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- Campaigners' ammunition to be sabotaged
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- Humpty Dumpty Judge has decision overturned
- Judge declares 'it's not a fine' ... problems now ...
- Now Leeds Council's Parking Tickets set to fall?
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- Stakes raised in Parking Ticket dispute
- Another NCP Bonus Scheme...this time Milton Keynes
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- Judge 'Humpty Dumpty' Collins Fine Mess gets worse
- Blackpool to face Court over illegal Parking Tickets
- Attention Parking Attendants
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- Herron on Parking Fines...TalkSPORT this Sunday
- Justice 'Humpty Dumpty' Collins Wonderland
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- Busy week...downhill all the way
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- Judge declares Bill of Rights does not apply
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26 comments:
The Judge is obviously an establishment arsehole! Let's hope the appellant furthers this.
If it's not a fine or forfeiture then what is it?
What was the reasoning behind the judgment?
If it's not a fine or forfeiture then what is it?
Magna Carta, c. 61
. if we or our justiciar, or our bailiffs, or any of our servants shall have done wrong in any way toward any one, or shall have transgressed any of the articles of peace or security; and the wrong shall have been shown to four barons of the aforesaid twenty-five barons, let those four barons come to us or to our justiciar, if we are out of the kingdom, laying before us the transgression, and let them ask that we cause that transgression to be corrected without delay.
.
Magna Carta – which in this respect has never been amended – states that twenty-five Lords (or Peers, or Barons as they were then), may accept a people's petition to the reigning monarch. They then appoint four to convey that petition to the Queen. She then has to respond personally to the people within 40 days.
That it is the right of the subjects to petition the King, and all committments and prosecutions for such petitioning are illegal. (The Bill of Rights 1689 An act for declaring the rights and liberties of the subject and settling the succession of the crown).
Your Majesty,
I write to exercise my right of petition permitted under our British Constitution
Get to it Neil, design and circulate the template, the last big petition to HM was to hold a referendum with regard to the EU constitution. Royal pressure was brought to bare
Or just appeal by way of stated case in a scottish court?
http://www.bailii.org/cgi-bin/markup.cgi?doc=/scot/cases/ScotSC/2004/89.html&query=penalty+notice+parking&method=all
Basically; what i heard today, leaves me in no doubt whatsoever, that we the people are on our own and that the Bill of rights does not exist as in the judges words, I am Judge and i am telling you that you are wrong and that Parliament can do whatever it pleases!!
Therefore, any criminal offence could be downgrounded to a civil penalty and dealt with not by a trial in a Court, but by a tribunal.
Is the judgement based on a point of fact that the Bill of Rights no longer has any influence in modern legislation or that it would IF the parking penalties were indeed fines?
I am confused.
This is genuinely astonishing. It's possible for a judgement to defy common sense or to simply be wrong even though you can see the reason for that judgement. In this case, how can the judge reach his decision? I've looked at it all ways and it's still baffling. I can't wait for his reasoning. I cannot wait to read how he came to this without admitting he made it up on the hoof.
Mr Justice Collins may as well have ruled that black is white such is the perversity of this decision. In addition, it opens up the possibility of further "penalty charges" being levied by local authorities without the opportunity of challenge in a court. It establishes the principle that any powers to raise "exceptional charges" can be delegated to local authorities to implement and a vestige of accountability need only be provided by an "impartial" tribunal set up by the local authorities running the scheme.
I would be interested to know what legal avenues remain to challenge this decision. It's as plain as daylight that Mr Justice Collins is following the lead or Lord Justice Laws and making the law up as he goes along to dig the Government out of a hole of its (and its predecessors') making.
The Bill of Rights stopped applying when Parliament unlawfully passed the Catholic Relief Act 1829 (read the main text of the Bill) from the moment George IV gave it Royal Assent (George III told William Pitt it would break his Coronation Oath).
So all Acts passed since that date to now and Parliament itself (even to this day) sits without Authority. Will be announcing a new group shortly that is exclusively to protect the Established Church, Crown and Constitution (and the Parliament free of Three Party self serving interests) by political activism and reminding those who want to destroy the United Kingdom that it has fought far more powerful enemies.
