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poshtaxi
Can you advise how I would find out for sure if this is an abuse of the legal process? I could scan the letters etc received however I have quoted word for word from each letter to give the full information.
poshtaxi
Should I ask the clerk to the court if this is an abuse of process at the pre trial review?

Or Would it be better to ask the question at the trial itself or would it be too late at that point?
poshtaxi
Thanks for all the responces blush.gif

I have faxed the court to let them know of my availability for the trial.

I am still trying to ascertain if there is an abuse of the legal process in that Manchester Magistrates Court have sent my mother a fine for my offence (as she is the RK but filled out the S172 naming me as driver) even though I had been summonsed for the offence byTrafford Mag. Court.

Any informed views would still be appreciated.

I was thinking to just call the clerk to the court however, having seen Nick Freeman handle this kind of thing he leaves it until the trial. I imagine this is to earn his court fee primarily but I wonder too if it is best to do query the abuse of the legal process at the trial as the prosecution witnesses will all be present and it is too late to rectify the error?

I went back to the scene at the airport today to look at the signs. There are small 'no waiting' plaques on walls in the third channel only. The second channel (the one I was in) has 20mph signs on every pillar (16 of them) but none were 'no waiting' plaques. There is no way I would have seen the 'no waiting' plaques had I not been looking for them. Do these signs have to be a certain distance to comply with any regulations so the roadusers know the restrictions?
andy_foster
IIRC, applications to stay proceedings on the basis of an abuse of process require at least 14 days notice, although I don't know if this would necessarily apply to a blatent abuse.

Generally an FPN precludes the instigation of proceedings for at least 21 days, and whilst the FPN/fine has been imposed on your mother, not you, the principles of double jeopardy would seem to be appropriate.
poshtaxi
Thanks Andy. You seem to be the only well informed regular who bothers recently. Not sure why that is?

I understand your point regarding double jeapardy but does this apply as although it looks as though my mother has been issued with a fine in HER absence, the court will argue that was merely an error as my mother has nominated me as the driver and the courts should be dealing with me. Therefore, is this double jeopardy as the case has been heard once but the wrong person in the case wacko.gif
poshtaxi
My mother has received 'FINAL REMINDER/ FURTHER STEPS NOTICE' from Manchester Mag. Court.

The notice gives 14 days to pay to cancel further action which may include a clamping order on the vehicle or a distress warrant to the court bailiff.

Should I call the fines office and let them know there is an error or wait to present the shannanigans in Trafford court as I have been summonsed for the same offence as I was the driver?
Tinytim
Cricky, what a mess!
Personally I think you should get straight on to Manchester Mags and ask them what is going on. Why is your mother being fined for an offence that you are going to court for.
poshtaxi
She filled out the S172 naming me as the driver at the time of the offence. I was then given until the 21st December to return the confirmation form that I was the driver which I did (sent Special Delivery) and a notice was sent to my mother I believe by mistake.

It looks as if they have found my mother guilty of the offence in her absence instead of sending it to me. I then received a summons and a plea form for the offence which is the correct procedure. Clearly there is a cock up but I wonder whether the cock up constitutes an abuse of the legal process as the Court(s) have found one person guilty in her absence and are pursuing a fine and are trying to arrange a trial for me to give me a fine for the same case.

My mother lives in Portugal.
civil engineer
Your mother is RK but not the owner?

if this is the case then the car is not hers so how can they impound it?
poshtaxi
The bailiffs would probably clamp it then I'd have the hassle of explaining to a usually thick, fat, cloned doorman with the authority of a modern day highwayman (you've all seen the bailiff documentaries) that the car was'nt hers and that I was being persecuted for the same offence. He would just say 'dunno mate - just following these instructions form the court to remove goods etc'.

I want to tell the courts about the cock up but I am still waiting for informed views on here to advise if this is an abuse of process. If nobody knows then I've wondered whether to ask the clerk to the court but if I wait until the day of the trial (yet to be decided) I wonder my case would be thrown out on a technicality that I have been summonsed by one court (Trafford) when my mother has already been fined by Manchester Mag. for the offence.
Jase00
I bet this cock up would make good reading as a local news story wink.gif
cjm99
Having today received copies of the documents via the mail, I shall attempt to unreval some of the mysteries.



First though, you/mother must read sec 70 - 74 RTOA 1988. On receipt of the notice of registration of the FPT she should have responded by statutory declaration within 21 days. See below for exceptions.

