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jeffreyarcher
Posted on: Wed, 28 Apr 2010 - 23:16


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QUOTE (dom @ Wed, 28 Apr 2010 - 22:41) *
So let me get this right - there is no requirement for them to meet the 14 day limit providing they exhibit reasonable dilligence trying to?

Correct.

QUOTE (dom @ Wed, 28 Apr 2010 - 22:41) *
Does the 6 month time limit still apply to lay papers?

Correct.
  Forum: The Flame Pit · Post Preview: #464757 · Replies: 5 · Views: 1,976

jeffreyarcher
Posted on: Tue, 27 Apr 2010 - 23:36


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QUOTE (Dibby @ Tue, 27 Apr 2010 - 16:32) *
Are you saying they won't pull the video evidence out on the day in court or can't pull the evidence out? There's a big difference.

It doesn't matter, even if they do.

QUOTE (Dibby @ Tue, 27 Apr 2010 - 16:32) *
It's simply down to my word against theirs.

It's not your word against theirs. It's your word that it wasn't received against the presumption that it was delivered, because it was posted in time.
They have no idea whether it was actually received or not.
  Forum: Speeding and other Criminal Offences · Post Preview: #464412 · Replies: 43 · Views: 9,216

jeffreyarcher
Posted on: Tue, 27 Apr 2010 - 23:21


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No preparation time for a litigant in person.
  Forum: Speeding and other Criminal Offences · Post Preview: #464410 · Replies: 55 · Views: 14,032

jeffreyarcher
Posted on: Tue, 27 Apr 2010 - 22:50


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QUOTE (ssfoe @ Tue, 27 Apr 2010 - 22:19) *
because they are asking my Mum to supply dates of births etc.

They are fishing for information that they can use, either to set up bogus accounts in your mum's name, or to get access to her existing accounts (they may already have some information).
People are surprsingly naive about what they give out.
In this case, it's worse, because your mother is elderly.
Basically, it's a variation of a Nigerian 419 scam.
It ihas now become so prevalent, that many forces are now taking an interest in it.
  Forum: The Flame Pit · Post Preview: #464394 · Replies: 28 · Views: 6,072

jeffreyarcher
Posted on: Tue, 27 Apr 2010 - 22:39


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QUOTE (jobo @ Tue, 27 Apr 2010 - 20:02) *
but there is a complication of the 14 day rule not applying if it wasnt practical for the police to ascertain the id of the driver within the time limit

Driver or the RK.

QUOTE (jobo @ Tue, 27 Apr 2010 - 20:02) *
but the requirement to seve a writen nip still remains wonder if they served 6 on him ?

Not once they have failed to meet the 14 day deadline and exhibited reasonable diligence in trying to; i.e. there is no ongoing requirement to serve a NIP after the 14 days is up.
  Forum: The Flame Pit · Post Preview: #464384 · Replies: 5 · Views: 1,976

jeffreyarcher
Posted on: Tue, 27 Apr 2010 - 01:52


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QUOTE (7159keith @ Mon, 26 Apr 2010 - 09:01) *
2. To the best of her knowledge her car was in a car park at the time of the alleged offence.

Now we're getting somewhere.

QUOTE (7159keith @ Mon, 26 Apr 2010 - 09:01) *
and what could be more simple than using the statutory defence available to her.

What could be more simple is following the decades old authorities on the matter, Neal v Fior and Jacob v Garland, which, as I've said, puts the burden of proof on the prosecution, not on the defence.
  Forum: The Flame Pit · Post Preview: #464038 · Replies: 25 · Views: 5,162

jeffreyarcher
Posted on: Tue, 27 Apr 2010 - 01:42


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QUOTE (henrik777 @ Mon, 26 Apr 2010 - 09:20) *
and the TTRO has no start time (only a date) then it should start during the hours of darkness (midnight). In my view the requisite signs were not in place before the instrument came into place thus it is wholly invalid.

Sorry, I missed the point that you were making. Butler is, of course, no authority on that matter.
I see the point that you are making, but I doubt that any superior court would agree that line.

QUOTE (henrik777 @ Mon, 26 Apr 2010 - 09:20) *
However, i would expect a counter argument that the requisite signs were in place during the day as no illumination is required during the day.

