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FPN for skip ramp.
Neil B
post Wed, 2 Oct 2019 - 15:23
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One for some friends and not my area of knowledge so all suggestions welcome.

Couple near retirement refurbing their house and get this, to me, nonsense.

In an area blighted by flytipping, which the council clear fairly promptly but nearly always fail to investigate
and prosecute.
Instead they pick on decent, law abiding residents who were doing the right thing.

Skip was fully licensed and ramp was only in place while, intermittently, in use; not overnight.

Any advice?

Tom and Rose 3 by Neil Black, on Flickr

Tom and Rose 2 by Neil Black, on Flickr

Tom and Rose 3 by Neil Black, on Flickr

Thanks.

This post has been edited by Neil B: Sat, 5 Oct 2019 - 12:05


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Neil B
post Fri, 4 Oct 2019 - 10:54
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QUOTE (The Rookie @ Fri, 4 Oct 2019 - 11:10) *
I'd also be interested in how the council bod generated a 'reasonable suspicion' against her, as to my mind the modus operandi used here didn't crate a reasonable suspicion at all, more a 'guess', but I wouldn't use this now.

Presumably her name is recorded as hirer and/or traceable via the license and address.


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The Rookie
post Fri, 4 Oct 2019 - 11:03
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QUOTE (Neil B @ Fri, 4 Oct 2019 - 11:37) *
So is a query of the FPN alone safe enough for now?

I would say so.

As above, only say she didn't if she certainly didn't.

You could say (again as long as it is true again) that no-one can recall who did do it, that is a perfectly good legal position as the council have to prove beyond reasonable doubt who did, she doesn't have to prove she did not.

Psychologically it's better to give the council a valid reason to back down other than them having overstepped their level of competence.

QUOTE (Neil B @ Fri, 4 Oct 2019 - 11:54) *
QUOTE (The Rookie @ Fri, 4 Oct 2019 - 11:10) *
I'd also be interested in how the council bod generated a 'reasonable suspicion' against her, as to my mind the modus operandi used here didn't crate a reasonable suspicion at all, more a 'guess', but I wouldn't use this now.

Presumably her name is recorded as hirer and/or traceable via the license and address.

Indeed, I know where they got that from, but is it 'reasonable suspicion', or as I infer a 'guess' based on her being the hirer.


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southpaw82
post Fri, 4 Oct 2019 - 11:50
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The bar for suspicion is very low though. If I recall, Da Silva set it at something like “a possibility that was more than merely fanciful”.


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cp8759
post Fri, 4 Oct 2019 - 11:51
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QUOTE (Neil B @ Fri, 4 Oct 2019 - 11:02) *
IF a prosecution were to follow would she have to name the party responsible? (as is required for other offences in the act)

I think I've worked out that she wouldn't and why ---- but asking anyway.

The only exceptions to the right to remain silent are those related to identifying the driver of a vehicle, or some requirements under terrorism legislation, I'd venture to suggest neither apply here.

That being said in a criminal trial Mrs H is not required to prove a thing, nor does she need to give any evidence whatsoever. She is well within her rights to simply put the prosecution to proof and from what you've told us, she's actually innocent of the allegation, so by definition the prosecution cannot prove her guilt. This is my suggestions:

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Dear Rushi Ravindrakumar,

It is unclear that the council has any lawful authority to serve a fixed penalty notice, I draw your attention to the fact that section 314A of the Highways Act 1980 has not yet been brought into force. Please would you confirm which statutory power the council is relying on to serve a fixed penalty notice.

In any case a single photograph of a plank which could have been placed on the road by anyone does not prove the guilt of any particular individual, let alone does it prove guilty beyond reasonable doubt.

I suggest you pass the file to the council solicitor as soon as possible, however I remind the council that it should consider the CPS Code for Crown Prosecutors before commencing proceedings. In particular, before bringing a criminal prosecution, the council must be satisfied that it has sufficient evidence to prove guilty beyond reasonable doubt, i.e. there must be no plausible explanation of the evidence compatible with the defendant being innocent. The council's attention is drawn to the fact that while there is no statutory requirement to comply with the CPS Code for Crown Prosecutors, where the evidential and public interest tests of the Code are not met, current CPS policy is to exercise its power under section 6 of the Prosecution of Offenders Act 1985 to take over and discontinue proceedings. The CPS might be asked to intervene in this instance.

