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Summons to Magistrate's Court for breaching Railway Byelaw
AnonymousMouse
post Wed, 12 Jun 2019 - 20:22
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Hi and thank you for having me...! I have posted the below (now tidied up after some questions) on MSN and the Rail forums and both sides suggested I ask for specialist advice here. I hope you can help...

I've received a summons to the Magistrate's court over 2 occasions on which my car was parked in a railway station carpark without paying. The TOC itself is taking me to court and there is no mention of any debt collectors or similar, although on searching through paperwork I have received 3 reminders about these occasions from 3 different companies (ZZP, Indigo) which I unfortunately did not engage with. The occasions referred to in the summons are still within the 6 month deadline and the court date is in 2 weeks.

I have no legal knowledge whatsoever and have been looking for advice on what to do/what can be done when you receive a summons to a magistrate's court. I have had answers to the following:

- The summons is for a court that is over 80 miles from where I live. Do I get a say in where this takes place?
I understand I do not.
- The summons is for a date which I cannot make because I have a work engagement. Do I get a say in when this takes place?
I understand I do not, although I can choose not to appear but then the case will carry on without me.
- Apart from reminders of the 'fines' which were raised to £170 each, I have not received any notice of an intention to prosecute or an opportunity to defend myself to the TOC (although I realise I should have asked the debt collectors questions). Have I missed a letter or is this step not necessary for a Magistrate's court?
I understand you can be taken to a Magistrate's court without many warnings.
- Does anyone have any advice on what to do next?
I understand that the Summons is a little odd because it confuses Criminal with Civil, and this influences the process. I also understand there may be a technicality around the missing legal entity after Govia in the summons. I have tried to seek some free advice locally which I was advised, but I cannot find anyone specialist enough and the general advice has been that it may cost more than the fine if I am found guilty (although this can be close to 4 figures). I have also had advice that I could risk pleading not guilty due to the odd summons but that I may not 'win'.

Could anyone help me understand how I could tackle this? The driver did not pay for the two tickets because they always pay by mobile app from the train (a habit that has become established after many years of doing so, and parking in the same place 3-4 times a week) and on those two occasions the app failed and the driver was already underway on the train. The driver has no evidence of this, just evidence that they do pay on all the other occasions via the app.

I have uploaded the 3 letters from debt collectors and the summons, hopefully suitably redacted, into a dropbox: https://www.dropbox.com/sh/ihctpv0mr9rwbtk/...mSUwI2HGza?dl=0
I kept getting this wrong and revealing my identity so I hope I have now done this right and it is all completely anonymous but still clear.

Thank you so much in advance!
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Sheffield Dave
post Wed, 9 Oct 2019 - 10:23
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Just a point of clarification: was this hearing at the magistrates court and heard by a magistrate, or what?
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AnonymousMouse
post Wed, 9 Oct 2019 - 10:51
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Hi,

It was in the Magistrates Court, having been adjourned from the normal mags where the follow-up hearing had been scheduled to a DJ in Birmingham Mags. We thought the Magistrates had requested it due to the technical nature of the case, and because I only received notification that the court had been 'vacated' on the original date. In their 'week before' SA, the other side wrote it had been moved on their request (not that I had seen any comms!).

Mouse
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HappyHarry
post Wed, 9 Oct 2019 - 12:42
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I’m so sad that you’ve had to go through all this Mouse. You were put in an appalling position by Wright Hassell. Thank you for your detailed reports.


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“Nobody leaves their house because they want to go and do some parking; parking is simply a means to an end, and it should be as easy as possible.” Rishi Sunak, MP
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Sheffield Dave
post Wed, 9 Oct 2019 - 14:02
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And well done to dramaqueen to for the support.
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Dave65
post Wed, 9 Oct 2019 - 15:09
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So, where does it leave similar cases NOW?
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Sheffield Dave
post Wed, 9 Oct 2019 - 15:28
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Well it appears that their toe dip in the water of going down the "decriminalised penalty" route has been a fiasco, and if their costs request was realistic then they've just lost in the region of £5000. So in future I should imagine they won't try this again. They'll either go for a classic byelaw prosecution or perhaps try their hand with breach of contract in the county court. or just give up after lots of bluster.
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anon45
post Wed, 9 Oct 2019 - 22:50
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I don't agree that the case has been a fiasco for Saba/ Wright Hassell; on the contrary, they'll be absolutely ecstatic at the outcome of the case, both by the criminal convictions of the OP and huge costs imposed to 'pour encourage les autres' into simply paying their fraudulent fake byelaw 14 penalties. I also don't believe for one moment that their costs were even one tenth of the amount claimed (so they've likely made a nice profit from the prosecution), and, insofar as they might have been slightly higher than this, this was their own fault.