The point about invalidating the whole order was not a point at issue in the case, however, it has been held in England that the lack of lighting on terminal signs does not provide a defence when the lights were not required to be on. I can't remember the case at the moment.
  Forum: Speeding and other Criminal Offences · Post Preview: #464036 · Replies: 9 · Views: 3,459

jeffreyarcher
Posted on: Tue, 27 Apr 2010 - 00:49


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QUOTE (Rico 6.9 @ Tue, 27 Apr 2010 - 01:12) *
QUOTE (jeffreyarcher @ Tue, 27 Apr 2010 - 00:27) *

there is a statutory procedure. The council complied with it, the OP did not.


The Council could only issue the NTO by breaking the law. I couldn't get this point across to all the sheriff's involved so far. I tried hard.

Well, perhaps if you couldn't get it across to several sheriffs, your understanding is incorrect.
Which piece of law did you cite to back up your assertion that the council had broken that law?
The council may well have, in your view, refused to accept the informal representations wholly unreasonably. But since informal representations aren't part of the statutory procedure anyway, doing so unreasonably, doesn't make following the statutory procedure unlawful.

QUOTE (Rico 6.9 @ Tue, 27 Apr 2010 - 01:12) *
I am still unclear as to why the OP was purportedly unable to make formal representations, in accordnace with procedure. E.g. was the NtO incorrectly worded, or not served. or was the CC issued early?

I'm not sure I did receive an NTO, the copy I have today came from the Council once the matter got to court.

In Scotland, even if you didn't get the NtO, you can't challenge the CC in court, you have to pay up and then sort it. That is a particular injustice in Scotland, and may well have been good grounds for a JR against the Scottish Ministers, but you don't even seem to know whether you got it or not. Even in England & Wales, you would have to know that you didn't.

QUOTE (Rico 6.9 @ Tue, 27 Apr 2010 - 01:12) *
The NTO seems to be a form with a choice of 6 boxes to tick stating that the council:
"isn't required to consider any other circumstances" This statement also seems unlawful. The NTO didn't cover my circumstances that the Council had already rejected illegally.

I suggest that you read the regulations.

QUOTE (Rico 6.9 @ Tue, 27 Apr 2010 - 01:12) *
I had assumed, because the council had broken the law before issuing the NTO, that they would be powerless to do anything. That the law would protect me. A bad assumption.

The basic problem with that premise is that you haven't shown anyone here why they have broken the law beforehand.

QUOTE (Rico 6.9 @ Tue, 27 Apr 2010 - 01:12) *
A huge shock when they arrested money against my will and without my knowledge, with no consideration as to the affordability of such an action to it's victim. When I was finally asked to attend court, the sheriff was obliged to hand the council my money! No possible defence! Crikey!

The law's the law.

QUOTE (Rico 6.9 @ Tue, 27 Apr 2010 - 01:12) *
I see why most folk just cough up £30 that the Council desperately needs but I'm afraid that their law breaking in achieving this is unacceptable. How "process" can outmanoeuvre law is very worrying.[/color]

As I've said above, I suggest that you actually read the regulations.
If you were to do so, you might have some idea of what the law actually is.
The council have not broken the law, nor failed to follow the stautory procedure. You, OTOH, have failed to follow the statutory procedure.
  Forum: Council Tickets & Clamping and Decriminalis... · Post Preview: #464030 · Replies: 66 · Views: 21,113

jeffreyarcher
Posted on: Tue, 27 Apr 2010 - 00:13


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QUOTE (glasgow_bhoy @ Mon, 26 Apr 2010 - 23:26) *
so why should this be any diffrent. the guy is a just a normal person. leave him be.

No he's not. He is a senior member of a goverment, a potential future leader of the party, who, in their first ten years, created over 3000 new offences; an average of 300 / year. A rate (or anything like it) which has never, ever, been seen before in the U.K., or any of its constituent bits.