The council is further advised that should a prosecution be brought where the evidential and public interest tests are not met, the bringing of proceedings itself could amount to an improper act within the meaning of regulation 3 of The Costs in Criminal Cases (General) Regulations 1986 and in such circumstances the council could find itself liable for the full costs in the case.

I trust you will pass these observations to the council solicitor together with the rest of the file.


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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nigelbb
post Sat, 5 Oct 2019 - 05:15
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QUOTE (The Rookie @ Fri, 4 Oct 2019 - 11:10) *
(Isn't there another great comedy about a plank)

That would be 'The Plank' made by Eric Sykes with a whole host of 1960s British comedy stars e.g. Tommy Cooper, Jimmy Edwards etc https://en.wikipedia.org/wiki/The_Plank_(1967_film)


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British Parking Association Ltd Code of Practice(Appendix C contains Schedule 4 of POFA 2012 ) & can be found here http://www.britishparking.co.uk/Code-of-Pr...ance-monitoring
DfT Guidance on Section 56 and Schedule 4 of POFA 2012 https://www.gov.uk/government/uploads/syste...ing-charges.pdf
Damning OFT advice on levels of parking charges that was ignored by the BPA Ltd Reference Request Number: IAT/FOIA/135010 – 12 October 2012
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andy_foster
post Sat, 5 Oct 2019 - 07:49
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QUOTE (southpaw82 @ Wed, 2 Oct 2019 - 18:34) *
I don’t know where they’re getting the power to impose a fixed penalty from - though that may become irrelevant if they choose to prosecute.


You might not be surprised to hear that I would be of the opinion that *if* the FPN was issued without any lawful authority (as opposed to being defective due to some minor technicality) by the authority that stood to gain from it, then any prosecution threatened to back up such an unlawful demand for money would likely constitute an abuse of process. I do however not the use of the qualifier 'may' and accept that even if I am correct, it would not be a simple 'black and white' matter like a late NIP.

I am also somewhat wary of the statement, addressed to a person who must clearly be considered a suspect, that they should give their side of the story (aka voluntarily provide what could realistically be expected to constitute a confession).


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"Whatever the intention of Parliament was, or was not, the law is quite clear." - The Rookie
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Neil B
post Sat, 5 Oct 2019 - 13:26
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QUOTE (andy_foster @ Sat, 5 Oct 2019 - 08:49) *
I am also somewhat wary of the statement, addressed to a person who must clearly be considered a suspect, that they should give their side of the story (aka voluntarily provide what could realistically be expected to constitute a confession).

Thanks Andy.
So am I !
A couple who have now lately told me they are, in local parlance, going to 'appeal'.
That scary word that means nothing; I perceive indicating an ingrained trust and faith in the local authority despite
momentarily being furious at them.

I've told them we need to meet and talk first and just hope we get the chance.

I'm still not sure how to proceed but I've understood what she shouldn't do.


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QUOTE (DancingDad @ Fri, 11 May 2018 - 12:30) *
Neil is good at working backwards.

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Neil B
post Sat, 5 Oct 2019 - 14:54
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@cp
Your wealth of knowledge is amazing but I can't help wondering how it might pan out in practice. This being for
someone other than myself I can't help being cautious.

I know how annoying it is when we advise those seeking help what to do and they do something else entirely.
I'm not proposing that here but I'd just like to get a bit more comfortable with the best course.

This bit I have no particular qualms with >

QUOTE (cp8759 @ Fri, 4 Oct 2019 - 12:51) *
Dear Rushi Ravindrakumar,

It is unclear that the council has any lawful authority to serve a fixed penalty notice, I draw your attention to the fact that section 314A of the Highways Act 1980 has not yet been brought into force. Please would you confirm which statutory power the council is relying on to serve a fixed penalty notice.

Could I add Andy's point about any subsequent escalation to prosecution, on the back of an unlawful FPN, would be an abuse of process?
Or maybe not at at this stage?

