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Fife Constabulary - Again, Pre trial court attendance next week, no video
Prof
post Mon, 27 Mar 2006 - 18:17
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1. Fife Constabulary
2. Date of Offence - 20/11/05 12:14
3. NIP dated 22/11/05
4. Received - 24/11/05
5. A92 Lochgelly to Kirkcaldy West
6. Addressed to me
7. Sent First Class Post
8. I am RK
9. 0 points currently

Alleged 89mph in a 70mph dual carriageway. Wrote to scamera unit to request photos/training manuals/certificate of conformance/ pocket book notes etc.

Reply back on the 8/12 with a little back and white photo (sun glaring off car), no distance or speed stamp on databar. Confirmed device is a LTI 20/20 dodgyscope. usual waffle about take it now or face higher penalities later. My FOI requests passed to the FOI officer. Would only get the info I am looking for (training manuals/certificate of conformance/ pocket book notes etc.) once I signed the nip and sent it back too them. Invitation to come and look at the video at the scamera unit.

My reply on the 12/12 stated that I felt intimated and that I would not be viewing the video at their location but would be requesting a copy. Explained that if I was too sign the nip that I would be incrimating myself and giving up my human rights to silence under section 6 blah blah. I explained that the vehicle in the photo provided was not speeding (no distance speed markings on the data bar) and as such no case to answer.

Reply from Scammera Unit on the 14/12 from Karen MacKenzie, Programme Manager of the Fife Safety Camera Unit stating that the photo is to assist in driver indentification purposes only. They are under no obligation to provide the photos I am asking for. Mssr MacKenzie states regarding the signing of the nip:

"THE IDENTIFICATION OF THE DRIVER ON THE NOTICE IS NOT AN ADMISSION OF GUILT"

YOU READ IT HERE FIRST GUYS!

Followed by more gentle advisement of sign it or we will do you for S172. Another free invite to attend the scamera unit to watch the video - declined....

19/12/05 Completed NIP, signed under section 6 of the convention of human rights and asterixed to the comments made by K Mackenzie about it being not an admission of guilt.

21/12/05 Conditional Offer sent (very efficent, Happy Bloody Christmas)

Reply from Scammera Unit on the 23/12 with copies of a training certificate (name cut out). Number of device, certificate of conformity etc. NO TRAINING MANUAL, NO POCKET BOOK NOTES, NO VIDEO.

Various correspondence, back and forth re the missing requests (another invite this time from the Chief to attend the unit to watch the video, no thanks!! Training materials being refused under commerical interests section of the FOISA and start of video (includes pre checks) withheld under data protection act.

29/12/05 - Request under the FOISA 2002 and the Criminal Procedure (Scotland) Act 1995 to release statements, videos, training materials etc.

11/01/06 - Happy New Year, Letter from Chief Inspector

"I note that you are fully aquainted with the relevant legislation"...... YES!!!!! (Thanks Pepipoo)

Blah about not getting the relevant stuff until the Procurator Fiscal decides to take it to court, then they will be more than happy to assist.

More blah about dodgyscope training manuals not being alllowed to be copied (copyright). I explained that since Civilian Operators are not employees of teletraffic it means that Fife Constabulary must allow non teletraffic employees to read them. Therefore whats their problem????

Admittance that there is currently NO witness statement (This would only come about if I went to court). Invitation to see the pre check video by Appointment (dont think so buddy, I want the tape to get it analysed). First time this statement is used by the Chief.

"SHOULD YOUR CASE GO TO COURT!"

(Used again in second reply)

I then replied asking if the camera operator was a policeman. Reply from Chief was No, the camera operator is civilian, and is allowed to give primary evidence as he is working for the chief constable. No policeman viewed the video, there are no photographs available of the camera itself or the alleged incident with distance/speed markers on it.

Yet another refusal to see the training manuals (How can one prove that the device is being operated correctly if there is no baseline information???).

Anyway count so far:

Scamera Unit Manager - 3 * 2 page replies
Chief Inspector - 2 * 2 page replies
FOI Officer - 2 * 2 page replies

For every this else theres mastercard, Priceless!