Though I'm disappointed at the outcome of the application I await with interest the opportunity to read the full judgement to understand the reasons behind it. For entirely different reasons I have thought for some time that the BoR defence had little merit, the reason for this being an explanation of Article 12 I came across whilst researching it:
"That all grants and promises of fines and forfeitures of particular
persons before conviction are illegal and void:
After a person was convicted of treason, not only could he be hung,
drawn, and quartered, but also his property could be confiscated by the king
through “fines and forfeitures.” This property could then be given by the king as a
gift to one of his courtiers, friends, or allies. It became common for kings in treason
cases to promise these “fines or forfeitures” to someone else even before the
conviction was made. The potential beneficiaries of these promised rewards, who
were often powerful people, might try to influence the case and press for a
conviction. The person granted the gift would in effect turn prosecutor. This type of
corruption was the cause of widespread resentment towards the monarchy during the
decades leading up to the Glorious Revolution."
This explanation satisfied the inclusion of the phrase "grants and promises" which seemed otherwise incongruous and belied the common understanding of the Article which would sit more comfortably if it had simply stated : "That all fines and forfeitures before conviction are illegal and void".
That's not to say that I'm not implacably opposed to DPE and other fines masquerading as "Penalty Payments". These include the £100 late tax return penalty and the DVLC £80 penalty currently being pushed with those disgraceful and threatening radio and TV ads. But there are better ways to fight DPE using the sloppy preparation of RTA 1991 documents, as highlighted in Neil's columns, as well as the HRA 1998.
For example, ECHR rulings in Case 102/81 ‘Nordsee’ Deutsche Hochseefischerei [1982] ECR 1095, (paragraphs 10 to 12), and Case C-126/97 Eco Swiss [1999] ECR I-3055, (paragraph 34) seems to make it clear that for the purposes of Article 6(1) HRA the PaTAS and NPAS tribunals are not lawful tribunals at all as they are effectively ex-parte.
Article 6(3)(d) HRA, though referring to criminal prosecutions, provides the right to cross examine witnesses to test both evidence and reliability. One commentator says "The European Court of Human Rights has interpreted this provision in the light of the general principles on the right to a fair trial in Article 6 (1)"; so 6(1) and 6(3)(d) are inextricably linked. When a PCN is issued, the PA is the most important, if not the only, witness to the events. Now the appellant at the tribunal has no RIGHT to call that witness, only the adjudicator has the ability to make such an order. In other words the very fabric of the adjudication procedure is in violation of Article 6(1).
In the rush to extort money from us, disreputable governments and local authorities have nevertheless provided us all with the tools to fight them to a standstill. All that is required is that every single PCN be brought to adjudication and the system will collapse. There are many people who simply do not have the confidence and knowledge to face an adjudicator; but they can be represented by a friend who is not necessarily legally qualified. Perhaps we should think of creating regional help groups who can guide, assist and maybe even represent our countrymen in a fight against this pernicious evil.
Hi Dick Russel, thats a very interesting angle that I had never considered before, however could it not be argued that Parliament by allowing Local Authorities to keep the parking penalties is in actual fact promising to grant those fines before a conviction in the very minor crime of overstaying a parking meter?
I would say that the principle is the same - promising monies to a third party if they can 'trump up' a offence at some point.
Anonymous (1.03PM) Hi!
The point about "grants and promises" vis-a-vis the Local Authorities is interesting though I doubt it will carry much weight particularly in the light of the current ruling. I think that any way forward using the BoR will depend on exactly how the judge came to his conclusion. If, as it seems, he thinks that parking tickets are not fines or forfeitures then I believe there are substantial grounds for appeal. Either the BoR is in full effect per Thoburn, or it isn't; but Justice Collins is in no position to overturn Thoburn so I believe his judgement is based on the "parking tickets are not fines" argument following the notion that fines can only be issued pursuant to a criminal conviction.
