. Again, it's the specific belief in the person's mind that counts, not what the Quran says. Also, your claim about the Quran is highly contentious and most Muslims do not believe it states that you can indiscriminately murder people.
JBentley
Nov 24, 2024 16:28
@Starship There would be unlawful discrimination because Islam is a recognised religion and it's not viewed as being unworthy of respect in a democratic society etc.
JBentley
Nov 24, 2024 16:28
@Starship It's the belief of the specific person that matters. The vast majority of Muslims do not believe it is acceptable to murder people. If a specific Muslim did believe that, and was discriminated against for that reason, then it may not be unlawful per Grainger.
 

 Discussion on question by Miss Unders…

Imported from a comment discussion on law.stackexchange.com/qu...
JBentley
Nov 23, 2024 22:02
Perhaps there's just a definitional issue here in that you're interpreting the "international" in international law to mean law that sits above all other law in a hierarchy, when really it just means a piece of law that governs the relationship between two or more sovereign states.
JBentley
Nov 23, 2024 22:02
@littleadv Ok, so you meant "it doesn't apply to all countries". No, EU law doesn't apply to all countries. So what? It's still international law (which you claim doesn't exist), and it still takes priority over national law (which you claim can't happen). I think we're now just arguing semantics. International law does exist, it is a real concept, it's used by real lawyers and real courts, it is capable of having real world effects, and the fact that there is no piece of international law that has jurisdiction over the entire planet, and no global legislature, doesn't change any of that.
JBentley
Nov 23, 2024 22:02
@littleadv Of course it applies to countries. It applies to every single country (member state) which is in the EU (27 of them to be exact). You can find here a very long (non-exhaustive) list of occasions on which supra-national EU law was applied to countries in the EU by the European Court of Justice, thus creating judgments that take higher priority over the national courts of those countries. Notice how some of those cases even include the country name in the title (e.g. Commission v Italy).
JBentley
Nov 23, 2024 22:02
@littleadv But governments are indeed subject to higher entity rules in international law. If an EU member state breaches its treaty obligations then other member states and citzens can enforce them in their domestic courts or one of the EU courts and the EU laws (which derive from treaties) will take precedence over domestic laws due to the primacy of EU law. This is a core principle of EU law.
JBentley
Nov 23, 2024 22:02
@littleadv Why do you think there needs to be one? Contracts between persons aren't written by legislatures, but they are still enforced under contract law. We wouldn't say that contract law is a colloquial term. Similarly, treaties are enforced by various mechanisms which we call international law. The entirety of EU law for example ultimately derives its authority from international treaties: when you go to to the European General Court, you are ultimately enforcing a treaty i.e. international law. Yet those treaties weren't written by an international legislature.
JBentley
Nov 23, 2024 22:02
@littleadv That's an odd comment. It's like saying there is no such thing as contract law and that what is colloquially called "contract law" is in reality a bunch of different agreements between individuals. International law is a widely accepted term in the same sense as contract law is. There are numerous books with the title "international law". Law libraries have shelves dedicated to the topic. You can take a degree or a masters in international law.
 

 Discussion on question by pinegulf: D…

Imported from a comment discussion on skeptics.stackexchange.c...
JBentley
Jul 3, 2024 12:42
@JoeW I took your point and I'm applying it to the original one. Being threatened with jail for committing a 2nd crime during a suspended sentence is no more harsh than being threatened with jail for committing any crime, suspended sentence or not. Since we all face that threat every day of our lives (regardless of whether we are seeing out a suspended sentence), it can't really be "harsh" to tell someone that if they re-offend they will go to jail, because that already applied to them anyway. The suspended sentence was merely a lucky opportunity to avoid it the first time.
JBentley
Jul 3, 2024 12:42
@JoeW Sure, and if I say to you "If you gang rape someone, you will go to prison", would you consider that I've treated you harshly? Most people would not, because it's your choice whether to obey that law or not and you are entirely free to avoid going to prison by not gang raping anyone. Just as you are free to stay out of prison during a suspended sentence by not committing crimes.
JBentley
Jul 3, 2024 12:42
@Oddthinking But the EV is based on whether or not you break the law. If you abide by the law, you can reduce that to 0%. It's a bit hard to argue that a consequence is harsh if you are able to entirely avoid that consequence simply by not doing anything illegal (which is something that is expected of you anyway with or without a suspended sentence).
 

 Discussion on question by Julius Hami…

Imported from a comment discussion on law.stackexchange.com/qu...
JBentley
Jul 2, 2024 19:06
@Barmar That's not really comparable, because it concerns the ability of states to pass laws constitutionally. The state would then have to pass a retrospective anti-abortion law. I'm not familiar enough with US law to say whether that's possible but I suspect not.
JBentley
Jul 2, 2024 19:06
@user121330 It isn't a fiction, it's a reality with real consequences that are different to what they would be otherwise. If courts made law, then the effects would only be prospective. Because courts interpret law, the effects are retrospective. That means that if you wore a red hat yesterday, and the court rules today that wearing red hats is illegal, then you committed a crime yesterday because it was always illegal even before the court made the ruling.
JBentley
Jul 2, 2024 19:06
@kaya3 "didn't have any such immunity until yesterday" - that isn't technically true. Courts don't make law, they interpret it. The Court's role is simply to state what the law is. That means that presidents always had that immunity; it just hadn't yet been formally interpreted that way yet.
 