No costs in scotland and I am going to request Mr Garrets attendance (Me being a old radio/cellular engineer in a past life).

So the question I want to ask is there anything else I should be doing, or should have done differently??

BR Professor
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post Mon, 27 Mar 2006 - 18:17
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Prof
post Thu, 2 Nov 2006 - 13:18
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"Criminal Procedure (Scotland) Act 1995 (c. 46), section 279A(3), as amended by section 28(2) of the Crime and Punishment (Scotland) Act 1997.
(3) Any order by any of the departments of state or government or any local authority or public body made under powers conferred by any statute or a print or a copy of such an order, shall when produced in a prosecution be received as evidence of the due making, confirmation, and existence of the order without being sworn to by any witness and without any further or other proof."

Thanks JA , I will staple this to the ever so efficient reply I got from Tony Williams, the House of Commons Information Office, who has just sent me a copy of hansards from the 25/04/06- amess/blears/speed cameras with a covering letter.

Surely the day of the trial I can call foul as I have not seen the video evidence? (In any shape or form)

BR Prof

Me thinks its time to speak to my solicitor
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Prof
post Thu, 2 Nov 2006 - 18:20
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Response back fro Fife constabulary re my video (and is it still intact?)

I can confirm that the video recording you refer to is intact and in the possession of Fife Constabulary. However, as stated in out previous response, you must make a request for access to this tape via the PF.

In respect of the LTI Training /Operator Manuals I must refuse your request for access (I asked under the copyright law, section 45) . I do so on the grounds that law enforcement activity and health and safety of the public and the operators may be comprised.

------------

What you mean that defendents may have proper reasons to complain about the operators not forming prior opionon or handling the gun properly.

Do you ever get the feeling that they (Police and the CPS) know this is a big pile of fudge but are too frightened that it will come out into the public.

BR Prof
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Prof
post Thu, 2 Nov 2006 - 18:20
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Response back fro Fife constabulary re my video (and is it still intact?)

I can confirm that the video recording you refer to is intact and in the possession of Fife Constabulary. However, as stated in out previous response, you must make a request for access to this tape via the PF.

In respect of the LTI Training /Operator Manuals I must refuse your request for access (I asked under the copyright law, section 45) . I do so on the grounds that law enforcement activity and health and safety of the public and the operators may be comprised.

------------

What you mean that defendents may have proper reasons to complain about the operators not forming prior opionon or handling the gun properly.

Do you ever get the feeling that they (Police and the CPS) know this is a big pile of fudge but are too frightened that it will come out into the public.

BR Prof
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jeffreyarcher
post Thu, 2 Nov 2006 - 20:16
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QUOTE (Prof @ Thu, 2 Nov 2006 - 13:18) *
I will staple this to the ever so efficient reply I got from Tony Williams, the House of Commons Information Office, who has just sent me a copy of hansards from the 25/04/06- amess/blears/speed cameras with a covering letter.

I doubt that S279A would apply to Hansard.
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Prof
post Thu, 2 Nov 2006 - 21:17
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So I would have to call Hazel Blears MP as a witness to speak to her written answers?

mmmm

I take it that I would then also need to call someone from ACPO to speak to the Code of Practice Manual then??

confused, Prof
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jeffreyarcher
post Thu, 2 Nov 2006 - 21:50
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QUOTE (Prof @ Thu, 2 Nov 2006 - 21:17) *
So I would have to call Hazel Blears MP as a witness to speak to her written answers?

That's obviously preposterous; they're taking the piss. The problem is that they know that you probably don't know the answer. I think that the answer's probably in ss(1) and ss(2).
ss(1) says that an original would stand on its own.
Yours won't be an original, so I think that ss (2) is the answer, so it would have to be a certified copy, which I presume that yours isn't.

QUOTE (Prof @ Thu, 2 Nov 2006 - 21:17) *
I take it that I would then also need to call someone from ACPO to speak to the Code of Practice Manual then??