To repeat, they brought a prosecution in an attempt to punish the OP for not paying a ransom that they had no right to demand, and in an attempt to make an enormous profit, whilst not having any evidence at the time of bringing the prosecution that the OP personally committed the offence.

They'll probably try the same thing again, using the same threats, the same bully-boy tactics and the same discredited arguments- after all, this case does not set case law, and given that they've extracted c. £800 from the OP, why would they not want to try the same again to browbeat future defendants into pleading guilty, and future RKs into paying their unenforceable ransom demands masquerading as fake byelaw 14 penalties.

In retrospect, as I suggested in my previous post, it might have been better for the OP to plead not guilty, not make any admissions at any point, including in the original hearing, and put the prosecution to strict proof, beyond reasonable doubt, that he/ she personally committed the offences. Indeed, this would have been the course of action which I would have advised; it is a great pity that the OP was advised to make a full confession to two criminal offences at a time when Saba had no evidence at all, let alone sufficient evidence, to prove the case beyond reasonable doubt.

Guidance issued by the Magistrates Association, quoting extensively from case law, suggests that simply being the RK is insufficient to prove on its own, to the required standard in a criminal case, that the defendant was the driver, and it is often said on this forum that, in the absence of a forced confession under s. 172, the CPS are unlikely to be able to prove speeding or similar camera-detected offence to the required standard. Here, the prosecution does not even have the circumstantial evidence/ adverse inference of a failure to respond to a lawful s. 172 request that the CPS would have in a motoring related/ s. 172 case.

Furthermore, detailed and lengthy advice from a retired barrister, as provided to the OP prior to the case, is very clear that the TOC or agent will almost likely find it impossible to prove the case to the required standard in the absence of an admission.

However, it's too late now, although I agree with The Rookie that the costs order is unreasonably high under all the circumstances, perhaps to the point of being challengeable on appeal.

Was any attempt made to stay the proceedings as an abuse of process, based on:
1) repeatedly bringing the case in the wrong venue and on the wrong grounds, repeatedly misleading the court(s) in the process;
2) the repeated adjournments- caused solely by fundamental and basic prosecution errors, rather than by any error or delay on the part of the defendant;
3) the associated rescheduling without proper notice, and the detrimental* and disproportionate impact of such adjournments on the defendant's case preparation and on her everyday life, particularly given the relatively trivial nature of the underlying offence,
4) the likely fraudulent attempt to inflate their costs to several multiples of the actual figures, and;
5) by pursuing part of a prosecution against the "owner" which was both frivolous and vexatious, and could never succeed?

*The OP had admitted to being the driver, and been directed to file witness statements, in the context of what she was told by Wright Hassell and by the court was merely a civil proceeding- only to then find that evidence taken and used against her in a criminal prosecution. At a minimum, this evidence as to driver identity should have been struck out as an abuse of process, if the whole case was not, as it ought to have been, stayed as an abuse of process.

This post has been edited by anon45: Thu, 10 Oct 2019 - 21:10
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dramaqueen
post Thu, 10 Oct 2019 - 00:52
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Of course it was argued it was an abuse of process. That’s what the last-minute skeleton argument was all about. The arguments didn’t succeed.

As for giving evidence: the OP was actually directed by the Magistrates to file and serve a witness statement (which of course wouldn’t have happened if they’d been treating it as a criminal case).

But supposing she had made no admissions before coming to court, and had pleaded not guilty. Would she have been acquitted? Extremely unlikely.

ZZPS had evidence of non-payment on a number of occasions (only when the payment facility failed, I hasten to add). The Court knew she had received multiple penalty notices in the past - that evidence was already before the court, before the question of its admissibility could be raised. In any event, the chances of it being admitted as similar fact evidence were high.

