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HA14 – Depositing anything on highway to the interruption of the user
NaughtyBoy12
post Wed, 18 Nov 2020 - 22:31
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Something different. Please say if it is not appropriate to seek advice here.

Just received the below Fixed Penalty Notice form London Borough of Redbridge. I moved my small boat from the driveway on to the road opposite the driveway, where I normally park the car. The car went on the driveway so I could fix it for it’s MOT.

Having checked my front doorbell recordings, it seem that a Council person parked up behind a hedge took the photo then drove away. There was no attempt to check the trailer, or to be visible from the House. I think the Council could have at least knocked on the door, or placed some kind of warning on the boat/trailer to say that it is not allowed to be on the road.

I have looked up the offence under the Highways Act 1980

“148 Penalty for depositing things or pitching booths etc. on highway.
If, without lawful authority or excuse—
(a) a person deposits on a made-up carriageway any dung, compost or other material for dressing land, or any rubbish, or
(b) a person deposits on any highway that consists of or comprises a made-up carriageway any dung, compost or other material for dressing land, or any rubbish, within 15 feet from the centre of that carriageway, or
© a person deposits any thing whatsoever on a highway to the interruption of any user of the highway, or
(d) a hawker or other itinerant trader pitches a booth, stall or stand, or encamps, on a highway.he is guilty of an offence and liable to a fine not exceeding [F1level 3 on the standard scale].”

Is it a criminal offence or a civil offence? I am assuming I am liable as owner of the boat and trailer? The PCN is addressed to the householder. Is the householder liable as this is where the trailer came from? How can a trailer on a highway occupying a space where a vehicle normally parks be interrupting the highway? Or is it simply that if it is not a registered vehicle, or attached to a vehicle, then it is interrupting the highway?

Any thoughts appreciated.




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post Wed, 18 Nov 2020 - 22:31
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PASTMYBEST
post Sun, 22 Nov 2020 - 14:04
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QUOTE (Neil B @ Sun, 22 Nov 2020 - 13:49) *
QUOTE (PASTMYBEST @ Sun, 22 Nov 2020 - 12:36) *
I think they should have stuck closer to CP's put up or shut up tack because the route they have chosen will entail a lot of correspondence for the friend and no doubt worry as well

But the OP has decided on a route.

I haven't read anything that suggests the OP is not going along with cp's suggestion?


the OP's draft


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cp8759
post Sun, 22 Nov 2020 - 17:02
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QUOTE (NaughtyBoy12 @ Sat, 21 Nov 2020 - 22:29) *
The householder can say nothing and wait to be taken to court, where there is no proof that she did it. She can say that she didn’t do it. She can say that she didn’t do it and NaughtyBoy did it. Or, she can pay the fine.

She could also decide to give evidence and she'd win anyway, as the offence could not be made out. There is not way she could be found guilty, well not if the court operates within the bounds of the law anyway.

In any case the council won't take the case to court because once a council solicitor looks at it, they'll likely realise they don't have a case.


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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 Sun, 22 Nov 2020 - 17:24
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QUOTE (PASTMYBEST @ Sun, 22 Nov 2020 - 14:04) *
QUOTE (Neil B @ Sun, 22 Nov 2020 - 13:49) *
QUOTE (PASTMYBEST @ Sun, 22 Nov 2020 - 12:36) *
I think they should have stuck closer to CP's put up or shut up tack because the route they have chosen will entail a lot of correspondence for the friend and no doubt worry as well

But the OP has decided on a route.

I haven't read anything that suggests the OP is not going along with cp's suggestion?


the OP's draft

and cp's draft followed it?

Perhaps he could just confirm for us that he's going to follow the advice?

This post has been edited by Neil B: Sun, 22 Nov 2020 - 19:01


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

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mickR
post Sun, 22 Nov 2020 - 17:58
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QUOTE (TryOut @ Sat, 21 Nov 2020 - 11:25) *
QUOTE (NaughtyBoy12 @ Fri, 20 Nov 2020 - 12:33) *
Thank you to all for your thoughts and suggestions. They have been very helpful in discussing with the householder. She feels there are others supporting her, who are much more competent than I am.

She has agreed that I should dispute the Penalty on the Redbridge website “Pay or dispute a Fixed Penalty Notice”.

DRAFT 1

The boat and trailer that you have sent me a photograph of are not mine, they do not belong to me, nor do they belong to any member of my household. I did not park the trailer in the road, nor did I give any sort of permission for the trailer to be parked in the road.

You clearly do not have any evidence of who the boat and trailer belong to, nor any evidence of who placed them in the road opposite my house. If you did, you would not be pursing me for an alleged offence that I did not, and could not, have committed.

I trust you will withdraw your allegation made against me.

I have spoken to the owner of the boat and trailer and they asked. How is parking a road going trailer on a road, where people park other road vehicles, where there are no parking restrictions, an interruption to the user of the highway?

You appear to be willing to engage your friend in a fabrication around the facts to avoid the penalty for leaving the obstruction g junk on the road. I think your friend has every right to be upset with you and may be tempted to redraft this as :
The. Oat owner and perpetrator is NaughtyBoy, naughtyboy’s house. Address your notice to him

Also, if you would have moved the boat when asked, why did you leave it on the road?


Have you actually read the thread from the start?
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NaughtyBoy12
post Mon, 23 Nov 2020 - 12:26
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All of your feedback is much appreciated. Including TryOut who reminded me that some can see the situation differently.

The householder is happy with the below text. Q2 is added to lay the grounds for a future complaint about lack of engagement.