Unless we know the way round it, probably. I'm sure there is a procedural way round it, it's just that we don't know what it is.
The problem is that you're up against it time wise now. Had it not been for that, I think that you could have written to the PF and asked him to agree it, and if he wouldn't, what he disagreed with about it.
The other problem is, merely because you authenticate the ACPO gudelines, it proves nothing about their use in Scotland. You would also have to get something from the local constabulary to confirm that they used them.

Also, remember, AFAIK, if you get a witness, you are liable for their expenses.

This post has been edited by jeffreyarcher: Thu, 2 Nov 2006 - 22:29
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Prof
post Thu, 2 Nov 2006 - 23:07
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JA

My precognition interview with the operator confirms he recognises the acpo cop as a document they use. I intend to use the crown witness plus my own (the unit manager) to confirm this.

Surely the certied copy of hansard (on house of commons headed paper) would be sufficent for the blears questions/answers.

I could also ask my MP to confirm it as well (good old gordon!)

BR Prod
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Prof
post Thu, 2 Nov 2006 - 23:34
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Ive faxed the PF earlier today requesting a meeting early next week to discuss.

Prof
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jeffreyarcher
post Fri, 3 Nov 2006 - 11:14
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QUOTE (Prof @ Thu, 2 Nov 2006 - 23:07) *
Surely the certied copy of hansard (on house of commons headed paper) would be sufficent for the blears questions/answers.

IMO, yes; sorry, I didn't realise that you had a certified copy.

QUOTE (jeffreyarcher @ Thu, 2 Nov 2006 - 21:50) *
Yours won't be an original, so I think that ss (2) is the answer, so it would have to be a certified copy, which I presume that yours isn't.


This post has been edited by jeffreyarcher: Fri, 3 Nov 2006 - 11:16
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Prof
post Fri, 3 Nov 2006 - 11:21
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Sheriff Officers tell me that I can cite the camera manager (the one that told me filling in the nip is not an admission of guilt and who I will ened to speak to the calibration and acpo docs) will cost me £50 plus whatever cost expenses she has.

If we are not ready for the 15th for whatever reason, can I instruct her not to attend (after consultation with the clerk of the court of course)

BR Prof.
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jeffreyarcher
post Fri, 3 Nov 2006 - 11:56
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QUOTE (Prof @ Fri, 3 Nov 2006 - 11:21) *
If we are not ready for the 15th for whatever reason, can I instruct her not to attend (after consultation with the clerk of the court of course)

Sorry, I don't know anything about citing witnesses. Presumably you can, but what expenses they could still claim, I've no idea.
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Prof
post Fri, 3 Nov 2006 - 12:20
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Ive just asked ACPO if they can confirm if the ACPO code of practice (long filename.pdf) is the correct version.

Lets see what happens now.

BR Pau
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jeffreyarcher
post Sun, 5 Nov 2006 - 01:53
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QUOTE (Prof @ Fri, 3 Nov 2006 - 12:20) *
Ive just asked ACPO if they can confirm if the ACPO code of practice (long filename.pdf) is the correct version.

I thin you miss my point. The 'ACPO Guidelines' are a publication of ACPO (England, Wales & NI), not of ACPOS.
I think that all Scottish forces follow the current English ones, but a few years back, during the General's case, some Scottish forces were still using a previous version of the ACPO (E, W & NI) Guidelines.

This post has been edited by jeffreyarcher: Sun, 5 Nov 2006 - 01:54
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Prof
post Sun, 5 Nov 2006 - 04:22
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So we need to find out what version Fife is using.

BR Prof
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Prof
post Fri, 10 Nov 2006 - 00:49
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Quick update

A reply from the area PF today that he isnt allowing a sit down with his office to discuss what productions are being submitted (from both parties) as I am unrepresented and this "makes things difficult"

WTF does that mean??

Ill phone the clerk tomorrow (as I still dont have a prosecution production list) 5 days before trial.

As I am now paying for my witnesses to attend is it worthwhile asking the judge for an immediate adjournment until the productions are sorted out?

