We have just been forwarded a circular sent (August 05) by NPAS (National Parking Adjudication Service) to all participating Local Authorities. It refers to the case of Higgins v Sefton Borough Council (case no. SF 272)
NPAS CIRCULAR 05/05
ISSUED AUGUST 2005
Higgins v Sefton Borough Council (Case NO SF 272)
This circular informs you about a recent decision on an issue which has already attracted press coverage in the national press and is potentially relevant to all DPE councils.
In this case the main ground of appeal relied upon by Mr Higgins was that the PCN issued by Sefton Borough Council and the whole of the decriminalised parking enforcement scheme brought in by the Road Traffic Act 1991 is illegal because it is in breach of the Bill of Rights Act 1689. Mr Higgins argued that the Bill of Rights Act 1689 is still in force and makes it illegal for a Penalty Charge to be imposed before the recipient has been convicted in a court of law. The particular provision relied on is that "all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void." The argument was made against a PCN issued by Sefton Borough Council, but could be raised by any appellant against any DPE council in any case as it concerns the underlying legality of decriminalised parking enforcement and PCNs.
The Adjudicator rejected this argument and dismissed the appeal. His decision is attached in full. However, we have summarised the key points made by the Adjudicator in arriving at this decision.
- The 1689 Act is relevant, but there is no conflict between it and the decriminalised parking scheme brought in by the Road Traffic Act 1991.
- The intention of the 1689 Act was to ensure a person has a right of challenge to any financial penalty imposed on him or her.
- When a PCN is issued the Road Traffic Act 1991 imposes a statutory duty on DPE councils to consider and respond to representations against the issue of a Notice to Owner which must be issued before a Penalty Charge can be enforced, and a right of appeal to an independent tribunal against the issue of the PCN if the council rejects those representations.
- The Road Traffic Act 1991 does, therefore, provide a right of challenge to the imposition of a Penalty Charge and is consistent with the 1689 Act.
- The High Court has considered the Road Traffic Act 1991, and the powers of Parking Adjudicators and did not raise any issue in relation to the 1689 Act.
We anticipate that, in light of the national press coverage about this issue being raised by other individuals in relation to other DPE councils, we will see further cases where this argument is pursued. If you are in any doubt as to how this issue may affect your council you should consult your legal department. In any event you may want to provide a copy of this circular and the Higgins decision to your legal department.
Andrew Barfoot
Tribunal Manager
5 comments:
] We will not make justices, constables, sheriffs or bailiffs save of such as know the law of the kingdom and mean to observe it well.
Magna Carta
.
Ashby v White 1704.
If a 'person has a right, the law provides a remedy to enforce it. As Holt, CJ, said in Ashby v. White : "If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal."
One Matthew Ashby commenc'd and prosecuted an Action at Common-Law against William White Constable of Aylesbury, a Borough where Sir John Packington was Lord of the Manor, and the Constable of his or his Tenants making, who had refus'd to admit Ashby's Vote at the Election of Burgesses to serve in Parliament; and Ashby (by Direction of my Lord Wharton, and at his Expence) brought this Action against White for having by Contrivance fraudulently and maliciously hinder'd him to give his Vote at the Election for Burgesses for Aylesbury, where Sir John Packington stood Candidate: In this Action a Verdict was found for Ashby in the Country, but Judgment was given against him in the Court of Queen's-Bench, which was revers'd upon a Writ of Error brought in the House of Lords, where he obtain'd Judgment to recover his Damages, and afterwards had Execution upon that Judgment. The five other Inhabitants of Aylesbury, John Paty, John Oviat, John Paton, Henry Bass and Daniel Horn, followed the Example of Ash by, and brought Actions against White and other Aylesbury Constables, in order to recover their Damages.
From: 'The first parliament of Queen Anne: Second session - The case of Ashby and White - begins 1/4/1704', The History and Proceedings of the House of Commons : volume 3: 1695-1706 (1742), pp. 308-88.
Doesn't this circular suggest that the NPAS are offering advice to Councils?
From their website directly underneath the video clip it reads:
"As an independent tribunal, the National Parking Adjudication Service cannot OFFER ADVICE to appellants or COUNCILS on the merits of individual cases."
http://www.parking-appeals.gov.uk/welcomeEN.asp
Hi, I was searching blogs, and came onto yours fantastic blog.