DRAFT 2

I deny your allegation and I will not be paying the Fixed Penalty Notice. Should the Council wish to pursue this matter, please instigate proceedings at the earliest opportunity. Unless you are willing to withdraw the matter, the case file should be passed to your Legal Department without delay, rather than sending me pointless letters asking me to pay the Fixed Penalty Notice.

Your solicitor will require strict proof, per the Code of Practice for Crown Prosecutors. Please provide the evidence you intend to use in court to show I placed the boat in the road.

Whist writing, I would like to ask:

1) How is parking a road going trailer on a road, where people park other road vehicles, where there are no parking restrictions, an interruption to the user of the highway?

2) Why did the official that took the photograph not knock on the door to say that they felt there was a problem with the boat being on the highway?
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Neil B
post Mon, 23 Nov 2020 - 12:43
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QUOTE (NaughtyBoy12 @ Mon, 23 Nov 2020 - 12:26) *
Whist writing, I would like to ask:

1) How is parking a road going trailer on a road, where people park other road vehicles, where there are no parking restrictions, an interruption to the user of the highway?

2) Why did the official that took the photograph not knock on the door to say that they felt there was a problem with the boat being on the highway?

No. A complaint can follow later.
As has been explained you are just giving them something to pick up on and query back to her. Why?


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

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southpaw82
post Mon, 23 Nov 2020 - 13:13
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The solicitor will require evidence to satisfy themselves that there is a realistic prospect of conviction and that it is in the public interest to prosecute. Whether that’s what you mean by “strict proof” or not I have no idea, and probably neither will they.


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Any comments made do not constitute legal advice and should not be relied upon. No lawyer/client relationship should be assumed nor should any duty of care be owed.
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NaughtyBoy12
post Mon, 23 Nov 2020 - 14:49
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Neil B, thanks. southpaw. I was using cp’s suggested words in post #23. What about

DRAFT 3

I deny your allegation and I will not be paying the Fixed Penalty Notice. Should the Council wish to pursue this matter, please instigate proceedings at the earliest opportunity. Unless you are willing to withdraw the matter, the case file should be passed to your Legal Department without delay, rather than sending me pointless letters asking me to pay the Fixed Penalty Notice.

Your solicitor will require evidence, per the Code of Practice for Crown Prosecutors, to satisfy themselves that there is a realistic prospect of conviction and that it is in the public interest to prosecute.
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cp8759
post Mon, 23 Nov 2020 - 21:33
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Honestly (and bearing in mind what you actually do makes not difference to me, I have no skin in the game), I've looked at all the revisions and I still think my original draft would be best, this is why:

under any circumstances whatsoever illustrates that you're not joking about.

you are invited to just has more of a legalistic sound to it, it might help if anyone with half a brain picks up on this as they might take you a tad more seriously.

the council solicitor to prepare for court proceedings is better because "your Legal Department without delay" doesn't mean anything, for all you know you're already dealing with the legal department (albeit some unqualified clerk). And you want to powerfully make the point that you're daring them to take you to court, or else the householder will (as happened in another case) just get a deluge of letters for six months telling her that she really, really really must pay the FPN (which is what I'm trying to avoid, I'm sure she'd rather not deal with the stress).

Hence why I think you should include "please would you do this without delay rather than sending me pointless letters inviting me to pay the Fixed Penalty Notice."

I would drop all references to the CPS Code, to the people at the council who are not legally qualified that's just gobbledygook, and the council solicitor knows already so you don't need to tell him.

I take PMB's point about asking for evidence, but as we know there is none there's no point in asking for something that doesn't exist and won't be provided (because it doesn't exist).

So all in all, I stand by my original draft.

It's obviously up to you how you wish to proceed but that is my advice.


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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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NaughtyBoy12
post Tue, 24 Nov 2020 - 09:54
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My mention of the CPS is guided by cp’s post below on a similar thread

QUOTE (cp8759 @ Fri, 4 Oct 2019 - 11:51) *
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:

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

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.


Also by the Councils “Civic Pride and Enforcement Strategy”

http://moderngov.redbridge.gov.uk/document...%20appendix.pdf

together with

http://moderngov.redbridge.gov.uk/document...%20Strategy.pdf

The latter document states

QUOTE
10.3 Compliance with the Regulators’ Compliance Code [Legislative and Regulatory Reform Act 2006 Code of Practice] is mandatory and actual enforcement decisions on a case by case basis remains with the local authority regulator and ultimately, in the cases of matters proceeding to court, with the Head of Legal and Constitutional Services following a review of the relevant evidence and any other factors applicable at the time. If a prosecution on behalf of Redbridge Council is being considered then both the enforcing service concerned and the Head of Legal and Constitutional Services separately will apply the current code of practice for Crown Prosecutors when considering undertaking criminal proceedings.



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cp8759
post Tue, 24 Nov 2020 - 11:45
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QUOTE (NaughtyBoy12 @ Tue, 24 Nov 2020 - 09:54) *
My mention of the CPS is guided by cp’s post below on a similar thread

As far as I recall that resulted in a barrage of letters inviting the accused to pay the FPN, which is why I suggest a different approach this time.


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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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NaughtyBoy12
post Tue, 24 Nov 2020 - 12:52
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QUOTE (cp8759 @ Tue, 24 Nov 2020 - 11:45) *
As far as I recall that resulted in a barrage of letters inviting the accused to pay the FPN, which is why I suggest a different approach this time.

Understood. Thank you for your patience.
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