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JimT
Hello!

Ever since the 1984 case of Oztürk vs Germany, administrative traffic sanctions have been regarded as criminal charges for the purpose of the ECHR. It would appear to me that PCNs must be - just as the sanctions under the German OWiG law in the Oztürk case - regarded as criminal charges under the ECHR.

Now that the legal protection of the ECHR is applicable, this brings with it a number of procedural rights, including the right to adversarial proceedings, the right to a public hearing, the right to access evidence and the right to examine witnesses etc.

It would appear that the representations procedure under the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 is not compliant with Article 6 ECHR.

In many civil law jurisdictions, the prosecution service's failure to grant access to the case dossier prior to trial automatically leads to the prosecution's case being declared inadmissible by the court. The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 make no mention of a public hearing, thus it would appear as though the regulations assume that there should be no opportunity to examine witnesses during the representations phase. What if one intends to examine the CEO? Would the denial of that request by a local authority be a ground for appeal to the tribunal?

Are there any precedents of the tribunal cancelling PCNs due to local authorities acting contrary to Article 6?
Neil B
QUOTE (JimT @ Sun, 8 May 2016 - 12:46) *
failure to grant access to the case dossier

Disclosed prior to adjudication?
Various relevant info can readily be obtained earlier.

QUOTE (JimT @ Sun, 8 May 2016 - 12:46) *
The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 make no mention of a public hearing,

Adjudication?

QUOTE (JimT @ Sun, 8 May 2016 - 12:46) *
Are there any precedents of the tribunal

The tribunals don't set legal precedents.

QUOTE (JimT @ Sun, 8 May 2016 - 12:46) *
it would appear as though the regulations assume that there should be no opportunity to examine witnesses during the representations phase.

Don't representations do that? You may state whatever you believe true in dispute of any statement of the EA.

QUOTE (JimT @ Sun, 8 May 2016 - 12:46) *
What if one intends to examine the CEO? Would the denial of that request by a local authority be a ground for appeal to the tribunal?

Where and under what circumstances can you possibly expect to 'examine' a CEO prior to adjudication? As above, you state your case in reps.
If you mean request attendance of a CEO AT tribunal hearing then you can request that.
DastardlyDick
Depending on the outcome of the EU referendum, the ECHR may become irrelevant in the UK.
southpaw82
I fail to see how the adjudication process doesn't comply with Art 6.
Neil B
QUOTE (DastardlyDick @ Sun, 8 May 2016 - 14:09) *
Depending on the outcome of the EU referendum, the ECHR may become irrelevant in the UK.

How?
What has it got to do with the EU?
bargepole
QUOTE (DastardlyDick @ Sun, 8 May 2016 - 14:09) *
Depending on the outcome of the EU referendum, the ECHR may become irrelevant in the UK.

A common fallacy.

The UK signed up to the ECHR in 1950, long before the EU (formerly the EEC) ever existed.

European countries which are not EU members, such as Norway and Switzerland, remain signed up to the ECHR.

The result of the UK referendum will make no difference at all.
JimT
QUOTE (southpaw82 @ Sun, 8 May 2016 - 14:27) *
I fail to see how the adjudication process doesn't comply with Art 6.

As far as I can see the tribunal phase does indeed seem to be Article 6 compliant. What I do wonder about though is whether the representations procedure itself needs to afford the rights offered by Article 6?
southpaw82
QUOTE (JimT @ Sun, 8 May 2016 - 23:54) *
QUOTE (southpaw82 @ Sun, 8 May 2016 - 14:27) *
I fail to see how the adjudication process doesn't comply with Art 6.

As far as I can see the tribunal phase does indeed seem to be Article 6 compliant. What I do wonder about though is whether the representations procedure itself needs to afford the rights offered by Article 6?

Why would it?
DastardlyDick
QUOTE (bargepole @ Sun, 8 May 2016 - 15:18) *
QUOTE (DastardlyDick @ Sun, 8 May 2016 - 14:09) *
Depending on the outcome of the EU referendum, the ECHR may become irrelevant in the UK.

A common fallacy.

The UK signed up to the ECHR in 1950, long before the EU (formerly the EEC) ever existed.