I have a niche site. It pretty much covers how make money with niche marketing.
Keep it up. I'll check back later im sure.
PART III
EXCEPTIONS AND EXEMPTIONS FROM RESTRICTIONS
Persons Boarding or alighting from vehicles.
6. Nothing in Article 5 of this Order shall render it unlawful to cause or permit a vehicle to wait in any restricted street for so long as may be necessary for the purpose of enabling any person to board or alight from the vehicle or to load thereon or unload therefrom their personal luggage.
Disabled persons vehicles
7. The restrictions imposed by Article 5(1) of Part II of this Order shall not apply in relation to a disabled persons vehicle which displays in the relevant position a disabled persons badge issued by any local authority;
Provided that, where the prescribed hours are of a period of more than three hours duration, that vehicle may wait for a period of no more than three hours (being a period not seperated by an interval of less than one hour from the previous period of waiting by the same vehicle in the same street on the same day).
Excepted vehicles.
8 The restrictions imposed by Part II of this Order shall not apply in relation to the following vehicles, that is to say-
(a) public service vehicles being used in the provision of a London local service, whilst waiting at an authorised stopping place or at a terminal or turning point;
(b) vehicles when used for fire brigade, ambulance or police
purposes;
(c) a bicycle propelled by mechanical power and not having a
side-car attached thereto whilst waiting wholly within the limits of a motor cycle parking area;
(d) any motor vehicle whilst waiting in the restricted street numbered 134 in Schedule 1 if there is displayed in a con-spicuous position on the vehicle a certificate issued by or on behalf of the Board of Governors of the University Col-lege Hospital indicating that the vehicle is used by a mem-ber of the medical profession attending at that Hospital;
(e) any police marked motor vehicle(s) being used for police purposes whilst waiting in a marked area, in a restricted street as defined and set out in schedule 7 to this Order.
(f) any coach whilst waiting in a marked area, in a restricted street as defined and set out in schedule 8 to this Order. (sub94/15)
(g) vehicles when used in the service of a local authority in pursuance of statutory powers or duties provided that in all the circumstances it is reasonably necessary in the exercise of such powers or the performance of such duties for the vehicle to wait in the place in which it is wait-ing;
(h) licensed taxis whilst waiting upon any duly authorised cab rank;
(i) vehicles whilst waiting in any restricted street for so
long as may be necessary in connection with the taking in of petrol, oil, water or air, if such taking in can-not be effected unless the vehicle waits in the place where it is waiting.
This is weekend reading for those not on holiday.
For the farce of it all, see the next response.
It has links at present that will be set up over the next few days. Please return and look them over again.
The Townsend v TfL and Justice Collins contentions are untenable, fallacious and unsustainable against a proper cogent formal representation, A preamble is here for those wishing to add it to their appeals and try pushing it further. Include this as a ground for appeal, and present it either having mentioned it on the NTO or not............
The draft below will be tidied for typos later.
My previous post on this topic was “Another line of defence consider Judicial Review application”.
This shows the obvious flaws at a simpler level to readily understand why present arguments from recent hearings are untenable. The DoR has been repealed illegally in reality, and we need to keep taking this back until we get sense returning to the notion of JUSTICE we all vote for.
The Declaration of Rights Arguments are back in focus now. They have always been on the table, slightly obscured due to the diversion of focus on the Moses V Barnet case that I had hoped might cause councils some concern. The aggression and zero tolerance plunder goes on, with increased intent to argue CO2 needs to increase penalties, alongside, increasingly widespread camera placement, nothing being spent on car parking to ease problems, keeping people circling around not allowed to stop, for a second, and publicising that clamping was being curtailed while increasing it. It is so comforting to be told it's being curtailed, only the victims feel it, and those who don't think mistakenly it has gone away merely because they aren't getting a clamp. Divide and rule, similarly with the need to appeal each case. Every motorist has to appeal, on non compliant PCN's. Isn't that the clearest signal that the councils are interested in the revenue above all other considerations of integrity. Morally bankrupt IS the correct name for this. Council audits should be thoroughly inspected by those who understands the creative accounting that goes into re-direction of revenue away from taxation to enlarge perks, and provide conference infancy locations like Barbados. These all need to be examined in the lead up to the next election. Also we want some potential councillors who will stand for election on precisely this issue, not whether some EU enlargement should be considered in public where a decision is taken without listening to that public anyway. PCN's ARE the local issue, and local magazines declare that there is a WAR on parking, whatever that term means , suggest we take it back to them by appealing EVERY PCN, the legitimate ones too, Do it on the perfectly valid ground, grounds of compassion, since they take the illegally gained revenue without distinction or refund.
