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Idling of vehicle whilst Stationary !, Hand written. No Pictures!!
Phil_Barker
post Tue, 22 May 2018 - 07:49
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Hi, me, yet again.

Driver grought the ticket below into the office. Never seen anything ike it before.

He arrived at he road in question, and parked up his vehicle. Shortly after that a warden came past. Nothing happened on that occasion. The warden did however pass by a short while later and then issued him with a ticket saying that he had been parked up with his engine on. The driver informed me that his engine was off, and turned it on then off infront of the warden.
Warden then said it had been on earlier (when it wasnt)

At no point were photographs taken of the driver, or his vehicle that the driver was aware of.

I do have GPS recording evidence to show that he was not there for a very long time.

What are his options?

Is this valid?

Is it likely to result in a criminal prosection?

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post Tue, 22 May 2018 - 07:49
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soggi
post Tue, 29 May 2018 - 07:28
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Its a ridiculously vague 'offence' which should have been contested during the consultation/implementation period, theres no 'without reasonable excuse' or any exemptions for starters what about stationary vehicles at traffic lights for example? These FPNs are not fines they are just a revenue stream, if you refuse to pay the FPN just disapears its not a debt. The Council can choose to prosecute if you dont pay but will have to prove beyond reasonable doubt that the offence was commited in Court. The word of a Council official is no more believable than the driver so without evidence they dont have much chance of conviction, they are also complacent as most people pay so have poor systems in place for note taking etc. The simple fact that the FPN is incorrect just goes to show how incompetant they are, you haven't breached a community protection order, you breached a PSPO twe different things completely!

This post has been edited by soggi: Tue, 29 May 2018 - 07:33
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DastardlyDick
post Tue, 29 May 2018 - 08:33
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QUOTE (soggi @ Tue, 29 May 2018 - 08:28) *
Its a ridiculously vague 'offence' which should have been contested during the consultation/implementation period, theres no 'without reasonable excuse' or any exemptions for starters what about stationary vehicles at traffic lights for example? These FPNs are not fines they are just a revenue stream, if you refuse to pay the FPN just disapears its not a debt. The Council can choose to prosecute if you dont pay but will have to prove beyond reasonable doubt that the offence was commited in Court. The word of a Council official is no more believable than the driver so without evidence they dont have much chance of conviction, they are also complacent as most people pay so have poor systems in place for note taking etc. The simple fact that the FPN is incorrect just goes to show how incompetant they are, you haven't breached a community protection order, you breached a PSPO twe different things completely!


This may assist:-

"Police Officers, local authorities and PCSOs can issue CPNs but before doing so, they must consider two things; whether the conduct is having a detrimental effect on the communities quality of life and also whether said conduct is unreasonable.
The individual must be given a written warning beforehand stating that if the behaviour doesn't cease, the notice will be issued"

So, was a written warning given before the FPN was issued? If not, I would suggest that the FPN must fail.

A PSPO and a CPN are not different - one is the result of the other. - in this case the Council have a PSPO in place for the location, which allows them to issue CPNs, and if the CPN is breached an FPN can be issued to enforce the CPN

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DastardlyDick
post Tue, 29 May 2018 - 08:48
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QUOTE (cp8759 @ Mon, 28 May 2018 - 19:00) *
QUOTE (DastardlyDick @ Mon, 28 May 2018 - 15:29) *
QUOTE (Asif Nazir @ Sun, 27 May 2018 - 23:55) *
the council cannot make a PSPO which is covered by an existing law.

It creates double jeopardy.


I seem to remember the "Double Jeopardy" Law(s) being repealed some time ago, so that the killers of Stephen Lawrence could be prosecuted again.

The law on Double Jeopardy still exists, but Parliament has created an exception for a limited number of very serious offences (murder, manslaughter, kidnapping, serious sexual offences, terrorism, war crimes and so on), where the Director of Public Prosecutions consents and the Criminal Division of the Court of Appeal gives permission, see https://www.cps.gov.uk/legal-guidance/retri...erious-offences

However what Asif Nazir says does not appear to be correct, there are plenty of courses of conduct that amount to offences under more than one statute and this does not create an issue. I can see no authority to support the idea that a council cannot make a PSPO which is covered by an existing law. Double Jeopardy simply means that if you've been previously convicted or acquitted for an offence, you cannot be put on trial again for the same offence (barring the exceptional cases where the Court of Appeal can give permission for a second trial).