A half-time submission of no case to answer would therefore almost certainly have failed. Nor could she have defended herself by giving evidence. Remembering rsooty, who was convicted with no evidence at all as to who was driving, she would have been taking an enormous risk with the odds stacked much more heavily against her.

As it was, the judge clearly accepted her mitigation - as reflected in the low fines ( he accepted she was not a deliberate non-payer, but commented she was aware of the risk she was taking by continuing to use such a dodgy app).

As for costs - yes, painful. But the other side certainly got a bloody nose too, if that’s any consolation. Their barrister told the court the £6800 was an under-estimate and their true costs were a great deal higher. Certainly, as their schedule of costs showed, their London barrister did not come cheap.

The OP was badly let down by the system. The complaint should have remained as a civil matter and been dismissed. But it wasn’t. I can assure you it wasn’t for the want of trying. So your remarks, anon45, are a little bit unhelpful.

This post has been edited by dramaqueen: Thu, 10 Oct 2019 - 01:01
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Sheffield Dave
post Thu, 10 Oct 2019 - 08:16
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Did the DJ provide any rationale as to why the civil case was retrospectively a criminal case all along?
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Sheffield Dave
post Thu, 10 Oct 2019 - 09:05
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Apart from the stress and cost to AnonymousMouse, the upside to the community as a whole, as I see it, is:

The TOC initially tried a novel approach, one which is uniquely hostile to defendants: a civil matter involving only civil burden of proof, but (unlike small claims) one where the costs aren't strictly limited, and the defendant doesn't the have choice of venue location. Also one where (apparently) the TOC rather than the state get to pocket the penalty fee.

This new approach has been soundly seen off due to robust standing-of-ground by AnonymousMouse - the fact that they changed it at the last minute to a standard byelaws prosecution is a tacit admission that that the new approach was doomed.

So, I think that (a) they won't try this approach again, and (b) if they do, we'll have a much better idea how to handle it, e.g. demanding right from the start for the TOC to declare whether they are pursuing a civil or criminal matter.

Then again, IANAL.
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The Rookie
post Thu, 10 Oct 2019 - 09:11
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I think with hindsight a number of things could have been done differently (hindsight clearly not available at the time)
Never revealing driver ID
Wasted costs order at every step where Govia/WH had not got their act together.
Asking for the WS to be struck out as being obtained via a clear abuse of process (so no driver ID).
Application on 'trial day' for an adjournment (and wasted costs order) due to the fundamental change in the process.
Application for there to be no jurisdiction as the correction to a criminal charge was outside the 6 months limit and amounted to a completely new 'summons', I don't believe this change would fall within the 'slip rule' as the defendant was clearly disadvantaged to a massive degree. I think that alone could warrant an appeal.

Wasted costs order could well have come to a greater amount than the costs awarded even if the rest was unsuccessful.


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dramaqueen
post Thu, 10 Oct 2019 - 10:13
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Ah c’mon guys, don’t get blinded by the strength of your own arguments,

Everything - everything - was tried that could have been tried. The suggestion the amendment to the summons did not fall within the slip rule was indeed argued. So was the fact that the OP was unfairly disadvantaged. So was abuse of process. So was WH’s failure to do or say anything for 4 months although they knew both the OP and the Court were proceeding as for a civil case. All these arguments were put forward, I can assure you. They did not succeed.

It’s all very well to talk about adjourning/appealing but that would have involved immense financial risk to say nothing of the stress. Even if she’d had a 90% chance of succeeding, the costs and fines would have soared if she’d lost. Isn't the first rule of gambling: never lay a bet that you can’t afford to lose?

To answer Sheffield Dave: the DJ’s basis for ruling it was a prosecution was that an Information had been laid shortly before the summons on complaint was issued. Presumably it was in addition to the civil complaint, ready to pounce if the civil proceedings failed. Who knows? The OP knew nothing about it until ZZPS exhibited it to their statement.






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The Rookie
post Thu, 10 Oct 2019 - 12:52
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Thanks for the extra information.

I still think there is scope for an appeal based on the jurisdiction and abuse of process (multiple) not least if they witheld the fact they had a summons for the criminal charge that wan't initially progressed and not served for muliptiple months so they could try and progress the civil claim first, which from the posts seems to have been claimed as a mistake yet one you now say they well knew about having already raised 'the correct' paperwork - laughable really.