This text and others from my site are freely available for the use of anyone having an impending hearing. Should they be used I would appreciate the courtesy of the user informing me, since this is a simplified version of the nearly complete version that has been on my site in draft form since early July. In its present form, and being placed in the public domain without being tested, I suspect a hearing might well see it dismissed again, if used improperly by any person not having some formal background in arguments and refutations.
The early full, formal, and logical arguments will not be updated on my site until such time as I feel this part is not a waste by being used incompetently. I shall however be prepared to release, what I view as irrefutable arguments based on the three disciplines, (where an appeal is under way, and I am invited to present them personally in London at either a PATAS or JR hearing, ( alongside the appellant as a litigant friend. ) The titled here as the arguments in early draft were:
1.Syllogistic reasoning,
......(a)Contextual evidence from which unequivocal inferences flow.
2.Formal logical reasoning, derived from Aristotle, no empirical grounds required.
......(a)The simplest of the three laws of thought, (1) the contradiction.
3.Scientific methodology,
......(a)Sufficient and necessary conditions.
Below is a reasonably straightforward preamble on them to ponder on in the coming weeks / months.
The early draft arguments were placed on a legal forum back in July with the invitation to refute. The several apparent lawyers or experts tried to tackle me as well as the arguments, and made complete fools of themselves, vexing me a bit as well, with two getting themselves into contradictions and the third dealing out semantics like jellied eals that utterly destroyed contract law as we know it. Their extracted arguments are shown on a exposure of a growing abuse of semantics page at......
The Declaration of rights, and bill of Rights 1668-1669 ( hereafter referred to as DoR ), was a contract or act that removed from the Crown the prerogative of delivering fines and forfeitures to citizens of the UK, without a trial or hearing. A brief historical background is available click here.....
The essential focus of this part is the tenet... freedom from fines and forfeitures without trial.
For precise definitions of fines and forfeitures click here...... Including the notion of civil click here......
For a conceptual examination and logical contradiction or contrariety clink here....
We the British, have the illusion that our rights enshrined in the Magna Carta, respecting articles 39 and 40 as well as those enshrined in the DoR tenet under focussed remain intact and are our pride and joy. THEY ARE NO LONGER.
The government, adjudicator's and Judicial stance follows the thread of several arguments.
Briefly while sitting at the rear bench on a Judicial revue application by R. De Crittenden. I heard Justice Collins refer to elements of the following points, that are echoes of the earlier views of the De crittenden adjudicator's at his hearing, as well as case reference of PATAS referred to as Townsend V Transport for London.
1.The Crown prerogative of delivering fines and forfeitures to citizens of the UK was removed in the TENET above. Therefore Fines and forfeitures could NO LONGER be conferred on us without a TRIAL, a term in modern usages like a hearing.
2.Certain parts of the Road Traffic Act 1991, those parts that do not refer to criminal proceedings that may result in penalties; essentially Parking Fines, nicely termed Civil Penalties, as if there were some difference that mattered, ARE conferred on us without trial.
3.The notion of a trial or hearing, is a focal point at which determination of guilt, or accountability is a temporal notion of crucial importance in respect of delivering a penalty without or with a trial. This aspect is BEFORE or AFTER. Of the notion of this temporal focus there only exists a third alternative namely the time T1 of a hearing being the time referred to as any PRESENT time along the moving scale. where before is T1B IS before a present say -1 second, and after is T1A + 1 second (any measurement of temporal scale will not detract from this relationship.