The previous two posters were bang on the money. Laws are soemthing for the riff raff and the proletariat to have to obey.
  Forum: News / Press Articles · Post Preview: #464028 · Replies: 9 · Views: 2,354

jeffreyarcher
Posted on: Tue, 27 Apr 2010 - 00:01


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I guess the law has changed over the years.AFAIK, you didn't even have to stop if it was just an animal that you hit. Dogs, however, did have to be reported to a police station. unsure.gif
  Forum: News / Press Articles · Post Preview: #464025 · Replies: 8 · Views: 2,273

jeffreyarcher
Posted on: Mon, 26 Apr 2010 - 23:49


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I would suggest slight variation to what Simon has suggested.
Put the paperwork, untouched, back in the original envelope. Put the whole lot in another envelope, addressed to the return address, with a covering letter.
Explain that the addressee is out of the country until xx/xx/xx, howver, his address is [provide address].
Don't mention e-mail or satellite 'phone, that just confuses the issue. Nor should you mention photos, or anything else related to the enquiry either.
This puts the ball (and any expense) back in their court.
Replying (perhaps very) late, and relying on the 'reasonably practicable' defence, puts that burden squarely on the defence.
  Forum: Speeding and other Criminal Offences · Post Preview: #464024 · Replies: 7 · Views: 1,982

jeffreyarcher
Posted on: Mon, 26 Apr 2010 - 23:27


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QUOTE (peterguk @ Mon, 26 Apr 2010 - 18:16) *
Legal aid for a parking offence? rolleyes.gif

Aberdeen's decriminalised (RTA 1991 procedure still applies in Scotland).

QUOTE (Glacier2 @ Mon, 26 Apr 2010 - 18:22) *
Legal aid for a Judicial Review into Aberdeen's refusal to accept an informal appeal.

On the face of it, however, the OP has raised various issues which are relevent for JR;
1) (As you say) Judicial Review into Aberdeen's refusal to accept an informal appeal.
2) JR of the Scottish Ministers removal [*] of the victim's RTA 1991 right to contest the effect (a decree arbital) of the Charge Cert. in a court (for any reason whatsoever, even issuing them early for which Aberdeen were renowned for doing), and the consequent powerlessness of the sheriff (or any other court) in this case to do anything.
3) JR of Aberedeen passing the bank account details, provided for the express purpose of paying the council tax, on to the sheriff's officers. (the latter would seem to merit a compalint to the ICO anyway).
[*] AFAIK, unlike in England & Wales, there is no three month time limit on a JR. If the time is prolonged, the applicant may be held to have acquiesed to the conduct, but that would hardly seem to be the case here, if this is the first time that this has happened to him.

All of that said, I fear that the bottom line, certainly as far as (1) is concerned, is that there is a statutory procedure. The council complied with it, the OP did not.

I am still unclear as to why the OP was purportedly unable to make formal representations, in accordnace with procedure. E.g. was the NtO incorrectly worded, or not served. or was the CC issued early?
  Forum: Council Tickets & Clamping and Decriminalis... · Post Preview: #464022 · Replies: 66 · Views: 21,113

jeffreyarcher
Posted on: Sun, 25 Apr 2010 - 22:37


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QUOTE (henrik777 @ Sat, 24 Apr 2010 - 19:02) *
It has crossed my mind that the lack of lighting means that the requisite signs have not to used and thus the TTRO is wholly invalid but that hasn't been tested to my knowledge but is one of my points regarding another temp speed area.

Have you forgotten DPP v Butler already? ohmy.gif

An English case, but it would almost certainly be followed by lower Scottish courts, particularly as it is in lne with Scottsih authority.
  Forum: Speeding and other Criminal Offences · Post Preview: #463648 · Replies: 9 · Views: 3,459

jeffreyarcher
Posted on: Sat, 24 Apr 2010 - 00:35


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I have split this thread, as such sterile debates are of no assistance whatsoever to the OP, and only cause confusion to them (even if there was any merit in them).

QUOTE (7159keith @ Fri, 23 Apr 2010 - 08:24) *
I understand your point JA but S172 has nothing to do with the location of the vehicle (that is a defence for a speeding allegation), it is about providing information related to the driver of a vehicle at the time of an alleged offence. The only point relevant to the vehicle is the often discussed - is the S172 valid if the vehicle was not in use at the time of the alleged offence?