Then >
QUOTE (cp8759 @ Fri, 4 Oct 2019 - 12:51) *
In any case a single photograph of a plank which could have been placed on the road by anyone does not prove the guilt of any particular individual, let alone does it prove guilty beyond reasonable doubt.

Agreed and >
QUOTE (southpaw82 @ Fri, 4 Oct 2019 - 11:26) *
She wants to think carefully before making any statement, including a denial. I’m not saying it’s the wrong thing to do but once colours are nailed to masts you’re stuck with it.

and
QUOTE (andy_foster @ Sat, 5 Oct 2019 - 08:49) *
I am also somewhat wary of the statement, addressed to a person who must clearly be considered a suspect, that they should give their side of the story (aka voluntarily provide what could realistically be expected to constitute a confession).

So how would this do? >
- That she has no involvement in anything being deposited on the highway that day and (as is likely -tbc) that she was not present at the time, being engaged in her regular employment.
?


On the final part.
I get where you are coming from; confronting the jumped up jobsworth head on. >
QUOTE (cp8759 @ Fri, 4 Oct 2019 - 12:51) *
I suggest you pass the file to the council solicitor as soon as possible, however I remind the council that it should consider the CPS Code for Crown Prosecutors before commencing proceedings. In particular, before bringing a criminal prosecution, the council must be satisfied that it has sufficient evidence to prove guilty beyond reasonable doubt, i.e. there must be no plausible explanation of the evidence compatible with the defendant being innocent. The council's attention is drawn to the fact that while there is no statutory requirement to comply with the CPS Code for Crown Prosecutors, where the evidential and public interest tests of the Code are not met, current CPS policy is to exercise its power under section 6 of the Prosecution of Offenders Act 1985 to take over and discontinue proceedings. The CPS might be asked to intervene in this instance.

The council is further advised that should a prosecution be brought where the evidential and public interest tests are not met, the bringing of proceedings itself could amount to an improper act within the meaning of regulation 3 of The Costs in Criminal Cases (General) Regulations 1986 and in such circumstances the council could find itself liable for the full costs in the case.

Reads to me as confrontational, challenging and, maybe, threatening.
I trust you on the content, unless someone contradicts it but I can't help, from decrim experience, of the standard intransigence
of council officers, who might just try to push this on through indignation.


QUOTE (cp8759 @ Fri, 4 Oct 2019 - 12:51) *
I trust you will pass these observations to the council solicitor together with the rest of the file.

Might be better earlier; 'observations' being, for me, the saving grace


Soz. I just want to be sure.



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QUOTE (DancingDad @ Fri, 11 May 2018 - 12:30) *
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southpaw82
post Sat, 5 Oct 2019 - 17:33
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I wouldn’t be mentioning the abuse of process angle at all.


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cp8759
post Sat, 5 Oct 2019 - 17:34
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Neil I can only tell you what I would do if I were placed in this position. That being said, I will try to address your queries in order.

A prosecution following an FPN that does not have statutory backing is not necessarily an abuse of process. The police offer speed awareness courses but you can't challenge a speeding prosecution on the basis that the police offered an out of court disposal that does not have statutory backing. If the FPN turns out to be unlawful (and we don't yet know this for sure), after the matter is resolved, either a complaint under the council's complaints process or a private prosecution are avenues that could be explored, but there's no point in bringing up anything further about this at this stage. Rather, the objective of raising the point is to let them think "Oh oh course we have a statutory power to issues this FPN... hold on a minute, no we don't!"

QUOTE (Neil B @ Sat, 5 Oct 2019 - 15:54) *
Reads to me as confrontational, challenging and, maybe, threatening.
I trust you on the content, unless someone contradicts it but I can't help, from decrim experience, of the standard intransigence
of council officers, who might just try to push this on through indignation.

This is not civil parking enforcement, it's a criminal matter. The target audience of the "confrontational" bit is not the council official, but rather the council solicitor. This is because the council solicitor is legally trained and, even if through gritted teeth, he'll have no choice but to confirm to the council officer that there is not enough evidence to bring a prosecution. It might sound confrontational, but it's also 100% correct.

Hence I'm not telling the council official to refer the case to the council solicitor because I want to intimidate him into backing down, I really want him to pass the file to the council solicitor because the sooner the does that, the sooner he'll be told that he doesn't have a case.