4.Next we have the notion or concept of conferring a benefit or a detriment, that has the identical structure of the time sequence relationship in 3. above Namely to confer a benefit to someone means to add something to their status quo, or else a detriment is to subtract something from their status quo. Like the Temporal example, the only point at which before and after meet is T1 -a present, and for conferring detriments CD and benefits CB the only point of meeting is conferring nothing that adds or subtracts, namely a neutral position CN. Thus temporal points before and after ANY present determined as T1, are mutually exclusive, they NEVER meet. Equally Detriments and Benefits are mutually exclusive concepts only meeting at a similar boundary of neutrality CN where nothing is added or subtracted. Again mutually exclusive. This structure, essentially a contrariety, that can be set aside for the more formal exposition in another section, is as so close to the PURE form of a contradiction as possible in the real world, it can be treated AS a contradiction. Pure contradiction being that which is itself or its own negation at the same time.
5.Now the established view that a civil penalty is some magical thing that belongs to the class of conferring benefits on a citizen is as untenable as it is irrational. It can only belong to the class of conferring detriments JUST like, and while at the same time being with differences that are not relevant, fines, forfeitures, insults and body blows. To focus on the notion of the PCN as a civil penalty while being different from the original concept of fines and forfeitures, in the custodial aspect, and saying that as such one cannot go to prison is simply a red herring argument, it remains unalterably within the class of conferring a detriment PRIOR to a hearing and NOT after. This difference of sequence places the nature of '' freedom from fines and forfeitures without trial' in distinct contradistinction with what we have today in '' fines and forfeitures before trial'.
6.Hold on you might say, one can challenge the penalty, well we'll look at the procedures for challenge in a moment, where you will see that its structure is so egregiously invidious as to place the citizen under such stress and anxiety they pay rather than even consider appealing in the VAST majority of cases. In addition I shall come to the structure of the appeals process and show that it is quite contrary to any notion of fairness by way of lexical definition, or instinctive understanding of the concepts Justice and Injustice.
7.The next thread of argument is 'Parliament is Supreme', well firstly not quite,it operates under the formal and powerless prerogative of the Monarchy, and is only given its mandate by the electorate whom I would suggest ARE the supreme power, and if not then throw democracy away, we don't have it here, we have a Parliament supreme in changing he meanings of any word it chooses to suit its argument at a present moment where revenue is the target. Unfortunately for them we have silly things called dictionaries, that fix these meanings, and unless you have one handy you will end up believing that civil penalties are so different from fines and forfeitures as to belong to a new class that is OUTSIDE that of conferring detriments or benefits, and the neutral part left that confers nothing. So if Civil penalties are NOT benefits, which clearly they are NOT, and so different from fines and forfeitures as to NOT be detriments, then what on earth are they? I can't wait to hear an answer from a Justice or adjudicator.
8.When parliament in 1668-9 removed the Royal prerogative in the tenet under focus, it did so to bridle unlawful plunder. If Parliament is now Supreme, and uses that prerogative for its own purposes, then what we have is simply a nominal replacement of the same function that is deplorable. Parliament is now supreme, and arrogates to itself the poser to DO PRECISELY what it removed from the Royal prerogative in 1668-9. If Parliament can now deliver detriments under any label you care to give it, it has licensed the councils to plunder the British public in the same way as it removed that prerogative from the Monarchy for its very repugnance then and NOW, because today it does it to a nation of citizens, rather than the few. Arguments for congestion, and CO2 are irrelevant here, we can move to them later, what is at issue is whether Parliament has any right to do so, without EXPRESSLY repealing the DoR of 1668, or else reforming the RTA 1991 under the law reform act 1965. The choice is simple, and the nature of what is being done is obvious. We have an implied repeal in the de facto reality, that is repugnant, and is actually blocked in a number of precedent case laws.
9.Parliament is serving its electorate that unwittingly gave it the mandate on other issues, with wholesale unbridled plunder that has at its edge conferring detriments in essentially a manner that is ZERO tolerance in a tolerant democracy. This aspect of the nature of what is being done, is the responsibility of the highest persons in office in the land, and the continued relegation of road traffic regulations as of minor priority is being allowed to continued and spiralling out of control, due to extending the time in which revenue is collected, with the latest desire to further remove rights where the police want to deliver instant fines on the street, for asbo like situations, and that also of course goes without trial.
10.Equally I note with disappointment that the Moses V Barnet victory TRANSCRIPT is long in coming, and bearing in mind that its essence is Barnet alone, and to block so called closed cases from refund, that is a case where revenue has been collected, and in some & many cases being unlawful for many reasons alongside non compliance, the timed delay accommodate councils to retain what they have collected while they correct the non compliant paperwork. Not really much of a victory, simply a potential victory that has dried from apathy among motorists, and resoluteness of councils to hold on.