It has everything to do with the S172 charge, and I have cited the relevent authorities (Neal v Fior and Jacob v Garland). The OP is not refusing to identify the driver, the point is that he cannot, because his car wasn't at the place alleged at the time alleged.

QUOTE (7159keith @ Fri, 23 Apr 2010 - 08:24) *
Assuming the S172 request is valid, IMV the OP credibly showing the court that on the day she was in a meeting and she had no reason to believe the car had been moved by a third party, even checking with the SCP that the time was correct, should show she had fully discharged her S172 responsibilities to the best of her ability.

I have already explained where the OP was is irrelevent, except insofar as it is part of the proof of where the car was, viz. in the car park, and not at the place alleged on the notice.

QUOTE (7159keith @ Fri, 23 Apr 2010 - 08:24) *
If the proven fact that the car was in a car park at the time of the alleged offence invalidates the S172 requirement, that is a different defence, maybe others can comment on this aspect.

It doesn't invalidate the S172 requirement, the recipient still has to give the information, "Not my car, guv; tough sh*t. My car was at XYZ at the time." Having done so, the burden then falls to the prosecution to prove that the subject (of the notice) vehicle was at the alleged location.

QUOTE (Gan @ Fri, 23 Apr 2010 - 19:42) *
As they're adamant that the camera was correct, they can't fall back on the slip rule.

It's nothing to do with the slip rule. The recipient has been asked who was driving the car at a specific time and place.
  Forum: The Flame Pit · Post Preview: #463283 · Replies: 25 · Views: 5,162

jeffreyarcher
Posted on: Sat, 24 Apr 2010 - 00:13


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I am unaware of any legal requirement that you claim off of your insurance policy.
If anyone thinks that there is one, I'd be interested to know where it is.
Should the OP wish to do so, he should prominently endorse his accident noticfication form, with the words, "This information is provided in accordance with my policy requirements, however, it is not a claim at this stage."
Whether dealing with it oneself, when the other parties appear to be trying to scam a personal injury claim, is a good idea, is another matter.
Furthermore, the trems of insurance policies usually mean that if you do start dealing with it yourself, they are quite likely within their rights to refuse to subsequently cover any liabilty, if you change your mind.
  Forum: Speeding and other Criminal Offences · Post Preview: #463278 · Replies: 14 · Views: 3,713

jeffreyarcher
Posted on: Fri, 23 Apr 2010 - 00:41


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QUOTE (ford poplar @ Fri, 23 Apr 2010 - 01:10) *
A recent thread queried tickets for parking in a road restricted 'except for access'

The above pics relate to a different road, a cul de sac near a town centre, where Police at request? of residents, have issued FPNs for obstruction. The Police have now erected their own 'helpful' warning sign.
Any observations?

Contravention of the order (an order is required for that trafic sign) is nothing whatsoever to do with obstruction.
I'm not up on TMA 2004, but might it be that that sign, being a decrininalised sign, the police cannot issue an (criminal) FPN for contravention of the sign?

As has been raised elsewhere, it is a difficult contravention to prove, beyond a reasonable doubt.
  Forum: Council Tickets & Clamping and Decriminalis... · Post Preview: #463029 · Replies: 1 · Views: 1,429

jeffreyarcher
Posted on: Thu, 22 Apr 2010 - 15:15


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I fear that you misunderstand; don't worry about it, many police forces don't seem to understand either.
Despite invariably coming in the same envelope, and often on the same bit of paper, what is colloquially known as a NIP is actually two things;
1) A Notice of Intended Prosecution issued under S1 RTOA 1988, and a
2) Requirement to name the driver of the vehicle at the time, issued under S172 RTA 1988.

A NIP (1) must be received by the registered keeper, as per the DVLA records (or the driver, if he is known), within 14 days of the alleged offence (e.g. speeding). If that does not happen, no conviction for the (e.g.) speeding offence is possible. If it does happen (in time) no one else need recive one at all (although they usually do).
A S172 notice (2) should be addressed to the company secretary. There is no time limit on a S172 notice. Further, even if (1) has not been complied with, that does not relieve the (2) recipient of their obligation to name the driver (although the (e.g.) speeding offence couldn't go anywhere).

