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Driving without due care and attention, Wrongly accused
john1253
post Sat, 5 Jan 2019 - 15:56
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I was driving along a straight dual carriageway at 6.04 in the morning, I moved into the outside lane to overtake the car in front of me when he decided to move into the outside lane forcing me to brake, when he moved back into the nearside lane I accelerated to pass him then moved back into the nearside lane because I was nearing my slip road exit, I indicated and braked to leave the dual carriageway but this other car stayed extremely close to me, I waved at him for driving so close, At 4.00pm the same afternoon a policeman came banging on my door to ask me was I the driver on the dual carriageway that morning, on saying I was he told me he was the driver of the other car off duty, he accused me of careless driving and issued me with a section 59 and told me I would be reported for driving without due care and attention, I couldn't believe what was happening and I feel he maybe got in before me in case I reported him for tailgating me, anyway I am in court on the 14/2/2019 on a charge of driving without due care and attention and the person accusing me is the who drove without due care and attention, life just isnt fair.

This post has been edited by john1253: Sat, 5 Jan 2019 - 17:14
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post Sat, 5 Jan 2019 - 15:56
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thisisntme
post Sat, 26 Jan 2019 - 20:22
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QUOTE (Kieran_e1 @ Sat, 26 Jan 2019 - 20:16) *
QUOTE (southpaw82 @ Sat, 26 Jan 2019 - 19:04) *
Is it the case in Scotland* that a single police officer couldn’t perform a check with his speedometer as there would be no corroboration?

* I don’t know the answer but I don’t want to be accused of playing with my food.

as far as every specialist lawyer I've ever talked to has said, no a cop in a car on his own cannot provide corroboration. So two cops and a speedo, or a cop with a video would do it ( which is why in scotland traffic cars can run single manned but with proper recording info with speed etc )

all the police scotland panda cars are without any video equipment.

I may know of someone who got off a phone offense on this basis biggrin.gif One cop, never made it past the fiscal office, case tossed, no corroboration

Corroboration in Scots law. ... A cornerstone of Scots law, the requirement for corroborating evidence means at least two different and independent sources of evidence are required in support of each crucial fact before a defendant can be convicted of a crime.


This isn't speeding though. Are you saying that 2 police officers would have to witness careless driving for it to succeed? DOesn't sound probable to me.


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Kieran_e1
post Sat, 26 Jan 2019 - 20:28
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QUOTE (thisisntme @ Sat, 26 Jan 2019 - 20:22) *
QUOTE (Kieran_e1 @ Sat, 26 Jan 2019 - 20:16) *
QUOTE (southpaw82 @ Sat, 26 Jan 2019 - 19:04) *
Is it the case in Scotland* that a single police officer couldn’t perform a check with his speedometer as there would be no corroboration?

* I don’t know the answer but I don’t want to be accused of playing with my food.

as far as every specialist lawyer I've ever talked to has said, no a cop in a car on his own cannot provide corroboration. So two cops and a speedo, or a cop with a video would do it ( which is why in scotland traffic cars can run single manned but with proper recording info with speed etc )

all the police scotland panda cars are without any video equipment.

I may know of someone who got off a phone offense on this basis biggrin.gif One cop, never made it past the fiscal office, case tossed, no corroboration

Corroboration in Scots law. ... A cornerstone of Scots law, the requirement for corroborating evidence means at least two different and independent sources of evidence are required in support of each crucial fact before a defendant can be convicted of a crime.


This isn't speeding though. Are you saying that 2 police officers would have to witness careless driving for it to succeed? DOesn't sound probable to me.


this is why i replied originally to the OP in case someone had a similar situation in Scotland. one officer cannot bring a charge on his own without some form of additional independent evidence as per the note above , 2 independent sources of evidence are required. so yes that is what I am saying.2 officers, or one officer and a video, or one officer and a third party witness.

this has been a hot topic in scotland recently as the scottish government has tried ( unsuccessfully) to remove this standard across the entire system under the guise of increasing rae and sexual assault cases which are generally a he said she said with no external evidence and hence harder to convict in scotland. But we digress

This post has been edited by Kieran_e1: Sat, 26 Jan 2019 - 20:32
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john1253
post Wed, 13 Feb 2019 - 13:26
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Some good news today, I have just returned from court where my case was dismissed by the magistrates, my problem now is how do I get rid of my section 59 order, surely if my case was dismissed then I was not driving without due care and attention, so I have been given a punishment for no reason at all.
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The Rookie
post Wed, 13 Feb 2019 - 13:32
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Unfortunately there is no such link.

I would suggest your best bet is a letter of complaint to the local chief Constable including the not guilty verdict.