11.The preamble is truncated here, and continues on my site over the weekend.
Pointing out flaws anywhere will be appreciated and if valid incorporated for all to use.
Townsend v Transport for London
Case No. 2050330626 PCN Number: GT10236871
Vehicle seen contravening bus lane regulations
Mr Townsend lodged a Statutory Declaration pursuant to the London Local
Authorities Act 1996 and Schedule 1 Para. 10 . The enforcing authority - in this case
Transport for London - is obliged by this Act to refer the matter to the Adjudicator
under Paragraph 10(7).
I have directed that the case be heard as an appeal and Mr Townsend has declined
my invitation to attend a personal hearing . I have given careful consideration to his
written evidence and the submissions on his behalf by the British Weights and
Measures Association. I have also examined the Penalty Charge Notice for this bus
lane allegation and the certified photographs.
I proceed to decide the matter and to make an appropriate direction upon the question
of liability as I am required to do by this legislation. As the responsibility of the
Adjudicator is enacted by The Queen in Parliament in a like exercise of Sovereignty
to that which enacted the Bill of Rights Act 1689 it is unclear why Mr Townsend
does not wish to avail himself of the opportunity of being heard. As the U.K. is a
state governed by the Rule of Law it is not open to a citizen to choose which laws
and jurisdictions within the State he wishes to recognise and which he does not - or if
It seems to me that the question falls to be considered as to whether the sensible
meaning of the above declaration precludes any financial penalty without
conviction and whether the category of proceedings under the 1996 Act , having
regard to the principles of Human Rights, could be considered as imposing a penalty
in breach of the spirit of the Bill of Rights.
"Fine" and the Intent of the Declarations
The Bill of Rights Act needs to be understood in the light of the contemporary
language and the meaning of the context. The preamble declarations ( for example
those in paragraphs 1, 2, 3, 4, 6and 9) are very plainly addressing the limitation of the
Crown prerogative and the imposition of law only by consent of Parliament. Mr
Townsend argues that the use of the word "conviction" must mean that the Act is
denying entitlement by any authority to impose any financial sanction without a
criminal conviction and that any subsequent legislation so creating an imposition
breaches the entrenched nature of the constitutional statute without a provision for
express repeal.
Conviction = 1. The proving or finding a person guilty of an offence with which he is charged before a legal tribunal; legal proof or declaration of guilt; the fact or condition of being convicted: sometimes including the passing of sentence. summary conviction: conviction by a judge or a bench of magistrates without a jury.
1491 Act 7 Hen. VII, c. 21 As though none atteyndour nor conviccion had ben hadde ageynst the seid William.
1628 Disc. Jesuits' Coll. (Camd. Soc.) 22 They_ministred matter sufficient for their legal conviction.
1670 G. H. Hist. Cardinals i. iii. 69 For the conviction of a Bishop, there was seventy-two witnesses requir'd.
1767 Blackstone Comm. II. 421 This forfeiture commences from the time of conviction.
1835 Ure Philos. Manuf. 360 The perjury of the witnesses placed an effectual barrier against conviction.
I do not think that this narrow interpretation is sustainable. What the declaration was
doing was describing a general intent that the Crown had no power to impose fine or
forfeiture without the consent of Parliament and the Rule of Law by the courts.
There have, in this country, been many situations where a financial sanction
can be imposed by Law without the situation being a criminal one. A person may,
for example, subject him/herself to a contract which involves a financial penalty for
breach . Or the Commissioners for Taxes may impose a penalty for unpaid taxes.
I have had regard for the extract of Judgement of the Divisional Court of the Queens
Bench dated February 2001 ( Thoburn -v-Sunderland City Council et al ) to which
Mr Townsend refers. However the Court was not there dealing with the provisions
herein or considering the meaning of the 1689 Act . In any event I entirely accept the
proposition that, as a constitutional statute, the Bill of Rights Act 1689 is not subject
to the principle of implied repeal.