So, in this case, it seems that the original S172 notice was not properly served, but the NIP was.
It is only the NIP that they cannot re-issue late; they can re-issue a S172 at any time.

So, it seems that, if the original notice had been ignored, the company would have had a valid defence to the S172 charge (and the speeding couldn't have gone anywhere, because they didn't know who was driving). However, having pointed out their error to them, and been re-issued with a valid S172 notice, the company must now respond (or be prosecuted for S172).

All of the above said, we are now three months into the six months. Depending upon how far into this notice's 28 days you are, and whether the alleged speed is a fixed penalty speed, you may be tantalisingly close to a time-out.
  Forum: Speeding and other Criminal Offences · Post Preview: #462841 · Replies: 4 · Views: 2,400

jeffreyarcher
Posted on: Thu, 22 Apr 2010 - 14:53


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QUOTE (Dibby @ Tue, 20 Apr 2010 - 15:45) *
turns out he's not a site founder but a respected member who has contributed a lot and well known to the team here. He advised me to send a letter, drafted one for me and asks for the video evidence to be provided.

You seem to be remarkably reluctant to tell us who this purported respected member is.
  Forum: Speeding and other Criminal Offences · Post Preview: #462832 · Replies: 43 · Views: 9,216

jeffreyarcher
Posted on: Thu, 22 Apr 2010 - 14:21


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That's as may be, but your original text, which I quoted, was in serious danger of mileading the OP as to what the important issue was; viz. that she was in a meeting, and it was just a bonus ("even better") if she could prove where the car was.
That is perpetrating (IMO) the misunderstanding that newbies have, that because they weren't driving, they can't be guilty of S172.
I say again, the critical point is wher the car was. Where the notice recipient was is, generally, irrelevent. In this case, however, where the OP was is part of the proof of where the car was, that is its function. I.e. there was only one set of keys, the OP had them with her in the meeting, she left the car in the car park beforehand, and it was still there when she returned.
Proof of where the car was is not just a bonus, as you inferred; it is the critical point at issue.
  Forum: Speeding and other Criminal Offences · Post Preview: #462823 · Replies: 61 · Views: 14,230

jeffreyarcher
Posted on: Thu, 22 Apr 2010 - 03:04


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QUOTE (7159keith @ Wed, 21 Apr 2010 - 15:42) *
So 7b applies below.
(7) A requirement under subsection (2) may be made by written notice served by post; and where it is so made—
(a)
it shall have effect as a requirement to give the information within the period of 28 days beginning with the day on which the notice is served, and
(b)
the person on whom the notice is served shall not be guilty of an offence under this section if he shows either that he gave the information as soon as reasonably practicable after the end of that period or that it has not been reasonably practicable for him to give it.

Not quite;
QUOTE (jeffreyarcher @ Tue, 22 Dec 2009 - 00:40) *
Not so. Where the notice recipient has denied that it was the subject (of the notice) vehicle that was involved in the alleged offence, it is for the prosecution to prove that it was (Neal v Fior, Jacob v Garland).

The difference is important, because using S172(7), the burden is on the defence (to a balance of probabilities standard).
Once the OP has denied that it was the subject vehicle, the burden is on the prosecution to show that it was (beyond a reasonable doubt) (Neal v Fior, Jacob v Garland).

QUOTE (7159keith @ Wed, 21 Apr 2010 - 15:42) *
If you decide to fight then you will need to show evidence that you were in a meeting at that time and even better if you can show that your car was in the car park at that time.

The point at issue is where the car was. Where the OP was, itself, is irrelevent. It's importance is as part of the evidence as to where the car was.

QUOTE (jobo @ Wed, 21 Apr 2010 - 18:40) *
which includes your witness statement and if the CPS dont object then your witness need NOT attend

No! A letter's no good. It has to be in the prescribed form, viz. containing the declaration of truth etc.
  Forum: Speeding and other Criminal Offences · Post Preview: #462688 · Replies: 61 · Views: 14,230

jeffreyarcher
Posted on: Thu, 22 Apr 2010 - 02:48


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QUOTE (newbie_driver @ Wed, 21 Apr 2010 - 20:02) *
if so then they have not recieved it at all, and i am the recipient of the first nip, would this help my case in any way?