European countries which are not EU members, such as Norway and Switzerland, remain signed up to the ECHR.

The result of the UK referendum will make no difference at all.


I didn't know that - thank you.
andy_foster
I'm still struggling to see how FPNs and PCNs can be compatible with Art 6.2 - Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

Obviously I am under absolutely no illusion that any court will ever hold that there has been a breach, as the breach is so widespread.
DancingDad
QUOTE (andy_foster @ Tue, 17 May 2016 - 11:03) *
I'm still struggling to see how FPNs and PCNs can be compatible with Art 6.2 - Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

Obviously I am under absolutely no illusion that any court will ever hold that there has been a breach, as the breach is so widespread.


My understanding, possibly wrong, is that both FPNs and PCNs simply give an opportunity to accept the penalty or take it to court or challenge depending on which.
Neither establishes guilt, the recipient can accept or disagree.
There are risks, costs, added fines/points/penalties for disagreeing but as you say, can never see any court accepting this as a breach.

Owner liability with PCNs comes the closest to a breach IMO, where the owner (RK) is liable for the penalty whether or not they were the "guilty" party.
Once a PCN is served, the process can take over and leave people at significant financial risk, innocent, guilty, doesn't matter.
andy_foster
QUOTE (DancingDad @ Tue, 17 May 2016 - 11:43) *
My understanding, possibly wrong, is that both FPNs and PCNs simply give an opportunity to accept the penalty or take it to court or challenge depending on which.


In both cases, if the lucky recipient does nothing, he is punished for the offence (albeit that in the case of a PCN, it is the owner that is punished). Whilst there is an opportunity to request a court hearing, that is effectively giving a presumed guilty party a chance to prove his innocence (albeit that at trial the presumption of innocence applies).

QUOTE
Neither establishes guilt, the recipient can accept or disagree.


Are you saying that Art 6.2 only applies to an abstract finding of guilt, and not to punishment? Or are you saying that as long as there is an option for a court hearing to protest his innocence, 'default convict' notices are compatible with the presumption of innocence?

DancingDad
I think that FPNs are a different case to PCNs and realistically, are only an added step in the system. A bribe if you want to avoid the courts.
Pls correct if I am wrong but assuming recipient ignores, FPN to summons to court.
The FPN does not bypass a lawful hearing and establishment of guilt as per 6.2 ".....until proved guilty according to law." And things like Statutory Declarations provide a safety net should someone not get required notices.

Safer ground IMO on a breach with PCNs where the Notice to Owner establishes liability on the "Owner" and basically doesn't give a toss over innocence or guilt.

Punishment and guilt, dunno as an abstract?
Certainly one would like the system not to punish without guilt and it could be taken that doing so breaches the article.
But with the system allowing the option for a court(or adjudication) hearing, I cannot see any court deciding it was a significant breach that must be closed.
Without the option, different matter, to me that would be an absolute breach.
andy_foster
QUOTE (DancingDad @ Tue, 17 May 2016 - 12:35) *
I think that FPNs are a different case to PCNs and realistically, are only an added step in the system. A bribe if you want to avoid the courts.
Pls correct if I am wrong but assuming recipient ignores, FPN to summons to court.
The FPN does not bypass a lawful hearing and establishment of guilt as per 6.2 ".....until proved guilty according to law." And things like Statutory Declarations provide a safety net should someone not get required notices.


If an FPN is not paid within the suspended enforcement period, it can be increased by 50% and registered by the court as a fine. No hearing involved. No evidence. No finding of guilt.
The Rookie
I agree, noting that if its a CoFP or a 'provisional' FPN that isn't the case.
andy_foster
QUOTE (The Rookie @ Tue, 17 May 2016 - 14:07) *
I agree, noting that if its a CoFP or a 'provisional' FPN that isn't the case.


Neither of which are FPNs, but the distinction is lost on many.

For the sake of pedantry, it might also be appropriate to point out that my comments concerning FPNs apply to FPNs for motoring offences, under s. 54 RTOA 1988 (which are the 'on-topic' FPNs we deal with), but not to some FPNs for other offences, where the notices are nothing more than an offer to discharge liability and require no action if the accused does not wish to accept the offer.
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