So which Law is the PSPO duplicating?
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soggi
post Tue, 29 May 2018 - 21:45
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QUOTE (DastardlyDick @ Tue, 29 May 2018 - 08:33) *
QUOTE (soggi @ Tue, 29 May 2018 - 08:28) *
Its a ridiculously vague 'offence' which should have been contested during the consultation/implementation period, theres no 'without reasonable excuse' or any exemptions for starters what about stationary vehicles at traffic lights for example? These FPNs are not fines they are just a revenue stream, if you refuse to pay the FPN just disapears its not a debt. The Council can choose to prosecute if you dont pay but will have to prove beyond reasonable doubt that the offence was commited in Court. The word of a Council official is no more believable than the driver so without evidence they dont have much chance of conviction, they are also complacent as most people pay so have poor systems in place for note taking etc. The simple fact that the FPN is incorrect just goes to show how incompetant they are, you haven't breached a community protection order, you breached a PSPO twe different things completely!


This may assist:-

"Police Officers, local authorities and PCSOs can issue CPNs but before doing so, they must consider two things; whether the conduct is having a detrimental effect on the communities quality of life and also whether said conduct is unreasonable.
The individual must be given a written warning beforehand stating that if the behaviour doesn't cease, the notice will be issued"

So, was a written warning given before the FPN was issued? If not, I would suggest that the FPN must fail.

A PSPO and a CPN are not different - one is the result of the other. - in this case the Council have a PSPO in place for the location, which allows them to issue CPNs, and if the CPN is breached an FPN can be issued to enforce the CPN

The two are completely different! A CPN is similar to an ASBO, and requires an individual to cease doing something that's anti social such as playing music 24hrs a day and requires them to get a warning, a PSPO makes it an offence for anyone to do a specific anti social activity such as begging.
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Barry S
post Tue, 29 May 2018 - 22:31
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I stand for correction, but unless it's been photoshopped, all of the dates on said FPN are from 2016, making it two years old! Would this be a barrier to progressing it any further and give the potential for the Council to cancel it out of embarrassment?
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cp8759
post Tue, 29 May 2018 - 22:40
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QUOTE (Barry S @ Tue, 29 May 2018 - 23:31) *
I stand for correction, but unless it's been photoshopped, all of the dates on said FPN are from 2016, making it two years old! Would this be a barrier to progressing it any further and give the potential for the Council to cancel it out of embarrassment?

The statute of limitations is six months for most summary offences. But it looks like there's two many instances for it to be a typo. Phil_Barker, when did the alleged offence occur?


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cp8759
post Tue, 29 May 2018 - 22:52
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QUOTE (Asif Nazir @ Tue, 29 May 2018 - 01:42) *
You seem to think that by double jeopardy I mean tried twice for the same crime, I don't, and the law changed on that in 2005. Double jeopardy means charged twice by different authorities for the same thing.

The definition given by the CPS for double jeopardy is

"There are two principles arising from the common law which prevent this. The first is known as autrefois acquit and autrefois convict. These principles provide a bar to a trial, in respect of the same offence, of a person who has previously been either acquitted or convicted of that offence. The second arose where the courts considered it an abuse of process for additional charges to be brought, following an acquittal or conviction, for different offences which arose from the same behaviour or facts (there were exceptions to this rule)."

You seem to be suggesting that it is unlawful for a council to make it illegal to do something which has already been made illegal by another enactment, this is not correct. There are countless instances where a course of conduct is punishable under more than one enactment, and as the CPS guidance explains, it is only an abuse of process if, following unsuccessful enforcement under one statute, the same or a different authority attempts enforcement for the same conduct under the other statute.

If the driver in this case is already subject to criminal proceedings by the police, it is an abuse of process for the council to go after him as well. But the driver can't claim a double jeopardy defence just because, even though the police haven't charged him, they could have.