Note that a not guilty verdict doesn’t mean you didn’t do it, just it wasn’t proven.


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cp8759
post Wed, 13 Feb 2019 - 15:38
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QUOTE (The Rookie @ Wed, 13 Feb 2019 - 13:32) *
Note that a not guilty verdict doesn’t mean you didn’t do it, just it wasn’t proven beyond reasonable doubt

FTFY. As the section 59 is civil and if disputed, would only need to be proven on the balance of probabilities, a civil court may well find the facts as alleged by the police to be proven.


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notmeatloaf
post Wed, 13 Feb 2019 - 18:09
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QUOTE (cp8759 @ Wed, 13 Feb 2019 - 15:38) *
QUOTE (The Rookie @ Wed, 13 Feb 2019 - 13:32) *
Note that a not guilty verdict doesn’t mean you didn’t do it, just it wasn’t proven beyond reasonable doubt

FTFY. As the section 59 is civil and if disputed, would only need to be proven on the balance of probabilities, a civil court may well find the facts as alleged by the police to be proven.

S59 isn't civil. It just requires a constable to have reasonable grounds to suspect S3 or S34 RTA is breached and that it is cheesing off members of the public.

To "prove" it you would have to prove the constable was subjectively unreasonable, not that they were incorrect had they known all the facts objectively.

Seeing as proving someone's subjective interpretation is unreasonable is very, very difficult then a complaint gives someone the only near-level playing field method of redress.


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southpaw82
post Wed, 13 Feb 2019 - 18:41
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QUOTE (notmeatloaf @ Wed, 13 Feb 2019 - 18:09) *
S59 isn't civil.


Do you have any authority for that assertion?

QUOTE
It just requires a constable to have reasonable grounds to suspect S3 or S34 RTA is breached and that it is cheesing off members of the public.

To "prove" it you would have to prove the constable was subjectively unreasonable, not that they were incorrect had they known all the facts objectively.

Doesn’t “reasonable grounds” imply an objective test?


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notmeatloaf
post Wed, 13 Feb 2019 - 20:45
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"has reasonable grounds" surely means using their judgement at that moment in time. As such it has to be a subjective judgement, unless you can prove objectively that no reasonable police officer would have made that judgement.

To me that is subjective, but I'm happy to be proved wrong.

As for civil, I meant that the offence is a criminal one under 2002 PRA. You could if course take civil action to recover any losses from the police, but you can do that for any action the police take. I don't know how you would recover losses if the police were lawfully using their powers.


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southpaw82
post Wed, 13 Feb 2019 - 21:39
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QUOTE (notmeatloaf @ Wed, 13 Feb 2019 - 20:45) *
"has reasonable grounds" surely means using their judgement at that moment in time. As such it has to be a subjective judgement, unless you can prove objectively that no reasonable police officer would have made that judgement.

To me that is subjective, but I'm happy to be proved wrong.


Reasonable grounds means objectively reasonable.

QUOTE
As for civil, I meant that the offence is a criminal one under 2002 PRA.

What offence?


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cp8759
post Wed, 13 Feb 2019 - 22:56
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QUOTE (notmeatloaf @ Wed, 13 Feb 2019 - 18:09) *
S59 isn't civil.

That's news to me. Which court would deal with it then?

QUOTE (notmeatloaf @ Wed, 13 Feb 2019 - 20:45) *
You could if course take civil action to recover any losses from the police, but you can do that for any action the police take. I don't know how you would recover losses if the police were lawfully using their powers.

Whether the police had lawfully used their powers would be decided by a civil court, on the balance of probabilities. Hence the civil burden of evidence is the relevant one.


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No, I am not a lawyer.
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The Rookie
post Thu, 14 Feb 2019 - 06:47
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QUOTE (cp8759 @ Wed, 13 Feb 2019 - 22:56) *
QUOTE (notmeatloaf @ Wed, 13 Feb 2019 - 18:09) *
S59 isn't civil.

That's news to me. Which court would deal with it then?


No court deals with an S59 (one of the big issues with it, it’s a punishment with no recourse to a court of law prior to the punishment), the only claim back for damages is civil and that’s what I think SP is alluding to.


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Darkatmosphere
post Thu, 14 Feb 2019 - 08:52
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I would respectfully disagree in part with Rookie, There is one option of taking the officers decision to judicial review at the high court so to imply there is no "official rout" so to speak In my opinion and view would be erroneous, there is "a" rout to overturn the decision, that lies with the high court.

Saying this, I think this option should be the last resort after all other "free" avenues have been extinguished, such as chief constable, commissioner, although I believe a nicely worded letter and a copy of the courts decision enclosed highlighting to that chief, I feel, should see the S59 being waived before having to apply to the high court for a JR.