BR Prof
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jeffreyarcher
post Fri, 10 Nov 2006 - 01:27
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QUOTE (Prof @ Fri, 10 Nov 2006 - 00:49) *
A reply from the area PF today that he isnt allowing a sit down with his office to discuss what productions are being submitted (from both parties) as I am unrepresented and this "makes things difficult"
WTF does that mean??

I think that this refers to the Crown Office / Proc Fiscal Service's position that they seek not to disclose evidence to accuseds. They will disclose it to the accused's lawyer, though. Although, they will probably deny it, or be evasive as to why (as apparently in your case).
This, of course, is yet another breach of ECHR Art 6 and the right to represent oneself (which presumably is why they're evasive).
There's a couple of ECtHR cases on the subject, to the effect that witholding such evidence, but giving it to his lawyer is O.K. However, when the accused is unrepresented, by not giving it to him, his case is clearly at a disadvantage compared with a represented person, and hence his right to defend himself is prejudiced.
Unfortunately, I've lost the cases due to a hard disk failure.
ISTR that one is french and one is East European.
I might have them at work; I'll check on Sunday.

QUOTE (Prof @ Fri, 10 Nov 2006 - 00:49) *
Ill phone the clerk tomorrow (as I still dont have a prosecution production list) 5 days before trial.

As I am now paying for my witnesses to attend is it worthwhile asking the judge for an immediate adjournment until the productions are sorted out?

Unfortuantely, I'm out of my depth here. How would you get a hearing before a judge at such short notice?
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jeffreyarcher
post Fri, 10 Nov 2006 - 01:58
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QUOTE (jeffreyarcher @ Fri, 10 Nov 2006 - 01:27) *
There's a couple of ECtHR cases on the subject, to the effect that witholding such evidence, but giving it to his lawyer is O.K. However, when the accused is unrepresented, by not giving it to him, his case is clearly at a disadvantage compared with a represented person, and hence his right to defend himself is prejudiced.
Unfortunately, I've lost the cases due to a hard disk failure.
ISTR that one is french and one is East European.
I might have them at work; I'll check on Sunday.

I've found them. Unfortunately, they don't say that at all, sorry for the duff steer.
My recollection was of what I had been told they said, not of what they actually said. icon_redface.gif
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Attached File  CASE_OF_CONSTANTINESCU_v_ROMANIA.doc ( 128.5K ) Number of downloads: 13
 
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Prof
post Fri, 10 Nov 2006 - 08:57
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Mmmmmm More smoke and mirrors from the scottish legal system

http://www.lawscot.org.uk/Members_Informat...rimConduct.aspx

Article 11—Documents and Materials

(11.1) A solicitor will receive in the course of defence work the documents, materials or recordings related to the cases in which he is instructed. These documents, materials and recordings will include those disclosed to the solicitor by the Crown Office and Procurator Fiscal Service (“COPFS”). A solicitor should not give a client, or any other third party, even on a temporary basis, copies of any documents, materials or recordings. There may be exceptional circumstances justifying a departure from this rule in a particular case and if the solicitor believes that such exceptional circumstances exist, he must refer the matter to the Professional Practice Department of the Law Society of Scotland for guidance. If items are to be given to the client or third party, the solicitor must explain that the items must retained securely by them; must be kept confidential; must not be revealed to others, let alone released to others; must not be copied and must be returned to the solicitor by a fixed date which must be as soon as possible having regard to the circumstances justifying giving the items to the client in the first place.

(11.2) Some documents, materials or recordings may be of a sensitive nature and should never be given to the client. These documents should only be shown to the client in circumstances where the solicitor is present and it is possible to exercise adequate supervision to prevent the client retaining possession of the material or making a copy of it. Before showing the client the material, the solicitor should ensure that he has redacted the material to obscure any information tending to identify the home address or contact details of a witness. Some examples of sensitive material or documents are listed below:-

(a) A precognition or statement of a victim of a sexual offence;
(b) A photograph or pseudo photograph of any such victim or a deceased victim;
© A medical or other report or statement relating to the physical or mental condition of any such victim or a deceased victim;
(d) Any document, other than a document served on the client by the Crown or by a co-accused, containing the addresses or telephone numbers of witnesses or their relatives/friends or information from which there addresses and telephone numbers can be deduced;
(e) Any video or audio recording of a statement made by a vulnerable witness; and
(f) Any record in relation to previous convictions or outstanding charges of complainers or witnesses.