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Asif Nazir
post Tue, 29 May 2018 - 23:43
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No.

Parliament has set the STATUTORY penalty for idling at £20. If Parliament thought it should be more, it would raise the penalty. But is has not.

If you think, that as a matter of law, a LA can overrule Parliament, as sovereign, then you are wrong.

As I have already explained, some LA's are now trying to use these orders in place of civil parking contraventions, and I can tell you that the DfT
is not happy.

They are also using the orders for causing alarm, harassment and distress which is POA 1986. What's next - murder?


(5)The only prohibitions or requirements that may be imposed are ones that are reasonable to impose in order—
(a)to prevent the detrimental effect referred to in subsection (2) from continuing, occurring or recurring, or
(b)to reduce that detrimental effect or to reduce the risk of its continuance, occurrence or recurrence.

If there is a statutory offence already in place (such as the Traffic Mang Act) then it cannot be reasonable to make an Order.


(8)A public spaces protection order must be published in accordance with regulations made by the Secretary of State.

the guidance is going to be changed due to abuse by councils.
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cp8759
post Tue, 29 May 2018 - 23:54
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QUOTE (Asif Nazir @ Wed, 30 May 2018 - 00:43) *
They are also using the orders for causing alarm, harassment and distress which is POA 1986. What's next - murder?

Even if a council make an order which is completely illegal, I don't see how that could ever amount to a public order offence. At most you could get the High Court to quash it, the council are not going to be fined for making the order in the first place.

QUOTE (Asif Nazir @ Wed, 30 May 2018 - 00:43) *
If there is a statutory offence already in place (such as the Traffic Mang Act) then it cannot be reasonable to make an Order.

Are you able to quote any authoritative legal source (i.e. not your opinion) to support this?


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DastardlyDick
post Wed, 30 May 2018 - 00:43
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QUOTE (soggi @ Tue, 29 May 2018 - 22:45) *
QUOTE (DastardlyDick @ Tue, 29 May 2018 - 08:33) *
QUOTE (soggi @ Tue, 29 May 2018 - 08:28) *
Its a ridiculously vague 'offence' which should have been contested during the consultation/implementation period, theres no 'without reasonable excuse' or any exemptions for starters what about stationary vehicles at traffic lights for example? These FPNs are not fines they are just a revenue stream, if you refuse to pay the FPN just disapears its not a debt. The Council can choose to prosecute if you dont pay but will have to prove beyond reasonable doubt that the offence was commited in Court. The word of a Council official is no more believable than the driver so without evidence they dont have much chance of conviction, they are also complacent as most people pay so have poor systems in place for note taking etc. The simple fact that the FPN is incorrect just goes to show how incompetant they are, you haven't breached a community protection order, you breached a PSPO twe different things completely!


This may assist:-

"Police Officers, local authorities and PCSOs can issue CPNs but before doing so, they must consider two things; whether the conduct is having a detrimental effect on the communities quality of life and also whether said conduct is unreasonable.
The individual must be given a written warning beforehand stating that if the behaviour doesn't cease, the notice will be issued"

So, was a written warning given before the FPN was issued? If not, I would suggest that the FPN must fail.

A PSPO and a CPN are not different - one is the result of the other. - in this case the Council have a PSPO in place for the location, which allows them to issue CPNs, and if the CPN is breached an FPN can be issued to enforce the CPN

The two are completely different! A CPN is similar to an ASBO, and requires an individual to cease doing something that's anti social such as playing music 24hrs a day and requires them to get a warning, a PSPO makes it an offence for anyone to do a specific anti social activity such as begging.

No, an ASBO is handed down by a Court after due process. A CPN is issued by a Police Officer, a PCSO or a Council Officer and then challenged in a Court if the person/organization thinks it's been incorrectly issued.
In this case it appears (at the moment) that this driver has not been given a written warning prior to the issue of a CPN which the Law says has to happen. Hopefully, the OP will be able to tell us.