Mother needs to initiate a refund. And, on the basis of Lovely Rita's sec 9, a 'wasted costs' order would seem in order.



QUOTE
(2) Where, on the application of a person who has received notice of the registration of a sum under section 71 of this Act for enforcement against him as a fine, it appears to the relevant court (which for this purpose may be composed of a single justice) that it was not reasonable to expect him to serve, within twenty-one days of the date on which he received the notice, a statutory declaration to the effect mentioned in section 72(2) or, as the case may be, 73(2) of this Act, the court may accept service of such a declaration by that person after that period has expired.

(3) A statutory declaration accepted under subsection (2) above shall be taken to have been served as required by section 72(1) or, as the case may be, section 73(1) of this Act.

(4) For the purposes of sections 72(1) and 73(1) of this Act, a statutory declaration shall be taken to be duly served on the clerk of the relevant court if it is delivered to him, left at his office, or sent in a registered letter or by the recorded delivery service addressed to him at his office.




My guess is, that 'Lovely Rita', having failed to serve the FPN in the prescribed manner, did not inhibit the 'registration' of it, whilst initiating alternative procedings via section 172.

The summons, refers to "Contrary to section 5(1) RTRA 1984 and scedule 2 RTOA 1988". They seek here to avoid a NIP prior to summons for an offence.

QUOTE ("RTOA 1988")


2.•(1) The requirement of section 1(1) of this Act does not apply in relation to an offence if, at the time of the offence or immediately after it, an accident occurs owing to the presence on a road of the vehicle in respect of which the offence was committed.

(2) The requirement of section 1(1) of this Act does not apply in relation to an offence in respect of which•
    (a) a fixed penalty notice (within the meaning of Part III of this Act) has been given or fixed under any provision of that Part, or
    ( B) a notice has been given under section 54(4) of this Act.




Clearly, sec 2 does not exempt the issue of a NIP either verbal or written (sec1 RTOA), as the FPN was not served.

This lack of service is confirmed in the Sec 9 statement from Lovely Rita.


If it were me, I would concentrate my defence on this alone.
poshtaxi
Went to Court Monday and pointed out to the clerk prior to the trial 2 concerns with the prosecutions case against me.

Number one was that my mother had been fined by Manchester Magistrates for the same offence and paid the fine. I highlighted that the fine was dated 21st December when in fact 'the system' knew I was in fact the driver
confirmed by S172 sent in addressed to me in October.

The second quabble was that as CJM99 Pointed out the summons refered to points in the RTOA 1988 which stated that the FPN had to be 'fixed or given' and as I drove off before the traffic warden finished writing the FPN it was never 'fixed or given'.

The clerk asked what the circumstances were as to why the FPN was never fixed or given and I explained that the traffic warden was being overtly zealous and I disputed I was 'waiting'. I pointed out that I was crawling at a snails pace with my foot on the brake of my automatic car. The Warden observing me some 80 metres away and was in no position to make that judgement. I objected to the issuing of the FPN and said I was not going to wait and accept it. The clerk said that was not an acceptable reason and it was'nt for me to decide whether I would accept the FPN.

The clerk indicated immediately that the fact that someone else had been fined by another court for the offence and paid the fine made it impossible for the trial to go ahead smile.gif as double jeopardy was in play biggrin.gif
A quick call from the clerk to the accounts office confirmed all this and the prosecution had no alternative but to offer no evidence. Case Withdrawn tongue.gif

Finally I pointed out that although I was pleased common sense had prevailed in that the case had been withdrawn, in fact I would like my money back as I had paid the fine purely because my mother did not want to challenge the legal process. The clerk said that it did'nt matter who paid the fine, only that the fine had been paid blink.gif . I said the fact that the wrong person has been fined for an offence 'the system' knew they were not responsible for due to me confirming I was the driver. She advised I was in a very good position to appeal based on the S172 addresed to me dated 2 months prior to the summons received by my mother and receive the refund B)
Wayne Pendle
QUOTE (Lance @ Thu, 1 Dec 2005 - 12:30) *
I know that certain parking tickets are not issued until they have actually hit the windscreen of the car, or been handed to the driver, and in these cases there is no requirement to wait until the ticket is so issued. I don't know whether this applies in this case, though.



This is an FPN, they do not need to attach to the windscreen or give to the driver with an FPN. With a PCN under decriminalised parking, (although still a fine), a PCN has to be attached to the vehicle, otherwise it is recorded as a driveaway and there is nothing they can do about it.
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