(11.3) In the event of a solicitor ceasing to act on behalf of a client, that client being unrepresented, any documents, materials or recordings which had been disclosed should be returned to the COPFS. If there is a transfer of agency, the documents, materials or recordings should be transferred on receipt of a mandate to the new solicitor. When a case has been concluded, a solicitor holding material disclosed by the COPFS should arrange for the material to be stored securely or to be disposed of as confidential waste.

Guidance Note
From time to time the Society has been asked to give its views of the practice of giving to accused persons, or other third parties, copies of the precognitions or statements of witnesses and of other documents associated with the accused’s case. This is particularly relevant in view of the solicitors obligations in relation to the material received from the COPFS under disclosure arrangements which have been put in place following the judgements of the Judicial Committee of the Privy Council in the cases of Holland –v- HMA 2005 SLT 563 and Sinclair –v- HMA 2005 SLT 513.

In the vast majority of criminal cases, the accused is in receipt of legal aid and it has been judicially declared that the accused has no proprietorial claim on the case papers. These belong to the solicitor.

The view of the Society is that solicitors should not give copies of precognitions, statements, documents or recordings to the accused or third parties unless there are exceptional circumstances justifying a departure from this general practice. Exceptional circumstances might include a case of particular complexity, necessitating giving the accused copies of documents to allow proper preparation. A fraud case, for instance, where documents were originally in the possession of the accused, might be such an exception. Another example would be a request from an appropriate investigative or statutory body, such as the Law Society of Scotland, the Scottish Criminal Cases Review Commission or the Scottish Legal Aid Board. Where a solicitor believes that there are exceptional circumstances, he must refer the matter to the Society’s Professional Practice Department for guidance. If the solicitor does give access to copies of documents, materials or recordings, he must ensure that a written record is kept of the reason for the documents, materials or recordings being given to the client or third party and of the fact that the recipient has been advised of the terms of the Code and the conditions of possession.

Information contained in the documents, materials or recordings which is sensitive, should only ever be used or disclosed to others for the limited purpose of the preparation and conduct of the proceedings. This is designed to ensure that a solicitor can disclose sufficient information to enable proper preparation to take place, for example, by disclosing to an expert witness but to reinforce the clear rule that such material should not be made available to persons unconnected with the case.

The Code makes it clear that sensitive material should never be disclosed. There are unfortunate worrying examples of problems which can arise if the guidelines are not observed, for example, copies of witness statements could be circulated in the public domain leading to witnesses being intimidated. Statements of victims of sexual crimes could be used as a form of pornography within prison. An extract from a firearms register, complete with addresses and type of weapons, has already been circulated in a prison.

Any sensitive material held by the solicitor should be retained securely and, if it has been given to the solicitor on condition that it is returned, the solicitor should return it to the issuing authority in accordance with that undertaking, as soon as it is no longer required by the solicitor.

Where a solicitor ceases to act and another solicitor takes over acting, the solicitor should ensure security and confidentiality of the material concerned and either return the documents and materials to the COPFS or transfer them to the incoming solicitor.

Solicitors are reminded that in receiving documentation, material or recordings from the COPFS, or other third parties, that they are accepting an implied undertaking to comply with the terms of this Article.
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Prof
post Fri, 10 Nov 2006 - 14:54
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Just phoned the clerk of the court.

There are no productions lodged by the Crown?????

She suggested calling the PF?

I think I should wait until the trial and call an objection based on non disclosure of any productions?

Answers on a post card? comments/suggestions?

BR Prof
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jeffreyarcher
post Sat, 11 Nov 2006 - 20:09
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QUOTE (Prof @ Fri, 10 Nov 2006 - 14:54) *
There are no productions lodged by the Crown?????

She suggested calling the PF?

I think I should wait until the trial and call an objection based on non disclosure of any productions?

I don't think that they have to lodge anything with the court.
Any disclosure (if required) is to the defence.
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