The Bill of Rights is well known for what is generally referred to as Article 12 though the original document does not use numbered paragraphs, or indeed paragraphs at all. What seems to be always overlooked is what is known as the preamble which contains the opening list of grievances. What are referred to as the Articles are these grievances which are effectively traversed and, by way of a remedy, it is stated that the associated actions are illegal. The sections that refer to Article 12 are as follows:
"And several grants and promises made of fines and forfeitures, before any conviction or judgment against the persons, upon whom the same were to be levied."
"That all grants and promises of fines and forfeitures of particular persons before conviction, are illegal and void."
The similarity is striking, and yet there is one major difference: the first paragraph says
"before any conviction OR judgment"
It is reasonable, therefore, to assume that Article 12 can be safely extended to read as follows:
"That all grants and promises of fines and forfeitures of particular persons before conviction or judgement, are illegal and void."
A conviction clearly relates to the imposition of a fine by a criminal court, and judgement refers to a fine or other penalty obtained in a civil court. That’s what happens in a civil court: you get judgement against the defendant (or plaintiff)!
A modern interpretation of Article 12 can therefore be offered based entirely on the contents of the Bill of Rights and wholly in line with what is commonly believed to be its purpose and intention:
"Neither a fine nor other financial penalty may be imposed unless a relevant criminal conviction or civil judgement is first obtained"
I think that is a perfectly reasonable interpretation. It allows for the imposition of civil penalties, after having obtained a suitable judgement, thereby removing the grounds on which many adjudicators have disallowed appeals based on this defence. Clearly the current judgement has, for the time being, denied anyone the ability to use this argument at any adjudication. I nevertheless believe it is a strong argument which could be used at any appeal against Justice Collins' decision or at any future hearing for a Judicial Review: Justice Collins' view is not binding! Lets just hope no one else cottons on to the alternative meaning of "grants and promises"!
Indeed, the Bill of Rights has already been deemed valid in a civil 'judgement'.
Bowles -V- Bank of England 1912,the judgement of which, was that the Bill of Rights may not be ignored by the Crown was such a civil case.
Judge Collins chose to ignore it. What will become apparent when the transcripts are provided, is the Judge ascerting "I am Judge and that's that!
Dick Russell ........... Hi
"Non in legendo sed in intelligendo leges consistunt".
(The laws consist not in being read, but in being understood)
The Claim of Rights 1628 amplified and confirmed by the Declaration and Bill of Rights of 1688/9 ensures that no law may be suspended or dispensed with unless with consent of Parliament. (given in judgement by Lord Bingham, House of Lords: Diane Pretty, Motor Neurone disease case, Nov. 2001) Which in turn means that suspension or dispensing of law can only be made by the express agreement of Parliament. In other words by Statute, ensuring ‘The Rule Of Law’
Mr Justice Collins should take cognisance of section 6.1 & 11 of HRA 1998 Section 11 of the Human Rights Act 1998 A person's reliance on a Convention right does not restrict-
(a) any other right or freedom conferred on him by or under any law having effect in any part of the United Kingdom;
Using the principle of Pepper v. Hart, which allows us to refer to what was said in Parliament to determine what the intention of Parliament was, we can determine what the original contract between crown and people is;
"The Rights of the people had been confirmed by early Kings both before and after the Norman line began. Accordingly, the people have always had the same title to their liberties and properties that England's Kings have unto their Crowns. The several Charters of the people's rights, most particularly Magna Carta, were not grants from the King, but recognition's by the King of rights that have been reserved or that appertained unto us by common law and immemorial custom."
(Sir Robert Howard, a member of the Committee's which drafted the Bill of Rights).
I think you will find that (Confirmatio cartarum [25 Edw. I] [29] is still good law.
No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.
The express agreement of Parliament........the European Communities Act 1972
The National Parking Adjudication Service in the UK is not a court of Law and it is certainly not a court of law within the meaning of Article 234 EC, therefore the adjudicators decision will be in contravention of Article 6 of The European Convention on Human Rights
Well this discussion is becoming very interesting and, dare I say, quite learned!