The result I expect is a very stern letter warning Mrs H not to do this again, but that on this occasion no further action will be taken as a "goodwill gesture".


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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Neil B
post Sat, 5 Oct 2019 - 19:19
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Thanks again both SP and cp.

I'll put this to them if I get the chance.


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QUOTE (DancingDad @ Fri, 11 May 2018 - 12:30) *
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Wretched Rectum
post Sun, 6 Oct 2019 - 09:34
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What a petty FPN.
QUOTE
© a person deposits any thing whatsoever on a highway to the interruption of any user of the highway,
was there really any interruption?

I'm impressed by all the advice given.
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Wretched Rectum
post Sat, 12 Oct 2019 - 18:09
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From reading another thread, it would appear that the authority to issue a FPN comes from this.

This is a useful document.

This info comes courtesy of a mad mick post.

This post has been edited by Wretched Rectum: Sat, 12 Oct 2019 - 18:14
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Mad Mick V
post Wed, 16 Oct 2019 - 07:08
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Section 314a is covered here:-

http://www.legislation.gov.uk/ukpga/2004/18/section/64

Mick
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Neil B
post Fri, 18 Oct 2019 - 23:27
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Yes I had noted Mick's revelation.

It should still leave the fact that they have no evidence.

It now seems the recipient of the FPN didn't really take that on board.
Despite Andy's valid warning about the invitation to write to the council they've felt obliged
to engage.
There's still, among many, an ingrained faith, belief and trust in local authorities.

I didn't mind them writing, along the lines of 'what has this got to do with me?' and 'Where's the evidence?'.
But no, they've concocted some completely unnecessary story.
I've not seen it but vaguely along the lines 'builder, blah blah, not a ramp but item about to be put in skip'.

Horse, water 'n all that. rolleyes.gif

This post has been edited by Neil B: Sat, 19 Oct 2019 - 08:50


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QUOTE (DancingDad @ Fri, 11 May 2018 - 12:30) *
Neil is good at working backwards.

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DancingDad
post Sat, 19 Oct 2019 - 00:11
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QUOTE (Neil B @ Sat, 19 Oct 2019 - 00:27) *
………..
Horse, water 'n all that. rolleyes.gif


You can but try but when reliant on others...…

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Neil B
post Sat, 19 Oct 2019 - 09:11
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All is not necessarily lost: The fact remains she's innocent.

But you could almost write the script of the next couple of events, right now.



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QUOTE (DancingDad @ Fri, 11 May 2018 - 12:30) *
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DancingDad
post Sat, 19 Oct 2019 - 09:17
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QUOTE (Neil B @ Sat, 19 Oct 2019 - 10:11) *
All is not necessarily lost: The fact remains she's innocent.

But you could almost write the script of the next couple of events, right now.


You mean the official looking letter that says that they've looked at everything but there is insufficient to cancel the FPN but out of the goodness of their hearts they will allow another 14 days to pay it etc.
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cp8759
post Sat, 19 Oct 2019 - 12:02
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QUOTE (Neil B @ Sat, 19 Oct 2019 - 10:11) *
All is not necessarily lost: The fact remains she's innocent.

Well quite, where someone is actually innocent it would be quite a tall order for a court to be convinced of her guilt beyond all reasonable doubt.

QUOTE (DancingDad @ Sat, 19 Oct 2019 - 10:17) *
QUOTE (Neil B @ Sat, 19 Oct 2019 - 10:11) *
All is not necessarily lost: The fact remains she's innocent.

But you could almost write the script of the next couple of events, right now.


You mean the official looking letter that says that they've looked at everything but there is insufficient to cancel the FPN but out of the goodness of their hearts they will allow another 14 days to pay it etc.

You cynic tongue.gif


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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The Rookie
post Sat, 19 Oct 2019 - 14:35
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QUOTE (cp8759 @ Sat, 19 Oct 2019 - 12:02) *
Well quite, where someone is actually innocent it would be quite a tall order for a court to be convinced of her guilt beyond all reasonable doubt.

I admire your confidence and pity your naivety.....
I’ll start the list with Stefan Kiszko


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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!

S172's
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Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
Rookies 10-0 PPC's
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