This post has been edited by DastardlyDick: Wed, 30 May 2018 - 00:52
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Asif Nazir
post Wed, 30 May 2018 - 00:57
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QUOTE (cp8759 @ Wed, 30 May 2018 - 00:54) *
QUOTE (Asif Nazir @ Wed, 30 May 2018 - 00:43) *
They are also using the orders for causing alarm, harassment and distress which is POA 1986. What's next - murder?

Even if a council make an order which is completely illegal, I don't see how that could ever amount to a public order offence. At most you could get the High Court to quash it, the council are not going to be fined for making the order in the first place.

QUOTE (Asif Nazir @ Wed, 30 May 2018 - 00:43) *
If there is a statutory offence already in place (such as the Traffic Mang Act) then it cannot be reasonable to make an Order.

Are you able to quote any authoritative legal source (i.e. not your opinion) to support this?



Because it is a defence in law that the Order breached was ultra vires.

If someone is given a FPN for whistling which is a breach of a PSPO do you think a court will uphold that?

(3)A person does not commit an offence under this section by failing to comply with a prohibition or requirement that the local authority did not have power to include in the public spaces protection order.

What happens if you dont give your name and address?
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DastardlyDick
post Wed, 30 May 2018 - 01:01
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QUOTE (Barry S @ Tue, 29 May 2018 - 23:31) *
I stand for correction, but unless it's been photoshopped, all of the dates on said FPN are from 2016, making it two years old! Would this be a barrier to progressing it any further and give the potential for the Council to cancel it out of embarrassment?


A good point, well presented! I hadn't spotted that and yet the OP is suggesting he (or one of his employees) has only just got it. OP?
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hcandersen
post Wed, 30 May 2018 - 06:54
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Before we debate ad ****eam, we normally try to establish the facts.

The OP has still not come back on these points.

Being a ***O or by whatever does not remove the ability to see and listen.

So, was the engine idling or wasn't it? If not, I want the OP to say, after having spoken to the driver or through alternative informed investigation, why the officer thought the engine was idling.

Dirty Harry could spot an idling car from 50 metres.

And 2016 was two years ago. Is this a multiple typo or the correct date?

So, OP?
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DastardlyDick
post Wed, 30 May 2018 - 07:53
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QUOTE (Asif Nazir @ Wed, 30 May 2018 - 00:43) *
No.

Parliament has set the STATUTORY penalty for idling at £20. If Parliament thought it should be more, it would raise the penalty. But is has not.

If you think, that as a matter of law, a LA can overrule Parliament, as sovereign, then you are wrong.

As I have already explained, some LA's are now trying to use these orders in place of civil parking contraventions, and I can tell you that the DfT
is not happy.

They are also using the orders for causing alarm, harassment and distress which is POA 1986. What's next - murder?


(5)The only prohibitions or requirements that may be imposed are ones that are reasonable to impose in order—
(a)to prevent the detrimental effect referred to in subsection (2) from continuing, occurring or recurring, or
(b)to reduce that detrimental effect or to reduce the risk of its continuance, occurrence or recurrence.

If there is a statutory offence already in place (such as the Traffic Mang Act) then it cannot be reasonable to make an Order.


(8)A public spaces protection order must be published in accordance with regulations made by the Secretary of State.

the guidance is going to be changed due to abuse by councils.


Instead of throwing random quotes around, why not give the Acts or SIs you are using? Name the LAs using PSOPs for Parking contraventions? Show how LAs are breaching the SoS's regulations? Do you work for the DfT? You claim to know what they're thinking/intend to do?
There is no breach of s. 5 POA - correctly enforcing the Law cannot cause Harassment, Alarm or Distress.
No-one has said that LAs can over-ride Parliament, they are using powers granted to them by Parliament.


This post has been edited by DastardlyDick: Wed, 30 May 2018 - 07:58
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cp8759
post Wed, 30 May 2018 - 12:24
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QUOTE (Asif Nazir @ Wed, 30 May 2018 - 01:57) *
Because it is a defence in law that the Order breached was ultra vires.

You are absolutely correct that it is a defence in law if the authority had no power to make the order. However what I am really looking for is something other than your opinion which shows the order is, or might be, ultra vires.


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