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There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

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anon45
post Thu, 10 Oct 2019 - 20:46
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QUOTE (dramaqueen @ Thu, 10 Oct 2019 - 01:52) *
But supposing she had made no admissions before coming to court, and had pleaded not guilty. Would she have been acquitted? Extremely unlikely.

ZZPS had evidence of non-payment on a number of occasions (only when the payment facility failed, I hasten to add). The Court knew she had received multiple penalty notices in the past - that evidence was already before the court, before the question of its admissibility could be raised. In any event, the chances of it being admitted as similar fact evidence were high.

A half-time submission of no case to answer would therefore almost certainly have failed. Nor could she have defended herself by giving evidence. Remembering rsooty, who was convicted with no evidence at all as to who was driving, she would have been taking an enormous risk with the odds stacked much more heavily against her.
I profoundly disagree with the statement that an acquittal would have been extremely unlikely in the absence of any admission.

Based on the case law, and on the Magistrates Association statutory guidance, rsooty was clearly wrongly convicted with, as you correctly state, no evidence at all as to who was driving- and therefore no evidence at all that the defendant committed the alleged offence; the unfortunate outcome in that one erroneously decided- and perhaps weakly defended- case, which did not set a binding precedent, should not have been used as a reason to roll over and plead guilty. If rsooty had appealed against conviction to Crown Court, and hired a local solicitor to represent her and remind the Crown Court of the correct burden of proof, she almost certainly would have had her conviction quashed.

I don't understand why so many people seem to treat the rsooty case outcome as binding Supreme Court case law that TOCs and PPCs are exempt from the usual burden of proof imposed on the prosecution in all other criminal cases, and will secure byelaw 14 convictions even wihout providing any evidence at all- when actual case law so clearly states to the contrary.

Even if Wright Hassell had produced evidence of previous unenforceable fake penalty invoices previously issued to the RK/ defendant (as held by the court itself to be inherently unenforceable "offers of out-of-court settlements"), so what? This proves absolutely nothing whatsoever, either as to who was driving in the past incidents, whether the parking in the past incidents actually amounted to a offence rather than an unproven allegation of an offence, or, most pertinently of all, whether the OP was driving on these two specific occasions for which she was charged?

Finally, given that ambiguous criminal statute must be interpreted in the manner most favourable to the defendant- and given the unfortunate admission as to driver identity- was any attempt made to argue that, under the proper construction of byelaw 14, the offence of "failure to pay" is committed when and only when there is an opportunity to pay, such that no offence is committed if the driver is unable to pay through no fault or neglect of their own?

As for the comment on gambling, all I can say is that, in that case, if she couldn't afford to fight the case- to appeal if necessary-, she might as well as simply rolled over and paid the fake byelaw 14 penalties in the first place, rather than folding as soon as put under pressure. I don't believe for one moment the claim of £6,800 in costs, let alone that it was an underestimate, and I doubt that the costs would have been substantially higher if convicted regardless after a not guilty plea (if they were, that would be yet another ground for appeal). If there was, or is a 90% chance of succeeding with an appeal, then, rationally, the increase in costs would have to be enormous to make an appeal inadvisable.

The apparent failure to pursue an adjournment or appeal, or indeed to hire a solicitor to ensure some form of 'equality of arms', sits uneasily and at odds with the statement that "everything- everything was tried".

I'm told that the forum has a 'fighting fund'- would it not be possible even now to use this fund to try to appeal against the erroneous refusal to strike out the unfairly obtained evidence, against the clearly incorrect decision that the "protective" summons was not an abuse of process (as discussed in more detail in this 2013 thread: http://forums.pepipoo.com/index.php?showto...p;p=781573& , and as in other historic cases where a CoFP has, unwisely, been issued in such timescales as to render a subsequent summons time-barred, and the CPS has unlawfully attempted to lay a "protective" prosecution in anticipation whilst the CoFP is still outstanding), and against the wrongful acceptance of the major time-barred amendment to the summons (oh, and also as to sentence/ costs)?

After all, what are the appeal courts for, if not to correct glaring legal errors and injustices such as here?

