For those who do not like long posts, I was in court on Thursday the 28 Oct for an s172 only. I won. No need to read further.


Chapter one

Once upon a time,
In a land north of Brumstromia, yet south of that strange and lawless place where men wear skirts. There lies beset beneath dark satanic mills and the witches’ covens of Pendle Hill the lost land of Mancunia. On a warm October afternoon cjm99 was summonsed to appear before the Great Wizard of Oz for the meeting out of summary justice.
I duly arrived at 1-30 and stood in the long waiting room (excuse the pun) rubbing shoulders with felons and riffraff, but along with those police and CPS persons, there were three stalwarts of Pepipoo, DW190, Dave99 and AR. We chatted for a while, until the court resumed, but were told of a continuation of a morning case and the consequential delay.

At 2-30, a vision of great beauty, a fairy princess approached me and explained she was a 'Legal adviser' (an itinerant barrister standing in for a Clerk of court) asked me to enter the inner sanctum for a 'cosy chat'. Knowing the format for these, I insisted that the Naughty Boyz also came in to watch the full spectacle of the legal process. Reluctantly, the fairy princess agreed, so in we went. To my surprise, the great wizard (for she was wise and of mature years) was already in. To her right was 'Tin man' who by a quirk of misfortune had no heart and had lost half his brain in a lobotomy operation which had gone wrong. On her left was, no, not Judy Garland, but a younger Minnie Caldwell late of Coronation St.. The fairy princess took her podium seat, and then! Horror of horrors! I spotted the Wicked Witch of the North. Dressed all in black, her ample bosoms rising and falling in strict time, just waiting for her next victim.
The Fairy princess spoke. Asked my name, address and DOB. I responded. "You have previously entered a plea of not guilty, do you wish to continue with that?" I looked at the Wicked witch, my blood was draining from my face. Then I remembered, I looked down, and could clearly see that I was still on the yellow brick road, and must be safe. "Yes I blurted".
The princess told me that a prosecution witness was not here. I had asked for her attendance by letter last January, but at the aborted hearing in June said I no longer required her. And in contrast to Gleeson, I do believe that the prosecution should be given a sporting chance. The princess then started to explain sec 172 to me, Told me that if I could show "due diligence" that was a defence. I replied. Sec 172 actually says "reasonable diligence" which is a much lower test. The princess was not happy, and the wicked witch turned and glared. I looked down, yes, still on the yellow brick road, but Dorothy's shoes turned red when she was totally out of danger. Bugger, they were still black. The proceedings were halted, the princess read aloud section 172. Do you understand the charge? " A little" I said, but there are some words, 'Owner', 'Registered keeper', 'Keeper', 'driver' and 'In charge', which seem to have variable meanings in RTA and RTOA. I would like a working definition so that the goal posts don't move during the trial. The Princess asked the wizard, Tin man and Minnie to retire. She would not be drawn on definitions, so I said. As I have been charged as "person other than keeper", the diligence defence does not apply, and I am putting the Wicked witch on notice to prove to a criminal standard "in power to give" and read from Mahindra. Neither the princess nor the Wicked witch were amused this time! The Witch then asked for full copies of Mahindra, I of course was able to oblige. We were invited to leave whilst they both read the full judgement.

Chapter two.

The Naughty Boyz had a chat outside for ten minutes, we agreed that the Wicked Witch was caught cold with this one! We then resumed, and the Wizard returned.
The wicked Witch rose and started her presentation. " Pursuant to a speeding offence the RK of vehicle etc etc ..... and Mr CJM99 was identified by his wife as the driver. A request for and on behalf of CoP was served on CJM99 and I have a witness statement"
I interrupted. "objection", The wicked Witch froze. It was as if she was an automaton and had just had a power failure.
I continued "The witness statement that my friend wishes to put before the court, purports to be compliant with Sec9 CJAct 1967 and Mags Court Rules (70), it is compliant with neither... Whilst I am not clear on the degree of discretion in the Mags Rules, S9 has gained Royal assent, and is binding on all courts including their Lordships house, Judicial Notice must be taken". So I will concentrate on this only. The Princess was passive, stopped the proceedings to read the whole of sec 9. I offered copies to all, I had highlighted two passages in red