Both Anoneumouse and Anonymous make good points. Bowles -v- Bank of England indeed makes it clear that the BoR is still in force but is otherwise concerned with a technical constitutional point as to when exactly the government is in a legal position to collect taxes.I don't think for a moment that Justice Collins will assert that the BoR no longer applies particularly in the light of Thoburn and the Speaker's reminder to Parliament in 1993 that the BoR has never been repealed and that every citizen can still rely on its provisions. The judgement, from what little we know about it at the current time, seems to be along the lines that PCN's (and presumably other "financial penalties") quite simply are not fines or forfeitures. Presumably if, at some time, it can be shown that they are then the decision should logically be reversed.
The judge's comments referred to in the Press Association Report allude to many Parking Adjudicators having been faced with this argument. There seems to be a commonality in many of the decisions that I've read that the difference between PCN's and Fines is that PCN charges go to the local authority whereas fines go to the Crown. Similarly, non-payment of a PCN can only result in enforcement via the County Court (Northampton, in fact under, the scandalous Bulk Enforcement procedure) whereas non-payment of a fine imposed by a Criminal Court can result in imprisonment. To be honest, that argument does have merit.
It was after having read these arguments that I looked more closely at Article 12 BoR and the associated Preamble to develop the argument that Article 12 does indeed apply to civil as well as criminal financial penalties. I had previously paid a PCN with the objective of bringing the matter before my local County Court to recover the payment on the basis that the charge was unconstitutional per BoR. Fortunately, just before issuing the proceedings I came across two other cases brought before county courts under BoR and HRA 6(1). Both were struck out on application for summary judgement with costs of about £1,000.00 awarded against the plaintiffs! Apparently as the payments were pursuant to Statute (RTA 1991) the county courts had no jurisdiction: even under HRA which seems unbelievable!!!
I had hoped to contest my next PCN at adjudication arguing the BoR Article 12 "extension" whereby it refers to civil as well as criminal penalties. Unfortunately, until Justice Collins is overruled that won't now be possible. So, it seems that the HRA currently offers one of the few remaining avenues of contention. Anoneumouse seems to endorse my view that neither PaTAS nor NPAS are Tribunals within the meaning of HRA 6(1) though I can't see any adjudicator going along with that and ruling his own proceedings ultra vires.
Following Lukher and Grosskopf I submitted a FOI request to my Local Authority requesting copies of the NtO and Charge Certificate. The Charge Certificate does seem compliant but the NtO, the initiating document, most assuredly is not! I sent copies of both Lukher and Grosskopf to the Borough Solicitor and demanded that the NtO no longer be issued in its current form. I furthermore demanded that all persons that had made payments pursuant to the receipt of the NtO, as well those currently in receipt of a copy but have not yet responded, be advised of the two decisions under the ECHR doctrine of "Equality of Arms". Needless to say I have not yet received a reply. I am therefore now in the process of attempting to publish the documents in the local press after which, hopefully, the local authority will be besieged by angry Council Tax payers demanding a refund of PCN payments that have been illegally extorted from them.
Even after Justice Collin's decision, the fight can still go on!
Dear Dick Russell,
Thank you for putting forward such an excellent argument and some very god points.
I believe that the crux of the matter, is the definition or lack of, exactly what a Penalty or Penalty Charge is.
We are concentrating on the BoR and the modern interpretation of article 12, yet in reality, there can be no doubt as the BoR itself, has never before found itself to be the questionable nor indeed the issue.
The issue has arisen, not from BoR, but from the RTA 1991 that is inherent on the establishment's attempt to "twist & fit" bad law into our Justice system. In Paul Smith's words, this is a 'fudgement'.
Justice Collin's ruling is quite frankly de fa0cto as it has no bite. The conflict still exists but by bad judgement, and lack of a definition for 'Penalty'; why we are all looking towards the BoR as opposed to the true Culprit; the 1991 RTA. I believe any subsequent appeal will have to address such a conflict else out constitution will have to remain in limbo.