It depends; if it was posted in good time (and recorded delivery was used [#]), but not received, the it is still deemed to be received.
[#] In Scotland, posting by first class post is also deemed to have been received, although, IMO, the High Court of Justiciary could be convinced of the error of their ways.
QUOTE (peterguk @ Wed, 21 Apr 2010 - 20:10) *
I see the Constabulary was Dumfries and Galloway. Was the NIP sent by Recorded Delivery by any chance?

They only send the first one in the chain by recorded delivery.
  Forum: Speeding and other Criminal Offences · Post Preview: #462687 · Replies: 20 · Views: 5,603

jeffreyarcher
Posted on: Thu, 22 Apr 2010 - 02:33


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QUOTE (skipps @ Wed, 21 Apr 2010 - 06:02) *
As the MD of the business, I will ultimately be held responsible.

How so? By the shareholders, perhaps.
But not by the police [*]; a company S172 is the responsibility of the company. The obligation [on the notice recipient] is a personal one, and cannot be delegated (Hodgson v Burn).
[*] There are connivance/ negligence provisions, which may also 'attach' the company offence to an individual, however;
1) Such prosecutions are rare (unheard of on here), and
2) The guilt of the individual would have to be proved, he cannot be guilty just because he is the company secretary or the M.D.

QUOTE (Gan @ Wed, 21 Apr 2010 - 06:33) *
If you return it yourself, the police might go straight to a COFP

In which case, both the company and the OP would get a 'get out of jail free' card.
The chances of a time-out in this case are non-existant rolleyes.gif
  Forum: Speeding and other Criminal Offences · Post Preview: #462686 · Replies: 10 · Views: 2,585

jeffreyarcher
Posted on: Thu, 22 Apr 2010 - 01:27


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It is contary to the Privacy and Electronic Communcation Regulations (IIRC) to spam a mobile for marketing purposes.
Also, IIRC, a contravention is one for which only the Information Commissioner can commence proceedings. Anyone else needs the approval of the DPP.
And since the Information Commissioner won't actually prosecute anyone, the regs. are somewhat toothless. A complaint to the IC, though, usually does stop the spam texts (from 'legitimate' U.K businesses).
  Forum: The Flame Pit · Post Preview: #462684 · Replies: 20 · Views: 8,467

jeffreyarcher
Posted on: Thu, 22 Apr 2010 - 01:06


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QUOTE (Rico 6.9 @ Thu, 22 Apr 2010 - 00:58) *
A notice to owner is issued allowing you to appeal again (hang on a minute - they've just refused me?). I have a choice to pay £60 or start the merry dance. Or see what happens (believing the law to be in favour of justice).
Charge certificate shows up.

So, did they issue the charge cerificate early; i.e. within the time allowed for appealing to SPAS?
Or, are you saying that that you just ignored the NTO?
If the latter, I fear that you misunderstand the system. unsure.gif
And why do you think that the council have acted unreasonably?
If you ignored the NTO, on the face of it, the only thing that might be unreasonable is the amount (£525).
As to the sheriff's inability to quosh the charge cerificate, that is down to the toytown politicians in Embra, who, when implementing the RTA 1991 procedure in Scotland, removed (from the RTA 1991 procedure) the victim's right to challenge the issuance in court (as applied in England & Wales).
A poster on here complained to his MSP a while back about that. The MSP didn't even understand the issue, and simply forwarded some civil servant's spin on the matter (which completely ignored the fundamental complaint).
  Forum: Council Tickets & Clamping and Decriminalis... · Post Preview: #462682 · Replies: 66 · Views: 21,113

jeffreyarcher
Posted on: Mon, 19 Apr 2010 - 22:33


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QUOTE (southpaw82 @ Sun, 18 Apr 2010 - 15:36) *
So, the question would be: is a cyclist riding his cycle a pedestrian?

AFAIK, a mounted cyclist is driving a vehicle (c.f. 'No Entry' signs). Where that's defined, though, I don't know.
  Forum: Speeding and other Criminal Offences · Post Preview: #461992 · Replies: 17 · Views: 4,928

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