My attention is drawn to a number of decisions of Adjudicators in the National
Parking Adjudication Service. In the case of Higgins-v- Sefton (NPAS SF272) the
Adjudicator (Stephen Knapp) stated:
" The intention of the 1689 Act was to provide the citizen with certain rights and to
prevent the imposition of any financial penalty without there being a right of
challenge, which certainly in the areas of criminal law, is one purpose of the more
modern European Convention on Human Rights. ...To that end the Road Traffic Act
1991 provides for a system of challenge and , if appropriate, appeal to this tribunal
against the issue of the Penalty Charge Notice .
RIGHT of CHALLENGE, exists only at increasing levels of penalties, and no costs to the enforcing agency................FAIR, JUST, EQUITABLE, Goodness where's the notion of injustice going.......
It is clear therefore that the 1991 Act does clearly establish a right of challenge to
the Penalty Charge Notice which, it must be recognised, is to be regarded as a civil
debt and not a fine." THERE'S NO DIFFERENCE worthy of mentioning, all are detriments.
I find this view of the scheme for the enforcement of parking penalties to be
persuasive as it is analogous to the decriminalised scheme for the enforcement of bus
lanes. I am not persuaded that the 1689 Act imposes any
entrenched prohibition upon the imposition of a financial penalty for breaches of
Traffic Management Orders or other laws relating to traffic - even if such penalties
were considered to be penal in nature . They are subject to a legal regime of
independent judicial scrutiny created by Statute and compatible with the European
Convention.
The question of repeal , therefore , I regard as not having relevance here. The
intention of the Bill of Rights is applied by the current law. I do not think
that that the Bill of Rights prohibits the imposition of a financial penalty other
than by conviction.
A FINE IS a financial penalty, and forfeiture is a penalty, a civil penalty is a detriment, all are detriments. ALL take place before conviction, which has nothing to do with the distinction between criminal or civil convictions. TWO, YES TWO contraries, All are detriments, not benefits, all are before conviction not after. RESOLVE?????????
Is the Scheme a criminal one for purposes of Human Rights ?
Even if the 1689 provision did provide for criminal penalties only after criminal
convictions would it have application here?
This is a diversion...........Forget criminal, fines are the same under any concept of conferring detriments. What is criminal is to proceed to enforce a PCN that is not valid.
In Williams -v-City of Stoke on Trent (NPAS SK690) Adjudicator Mark Hinchliffe
stated :
" The fact of decriminalisation means that the penalty charge is neither a fine nor a
forfeiture requiring conviction. It is a civil penalty, with the penalty going to the
council rather than to the Crown .. and it lacks many of the features of a criminal
sanction . For instance , a penalty charge cannot result in imprisonment even if not
paid."
AGAIN forget the term criminal...... focus on the
Moreover an understanding of the nature of a penalty charge must have regard for
the realities of modern life. London citizens in 1689 would have had no concept of
the essential need for traffic management to the extent required today.
The concept remains the same, see Robin's act excerpt, re the concept remains the same whatever the changes.....ALL the focus of a criminal charges is a red herring, diverting attention to the distinction between criminal and civil as there is a diff in the fine as not conferring a detriment.
It is appropriate, in my view, to look to more modern constitutional principles. In the
leading Human Rights case of Engel-v- Netherlands (1980 1 EHRR 706) the
European Court of Human Rights considered that the question of whether or not a
person was facing a "criminal charge" would be assessed by reference to three
criteria:
1 the classification of the proceedings in the law of the country concerned ,
2 the nature of the offence or conduct in question,
3 the severity of the penalty .
In the instant case, Mr Townsend had driven in a bus lane in contravention of a bye-
law and the enforcement of the bye-law is expressed by Statute to be by the
imposition of a fixed penalty ( currently at £100) enforceable by civil means ( the
unpaid penalty may be registered with the County Court and enforced by warrant of
execution issued by that court).
It is instructive to compare this scenario with that in the case of Air Canada -v- U.K (
1995 20 EHTR 150) where the Court determined that the impounding of an aircraft
of several million pounds value, ( in a Customs and Excise drug
smuggling action) was not evidence of criminal proceedings. The criminal courts
were not involved and there was no criminal charge. Reasonable comparison.
I conclude that the imposition of this penalty is not a criminal charge and that liability
arises other than by a conviction. OH NO! It does NOT follow that the absence of criminal charge THAT liability arises other than by conviction, (conviction being synonymous with CRIMINAL )conviction IS still required to satisfy the finding in truth of the facts, that is either a hearing or court. CRIMINAL is irrelevant and untenable.