The absurdity of the implementation of the Adjudication system, the 'fudgement' and the 'twist and fit' approach, is amplified when using Article 234 as defence. Thus far, the defence has been merely brushed aside by both PATAS & NPAS as not being applicable; which is quite ironic as Article 234 brings into question the independence and subsequent legitimacy of the very service that dismisses it so.
Again a conflict has arisen, article 234 means that it is the adjudication service that must bring the matter before the EU Courts and not the appellant, it also is quite clear from 234's text that is what was intended; yet here we have a system where the Adjudicators have dismissed Constitution law. Such an action is well outside their powers, as is the dismissal of the Bill of Rights.
Justice Collins said “The only surprise I have is that this argument has been produced on a number of occasions and seems to have worried local authorities and possibly even adjudicators". "All I can say is that they should cease to worry. It is as I say a completely baseless argument". It is at this point, the Judge has all but ripped up the BoR; twice within these few sentences he has chosen/subconsciously asserted that it is by his authority that there is a baseless argument. Twice he uses I, as opposed to allowing facts speak for themselves. This is twist & fit at its worst as in these few lines, the Judge has all but reassured Councils and Adjudicators, that they do not have to worry about future actions, if you believe that an argument’s baseless, then that it what it is; don't worry about it, you have nothing to fear from us Judges.
Such conflicts will not continue without grave consequence as will become apparent over the coming weeks.
Kind Regards
Wayne R Pendle
Oh yes, I forgot to mention, the interpretation act 1978 appears to leave us in no doubt that Penalty is aligned with forfeiture or that it is indeed punitive.
16.-General savings.
(1) Without prejudice to section 15, where an Act repeals an enactment, the repeal does not, unless the contrary intention appears,-
(a) revive anything not in force or existing at the time at which the repeal takes effect;
(b) affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment;
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under that enactment;
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against that enactment;
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed.
BR
Wayne Pendle
Does anyone know when we can expect to see the complete judgement will be available on the internet?
This judgement could well be part of an effort to circumvate the Bill of Rights. The reason I say this is because the Identity Cards Act 2006 allows for the use of 'Civil Penalties' rather than fines.
Could this be proof that the Government have woken up to the BoR and they 'need' this judgement to protect their ID Card scheme that they know stands a good chance of creating lots of public resistence.
Much much more besides, parts of the traffic management act 2004 being one.
So if they are 'not fines' then he is confirming that the Bill of Rights is still in force and if they were fines they would be illegal.
Thats the thing about rights, the people who are disregarding your rights are not ever likely to recognise your rights. Sometimes you have to stand up and struggle to maintain those rights.
Would this be the same Judge Collins who threw out a claim under Protection from Harassment Act 1997 a few months ago (Majrowski vs Guy's & St. Thomas's NHS Trust), the one that the Court of Appeal ruled against him in March and the appeal by the Trust that the Law Lords have just thrown out (12th July 2006). In the words of Private Eye "I think we should be told". Onward and upwards :)
Interesting analysis from Tony: is that Wittgenstein or Russell?
I find myself having to agree that, looking very narrowly at the Fines/Forfeitures versus Financial Penalties issue, Justice Collins' reasoning "was hardly defective". He has merely taken the view of many adjudicators that if the proceeds of a financial penalty do not go to the Crown it is not a Fine for the purposes of construing the BoR. All the hyperbole about tearing up the BoR is hardly warranted.
I also find myself agreeing wholeheartedly with Tony's comment that the judge "is not there to fish for truths, but listen to the arguments in presentation."
I am, nevertheless, somewhat concerned that the judge clearly had strong views on the matter per his comment that: "The only surprise I have is that this argument has been produced on a number of occasions and seems to have worried local authorities and possibly even parking adjudicators. All I can say is that they should cease to worry. It is, as I say, a completely baseless argument".
With those kind of preconceptions just how fair a hearing could anybody expect?
If the BoR is to be successful in breaking DPE it must be shown to cover Civil as well as Criminal penalties. I have mentioned previously in this thread that the phrase "before any conviction or judgment" is used in the preamble associated with Article 12 and hopefully that may help.
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