This post has been edited by Darkatmosphere: Thu, 14 Feb 2019 - 13:13


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cp8759
post Thu, 14 Feb 2019 - 12:43
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QUOTE (The Rookie @ Thu, 14 Feb 2019 - 06:47) *
QUOTE (cp8759 @ Wed, 13 Feb 2019 - 22:56) *
QUOTE (notmeatloaf @ Wed, 13 Feb 2019 - 18:09) *
S59 isn't civil.

That's news to me. Which court would deal with it then?


No court deals with an S59 (one of the big issues with it, it’s a punishment with no recourse to a court of law prior to the punishment), the only claim back for damages is civil and that’s what I think SP is alluding to.

If that were true then S59 would be a cleat-cut breach of Artice ECHR and thus unlawful. Of course a s59 could be challenged, we've had this debate before.


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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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Mayhem007
post Sat, 16 Feb 2019 - 10:03
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QUOTE (Darkatmosphere @ Thu, 14 Feb 2019 - 08:52) *
I would respectfully disagree in part with Rookie, There is one option of taking the officers decision to judicial review at the high court so to imply there is no "official rout" so to speak In my opinion and view would be erroneous, there is "a" rout to overturn the decision, that lies with the high court.

Saying this, I think this option should be the last resort after all other "free" avenues have been extinguished, such as chief constable, commissioner, although I believe a nicely worded letter and a copy of the courts decision enclosed highlighting to that chief, I feel, should see the S59 being waived before having to apply to the high court for a JR.

Totally on par with regards to the judicial review.
All possibilities must be explored before going through the process of JR to ensure the matter can be resolved without the burden of a judicial review.
Also, the first step in a JR is that the papers or JR application will be reviewed by a single judge in his office. Which he has the power to over turn the S59. If he disagrees with the application then the OP has his chance to have his 15 minutes of fame in front of the justices, possibly in the Administrative court or the divisional court. However, I find it highly unlikely that it would get that far.


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cp8759
post Sat, 16 Feb 2019 - 13:31
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QUOTE (Mayhem007 @ Sat, 16 Feb 2019 - 10:03) *
Also, the first step in a JR is that the papers or JR application will be reviewed by a single judge in his office. Which he has the power to over turn the S59. If he disagrees with the application then the OP has his chance to have his 15 minutes of fame in front of the justices, possibly in the Administrative court or the divisional court. However, I find it highly unlikely that it would get that far.

I would advise against using terms such as the "the Administrative court or the divisional court" if you don't know what they mean. Your understanding of the JR process is deeply flawed, don't see this as a gratuitous criticism but rather as an invitation to research the matter, the Administrative Court Judicial Review Guide 2018 at https://www.gov.uk/government/publications/...al-review-guide is a good start.


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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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andy_foster
post Sat, 16 Feb 2019 - 21:50
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Whilst Mayhem007's use of the relevant terms is slightly unusual, I happen to know that he has addressed both.


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cp8759
post Sun, 17 Feb 2019 - 01:11
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QUOTE (andy_foster @ Sat, 16 Feb 2019 - 21:50) *
Whilst Mayhem007's use of the relevant terms is slightly unusual, I happen to know that he has addressed both.

I was referring more to the suggestion that the judge looking at the papers at the permission stage could make a quashing order, my comments on terminology were incidental.


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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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Mayhem007
post Sun, 17 Feb 2019 - 08:23
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QUOTE (cp8759 @ Sun, 17 Feb 2019 - 01:11) *
QUOTE (andy_foster @ Sat, 16 Feb 2019 - 21:50) *
Whilst Mayhem007's use of the relevant terms is slightly unusual, I happen to know that he has addressed both.

I was referring more to the suggestion that the judge looking at the papers at the permission stage could make a quashing order, my comments on terminology were incidental.

Thanks Andy nice bike.
And thanks CP I stand corrected, however, the single judge does have the power to reject the application.
Judicial review
Irrationality.
The court can reverse a decision if it is so unreasonable as to be “perverse” or“irrational”.Arguing that a decision is irrational is extremely difficult and such claims are usually linked to challenges based on illegalityand/or unfairness, if this is possible.
Unfairness.
This deals with the process for reaching a decision and includes the right to a fair hearing(which includes the rule against bias). Also the courts have recently extended the idea of fairness to prevent abuses of power where public bodies have sought to go back, without sufficientjustification, on promises made (called'legitimate expectations').

This post has been edited by Mayhem007: Sun, 17 Feb 2019 - 08:38


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