I am satisfied that Mr Townsend is liable for this penalty charge and I DIRECT
accordingly .
Austin Wilkinson
Adjudicator
27 October 2005
extract from the reference
Robin Townsend
-v-
Transport for London
Case No.: 2050330626 PCN: GT10236871
Decision: Refused Adjudicator: Martin Wood
Mr Townsend claimed that the penalty charge was a "fine" and that he could not be fined without having first been
convicted of a criminal offence. He referred to the following declaration in the Bill of Rights 1689:
Wrong to refer to criminal, simply offence clears the argument down this erroneous path.
"All grants and promises of fines and forfeitures of particular persons before conviction are illegal and void".
The Adjudicator said that the question was whether the sensible meaning of this declaration precluded any
financial penalty without conviction and whether the category of proceedings under the 1996 Act , having
regard to the principles of Human Right s, could be considered as imposing a penalty in breach of the spirit of the
Bill of Rights.
"Fine" and the Intent of the Declarations
The Bill of Rights Act needs to be understood in the light of the contemporary language and the meaning of the
context. The preamble declarations were very plainly addressing the limitation of the Crown prerogative and the
imposition of law only by consent of Parliament. Mr Townsend argued that the use of the word "conviction" must
mean that the Act was denying entitlement by any authority to impose any financial sanction without a criminal
conviction and that any subsequent legislation so creating an imposition breached the entrenched nature of the
constitutional statute without a provision for express repeal.
CONVICTION DOES not MEAN CRIMINAL
The Adjudicator did not think that this narrow interpretation was sustainable. What the declaration was doing
was describing a general intent that the Crown had no power to impose fine or forfeiture without the consent of Parliament and the Rule of Law by the courts.
NOW is parliament has the power, it thinks IT can remove it from the Crown preogative, and own it for its own abuse.
The right to a challenge is correctly similar to the essence of what the DoR was aiming for. The removal of the Crown prerogative to confer detriments under any label, fine, forfeit, penalty, civil or otherwise is a sound principle of justice. What happened however was that Parliament in its invalid assumption of supremacy (that is not being formalised by the crown in each dissolution etc, and each term of electoral mandate), arrogated to itself the right to perform precisely what it thought invidious in 1668, the right to confer detriments BEFORE conviction, and that DOES NOT MEAN that conviction has SOLELY to do with criminal conviction. The term conviction in the OED makes NO reference since 1490 to criminal whatsoever, and this is where the NPAS & PATAS ruling Townsend V TFL are flawed in the presentation by Townsend that was instantly latched upon by the adjudicator.
The right of challenge has become the weakest form of ridiculous defence concerning equitable challenges, where the appellant is faced with ever-increasing penalties IF he appeals, and the defendant's invariably face NO costs if they lose. That's JUSTICE? I found no such concept of JUSTICE to match this principle, the TERM INJUSTICE, IE: OED want of equity IS a match for this procedure.
Parliament has taken the power from ABUSE by the crown to ABUSE it itself, by semantic constructions of unstable contrarieties. God give me strength to endure the slurry of sophistries, laid upon us as “no inconsistencies exist”.
The reasoning ........ Fine or whatever, AFTER conviction, is now AFTER a successful challenge and certainly BEFORE a hearing or whatever name you give these things. So there supposed to be no inconsistency between a fine BEFORE and one AFTER. That's the first parliamentary harmony. The next is civil penalties are so different from fines and forfeitures that THEY all do not fall under the same concept of conferring detriments, rather than benefits, some new kind of sui generis fine that's a kindness simply because it would be ridiculous to go to prison over £50. Aren't we happy now?
That's the second thing this sophistic parliament thinks is not inconsistent. We are presented with civil penalties as if they were some benefit or award. The trouble is WE believe this detritus delivered from the reasoning powers of agenda driven adjudicators. We must deserve what we voted for.
Apologies the last post was far too lengthy including cut an dpaste elements from the arguemnts in rebuttal of all the Townsend v TFL hearing too, VERY sorry it al got thrown in, and can't remedy it. STILL it's all valuable stuff for anyone thinking of throwing the book at them.
Post a Comment