The Government previously made noises about limiting the ability of private organisations to bring prosecutions- apparently based on a handful of overzealous prosecutions by the RSPCA- but this is far, far worse, in so many levels, with the prosecution being brought- against a person whom they had no real evidence against at the point of bringing the prosecution- to punish for not paying a fraudulent ransom demand, to (try to) profit vastly, and to intimidate others into paying fake and likely fraudulent phantom byelaw 14 penalties.

Wright Hassall's apparent strategy was to maximise their claimed costs bill, in order to intimidate the OP (with whom I have every sympathy) into pleading guilty, not seeking an adjournment, and not seeking to appeal the clearly erroneous decision of the magistrates that no abuse of process had occurred.

This post has been edited by anon45: Sun, 13 Oct 2019 - 22:09
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Dave65
post Thu, 10 Oct 2019 - 21:45
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The "fighting fund" was a topic a few years ago and was headed by Lyndzer.

He dropped of the radar a year or so ago and has appeared recently on and off.

I think the fund idea was for a court case such as this.
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dramaqueen
post Fri, 11 Oct 2019 - 15:33
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I think I should respond to some of the points raised in Anon45’s last post. I’m not sure how to do multi-quotes so I’ve put the quotes in italics:-

1. “I don't understand why so many people seem to treat the rsooty case outcome as binding Supreme Court case law that TOCs and PPCs are exempt from the usual burden of proof imposed on the prosecution in all other criminal cases, and will secure byelaw 14 convictions even wihout providing any evidence at all- when actual case law so clearly states to the contrary”.

People come here for advice. Even if the law appears to be on the Defendant’s side, they should be warned that the Court might not see it that way. Rsooty is an example of just that, nothing more.

2. “Even if Wright Hassell had produced evidence of previous unenforceable fake penalty invoices previously issued to the RK/ defendant (as held by the court itself to be inherently unenforceable "offers of out-of-court settlements"), so what?”

For criminal proceedings, the enforceability or otherwise of the private penalties is irrelevant. There was prima facie evidence that the vehicle was parked without paying on a number of occasions. If she had pleaded NG, and then remained silent – not even saying “it wasn’t me” – the magistrates would have been entitled to draw adverse inferences. In my view they probably would have done. I accept that you disagree.

3. “Finally…..was any attempt made to argue that, under the proper construction of byelaw 14, the offence of "failure to pay" is committed when and only when there is an opportunity to pay, such that no offence is committed if the driver is unable to pay through no fault or neglect of their own?”

She pleaded guilty. That means not maintaining a defence. And if she had pleaded not guilty, how would the court have known there was no opportunity to pay unless she gave evidence - and therefore disclosed who was driving?

Anyway, to put your mind at rest: yes, this argument was indeed raised in the submissions for the civil case which never got heard. She argued that the obligation to pay must be subject to the proviso that once on the train (and therefore committed to parking) the means to pay would be available; and that since the proviso was not fulfilled, no breach of the Byelaws occurred. She also quoted the words of Sir Greg Knight at the 2nd reading of the Parking Bill: “If there are a number of payment machines and one of them is not working, that is not an excuse, but if there is only one machine or all the machines are out of order, that ought to be a perfect defence.” See column 1152, here:
https://hansard.parliament.uk/commons/2018-...OfPractice)Bill
- 1152 Hansard

The OP’s problem was that this had happened on a number of occasions. As the DJ said, she took the risk. In any event, you will also remember that you advised (post 14) that the problems with the app would likely to be seen as mitigation rather than a defence.

4. “I doubt that the costs would have been substantially higher if convicted regardless after a not guilty plea ....”

Certainly the fines would have been higher. If an offence is not serious, the defendant knows he did it, and the chances of conviction are high, it’s usually advisable to plead guilty at the first opportunity.

5. “The apparent failure to pursue an adjournment or appeal, or indeed to hire a solicitor to ensure some form of 'equality of arms', sits uneasily and at odds with the statement that "everything- everything was tried".

OK I’ll amend that: everything within reason was tried.

6. “…..the prosecution being brought …to punish for not paying a fraudulent ransom demand, to (try to) profit vastly, and to intimidate others into paying fake and likely fraudulent phantom byelaw 14 penalties.”