 Discussion on answer by anongoodnurse…

Imported from a comment discussion on medicalsciences.stackexc...
JBentley
Feb 17, 2024 14:42
I agree with OP's initial comments here. I've re-read the answer a few times myself and it doesn't seem to address the question of why a post-exposure vaccine produces a faster response than the virus itself does (as for example M.A.R.'s comment does). The downvote is for your unnecessarily dismissive response in the comments. It doesn't matter if it "took a while to write" - if it's hard to glean the answer for the OP and others, then it needs improvement.
 

 Discussion on answer by Michael Hall:…

Imported from a comment discussion on law.stackexchange.com/qu...
JBentley
Feb 7, 2024 21:05
@psmears In practice though, the courts will never consider the issue if intent if it has been determined that the goods belong to the person taking them, because by definition there is no theft if the goods belong to you, so there is no need to establish intent.
JBentley
Feb 7, 2024 21:05
@psmears I was responding to a comment which was referring to the intent element of theft, and my response was only meant to be read in that context. What you are now referring to is "[property] belonging to another" which is a separate element of for establishing the crime. See the first 6 sections, and their headings, of the Act for the definition of theft and its breakdown into the 5 required elements (again, England & Wales).
JBentley
Feb 7, 2024 21:05
@MikeB Theft is theft, it doesn't matter if it is for personal use or not. The word "intent" doesn't refer to what you intend to use the item for; it refers to the intention to permanently deprive the other person of the item (England & Wales)
 

 Discussion on question by Sam: What a…

Imported from a comment discussion on law.stackexchange.com/qu...
JBentley
Feb 2, 2024 10:00
@MichaelHall The question shouldn't be re-opened because even the new title is off-topic here. Whether or not cannabis use should be legalised is a question for politicians in parliament to decide.
 

 Discussion on question by JosephCorre…

Imported from a comment discussion on law.stackexchange.com/qu...
JBentley
Oct 20, 2022 19:10
@MichaelHall I agree that some of OP's questions leave something to be desired in terms of style and (often) level of vitriol, but whether a question is something that "children should be taught at an early age" or that "90%+ of the population already knows", or has an easy moral/ethical answer, is of no relevance to whether a question is good for this site or not. A question is good if it falls within the scope of the site rules, has a well defined and narrow scope, and relates to an issue of law. We shouldn't discourage questions purely on the basis that the answer might be obvious.
 

 Discussion on question by Some Guy: I…

Imported from a comment discussion on law.stackexchange.com/qu...
JBentley
Sep 22, 2022 21:22
@kisspuska You're taking the CoC out of context there. Avoiding offensive and racist language doesn't mean we should refuse to deal with valid legal questions simply because they involve controversial and/or race-related issues. Shutting down such questions is a form of discrimination itself. It's also very hard to follow your reasoning as to why you think this question is fine if it is "for the sake of the argument" but should be closed if the OP believes their counterargument is correct. Either the question is offensive or it is not - the OP's beliefs have nothing to do with it.
 

 Discussion on answer by motosubatsu: …

Imported from a comment discussion on law.stackexchange.com/qu...
JBentley
Sep 14, 2022 19:53
Well, it would depend on whether you can convince a court that it constitutes a belief. To do that you have to satisfy the Grainger v Nicholson criteria (see para. 24; genuinely held, not a mere opinion, substantial aspect of human life, cogency / importance, worthy of respect in a democratic society), noting that the courts have very readily been persuaded on a wide range of beliefs. If you manage that, then there is no difference between the cross and the bike because they are both manifestations of the underlying belief.
JBentley
Sep 14, 2022 19:53
@motosubatsu Consider a shop which puts up a sign forbidding entry to anyone wearing a cross. If we apply your reasoning, there is no discrimination because a Christian is no more disadvantaged than an atheist who happens to like wearing crosses. In practice, you have disadvantaged the former because you've prevented the former from manifesting their belief, while you have not done that to the latter.
JBentley
Sep 14, 2022 19:53
@JosephP. "how is it possible for one to discriminate against someone for something but not "on the basis of" that thing?" Well, for example, I could install only urinals and no cubicles in my customer toilets because urinals are cheaper to install. I'd be discriminating against females, but on the basis of cost and not on the basis of gender,
JBentley
Sep 14, 2022 19:53
Yes, that very well may be the case that there is a good reason here. But my point wasn't about whether a reason can be found but rather where a reason is required under the contract or not.
JBentley
Sep 14, 2022 19:53
Agreed on the first point, but given that Bob "takes his bike every day" on the train, it's not unlikely that this does form part of his belief system; or at the very least that this could form the basis of an arguable cause of action. On the second point, there is no requirement under the Equality Act 2010 for the discriminating party to be aware of the protected characteristic, nor to discriminate on the basis of it. See Section 19 in relation to indirect discrimination (and in particular, sub-section 2).