(1) In any criminal proceedings, other than committal proceedings, a written statement by any person shall, if such of the conditions mentioned in the next following subsection as are applicable are satisfied, be admissible as evidence to the like extent as oral evidence to the like effect by that person.
.----------------------------------------------------------------------------------

© if it refers to any other document as an exhibit, the copy served on any other party to the proceedings under paragraph © of the last foregoing subsection shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party on whom it is served to inspect that document or a copy thereof.



The Wicked Witch was now alerted to where we were going, and smoke was exuding from both ears!
Princess then invited me to expand on my objection. I read the highlights, and expanded on the requirement. Concluding with, "should the wizard wish to proceed by way of voir dire, trial within a trial, I would gladly be sworn. But, the mechanics of the magistrate’s court would ensure that the summons bundle served on the defence is identical to that before your learned clerk.
The Princess frantically flicked through her bundle, and with facial gesture only which the wizard could not see indicated to the Wicked Witch she did not have it. Yes, I thought, looked down, black shoes! Oh! Bugger. Something must be wrong!!!
Princess then explained to the Wizard that 'shall be appended' was not 'must be appended' and they had discretion!! I was incensed,
I was still on the yellow brick road, but my world was becoming pear shaped. At last she finished and I rose, " I have to take issue with your learned clerk’s interpretation, for it is at odds with the Honourable Mr Justice Moses. I read his conclusions, and his words "should be appended". I stated that at the heart of 'right to fair trial' guaranteed in Article 6 a defendant must be given the opportunity to examine statements in conjunction with exhibits they intend to lead. The Wicked witch interjected she had been ambushed and that I must have seen the NIP/s172 when it was served etc. But by now the fairy princess was coming round, I looked down, a red glow came back from my shoes, it was the reflection of the witch’s eyes, she was fuming. But offered to go and take instructions as to whether to continue with the case. She and the Wizards entourage withdrew.
DW190 had a long chat with the fairy princess about how they had met before perhaps. Eventually the witch returned, and indicated that she was pulling the case. She was furious, I think she could read DW190's mind, and new that he had not yet put the fairy princess's clothes back on!. DW190 said to me don't forget costs. At which the wicked witch snapped, despite DW190 being well inside the yellow brick road, accused DW190 of contempt of court, the spell was only broken by the princess returning with the Wizard, who promptly dismissed the case. I asked for costs including my wasted day in June. I have to write in.


The moral of this story, 'If you must speed, don't fill in the NIP. Send them a R2S letter, and give them enough rope to hang themselves" Read Witness statements at least twenty times!

I bet you play a very nice game of chess !

It's a pleasure to read them getting caught at their own game .

How many millions of us just give in ? 3 million.. That isn't right..


the only thing I am not clear on , did u want your evil way with the fairy princess or the wicked witch, or both ?


rgds
Bill

Bill

The wicked witch could frighten a police horse.

She didn't bloody frighten me.

In fact I spoke to in the lift on the way to the courtroom.

I dont think I could elaberate on your story Chris other than to say put this at the bottom.

CJM99 Copyright © 2004

All the best and watch the skies tomorrow you may see her again.

She lost the morning case as well so the Crown had a loss making day.

Chris

All I can say is 'epic tale' and even better result!
Every one of those many hours you have spent researching must now seem very sweet.

I have however noticed a dangerous malady which appears to have spread countrywide
Naughty boys appear to be irrationally drawn to women in black flowing robes. Bath, Salisbury, Bristol, Cardiff I could go on yes we have all been guilty!

Could this be a new Court/CPS tactic to disrupt our thought processes? How do we counter?