Yes, there can be no doubt that many prosecutions are brought pour encourager les autres. Other TOCs do it too. The threat of prosecution is a very powerful weapon and no doubt many people are intimidated into paying up. Sadly that is the position.



This post has been edited by dramaqueen: Mon, 14 Oct 2019 - 10:37
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instrumentsofjoy
post Fri, 11 Oct 2019 - 17:17
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QUOTE (Dave65 @ Thu, 10 Oct 2019 - 22:45) *
The "fighting fund" was a topic a few years ago and was headed by Lyndzer.

He dropped of the radar a year or so ago and has appeared recently on and off.

I think the fund idea was for a court case such as this.

I think that it was originally for a court case at LJA, should one happen. I am still happy to chuck in the tenner I originally promised for something like this which I regard as a disgrace; and finally I think it was Lynzzer.
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AnonymousMouse
post Fri, 11 Oct 2019 - 21:12
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Hi,

Thanks everyone for the support and the lovely PMs. :-)

With regards to a few of the posts, I think that as someone said previously, hindsight was not available on the day. I for sure was grateful that dramaqueen had supported me so much in the run up to the day, spent hours researching and helping me draft submissions, and then rescheduled her life to suit the new date and travelled quite some way to be there with me in person and speak for me. Maybe we didn't get everything right (we certainly tried everything) but without dramaqueen it could have been A LOT worse! I have no legal knowledge whatsoever and up until a week before the hearing, I thought we were defending a civil case (which is why I didn't hire a solicitor). I am surprised the DJ ignored all the clear errors dramaqueen pointed out and let the case go ahead, but once that happened there were no other sensible options.

If there is a way, I am up for an appeal but it would have to be done off-forum because unsurprisingly WH and a lot of other vested parties read these forums.

AnonymousMouse
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anon45
post Sun, 13 Oct 2019 - 22:45
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Firstly, I wish to acknowledge the heroic efforts of dramaqueen.

It’s often said, with justification, that the magistrates’ courts look dimly on ‘technical defences’ (c.f. Gidden, of this forum, having to appeal to the High Court to get his speeding conviction quashed owing to the NIP being time-barred owing to late service) https://www.bailii.org/ew/cases/EWHC/Admin/2009/2924.html, and that they sometimes carry the prosecution’s burden for them, or even, as in the rsooty case, disregard the burden of proof altogether and convict despite the total absence of prosecution evidence.

It sounds like an appeal to the High Court on the abuse of process (and related) arguments would have reasonable prospects of success- a matter on which professional advice would presumably have to be taken- likely at a price in itself- but I would understand if the OP is not willing to pursue the matter further and wish her well in any event.

I understand that not all OPs have the same level of resources as Peter Gidden- or James Mayhook (http://forums.pepipoo.com/index.php?showtopic=64994).
Future OPs who receive ransom demands aka ‘demands for money not to prosecute’ masquerading as byelaw 14 statutory penalties will need to consider their position carefully. Matters to be considered will include the facts (an RK who was genuinely not driving is in a strong position), the likelihood of a prosecution (greater for apparent ‘repeat offenders’- as the OP may have been perceived as being), the prospects of the prosecution being able to prove the identity of the driver to the required standard, and the OP’s attitude to risk, including financial risk. This in turn includes the possibility of having to appeal a conviction in order to get a fair hearing in the first place.

It is clear that the fake byelaw 14 statutory penalties are not enforceable, and claims to the contrary by Govia/ Saba/ Wright Hassall are false. As to contract law and claims that the charge is akin to the Beavis charge, the distinctions are that:
1) The signage and paperwork all insist that it is a statutory charge rather than a contractual charge, making it difficult to later argue the contrary in court;
2) In any event, a person cannot enforce a contract to do that which is a criminal offence, such as, in this case, parking in circumstances forbidden by byelaw 14.

I expect Govia/ Saba/ Wright Hassall to try the same thing again, either by prosecuting directly or by pursuing the fake byelaw 14 penalty (and unlimited “costs”) at a civil hearing in the magistrates’ courts, before switching to a ‘conventional’- and perhaps, less profitable, prosecution in the event of resistance. I hope that a future OP will be able to take a similar defence on and win.
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