Off to ponder my next appearance in a darkened room

Absolutely splendid Chris !

great story Chris - you couldnt make it up though could you

The Tin Man - lol I thought he was going to fall asleep, looked like he had absolutely no interest in what was going on.

These prostitutors really do my head in when you try and get one up on them - come out crying ambush ("well I didnt know about this, I really cant comment on it - it is usual practice to warn the other party beforehand etc. etc") and when you did the s9 thing she checked her bundle and surprise surprise it was compliant - "well it is in my bundle, I dont know why Mr CJM hasnt received it, I dont open his post..." - almost accusing you of lying! The one I had did a similar thing if you remember when I was arguing the video disclosure - he specifically said it was unused evidence then came out with "it doesnt prejudice the case anyway, it is only short and doesnt really show anything" - I think the wicked witch used those same words about the lack of s172 attached to your s9 not "prejudicing the case" too, must be a standard reply to try and wriggle out of a problem!

Hi Chris,

That’s a cracking tale.

It’s a good thing that they “enemy” have such a good sense of humour.

I think the clerk should be credited for the way she jumped straight in when the prostitutor cried Ambush.

The clerks words which should be noted by others were:

"The defendant is Not under any obligation to disclose his defence before trial"

Hi Chris,

Nothing really to add to your story, other than to say well done. I think the CPS had a bit of a cheek shouting 'ambush', as it was their cock-up in the first place!

FF

The biggest shock of the whole process was :-



The clerk said that this was not "must be accompanied", and was discretional. Thank goodness, I new I had a backstop of basic disclosure, or I could have been thrown by this. But, as I have been banging on about s9's for months, I was determined to win on this alone.

" Thou shall't not commit adultery". Well now, it seems to be optional, I'll tell the wife.

Easy answer to that is to not get married in the first place LOL!

I think this caused the biggest eyebrow raising at the back of the court too Chris! The OED defines "shall" as "expressing a strong assertion or command rather than a wish" and "expressing a command or duty" - doesnt really convey an impression of discretion to me!

Dave99

Yes, We were in a period of Fairy princess and Wicked witch 'bonding' at that time!

Until the Princess thought she had a Prince Charming sat at the back, then all seemed to change.

The mention of ECHR and Fair Trial also semed to move the goal posts a little.

"Shall" means "will" means "must" means mandatory.

Concise Oxford Dictionary 8th Edition 1991:
[list] go to the party)
Expressing a strong assertion or a command rather than a wish, see "will"
Expressing a command or duty {thou shalt not speed, they shall obey)
Expressing an inquiry, esp. to avoind the form of a request (cf. "will") (shall you go to France?)[list]

CJM99, What an excellent story, Could you possibly post some details as regards what paprework you received, and what your replys were along with a simplified version of events.

Many thanks

CJM99

Great result, and by the sounds of it, a great day out.

The correct uses of will and shall can get complicated - see here.

But for the purposes of the quote, "shall", when used in the third person future, is more emphatic than "will".

He will see me one day. (Intention.)
He shall see me tomorrow. (Promise.)

Lance,

It appears from your link that the judge must have been from the wrong side of the north south divide'

Lance, "The King’s English" may apply to some, but can you find a link to The Queen's?

Chris,

I would like to add my congratulation to those of the others - nice one.

Andy

Congratulations, your persistence and eloquence is admirable, as is the (apparent) integrity of the clerk! I rather amateurishly fought and lost along similar lines (defective S9) but it pleases me to know that I have been avenged

What a fairy-tale! Regards, ad

Congratulations, Chris,
It is so encouraging to see that when we really dig in, we often defeat the system. It is a good read and one that will help others, I am sure. Sorry that I could not be with you.

Well done.

Robin

well done, another victory
its a bit late i know

Knew there was somthing else in my Trial that was niggling at my brain when the PF presented to the court a the carbon copy of my COFP, and this has brought it back. I never got a copy of this from the PF when requesting evidence.

Does this apply in Scotland and does it apply to the COFP copy being shown to the witnesses and magistrate