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  1. (Apologies, I can't seem to edit. The immediately preceding post was a reply to Old-CodJA. The one prior to that was to BazzaS. Apologies for any confusion)
  2. In brief: thanks for your *substantive* points, with which I have no difficulty and do not, I think, contradict what the reality of what I have said. Take care!
  3. "disingenuous". Right. You know you've crossed the line. And you know what you have to do.
  4. Apologies I didn't see this earlier. I will withdraw it if you or BazzS asks.
  5. Thanks, hope you slept well. Fair enough, taking your final request I'll briefly try to close off the rest, then let's try to move forward and focus on the OP. (If it makes you feel better mentioning the 5th amendment in every post, keep going, it was never part of my "case" as I said before. Nor was misquotes and quoting out of context...) (On the video substance (not 5th amendment label) - I think it useful in the UK generally, you disagree, I think we're pretty clear on that but let's adopt your position, but again you can keep mentioning it as you wish) On the CJPO I thought you might have specific law on different to the CJPO, and you thought I was raising it as a new point, and we were both wrong, so let's set that one aside, but again you can keep mentioning it. On the right to silence that is the substance of the videos, and you "reject" it, ok, let's take your case at its highest. I think from your current post that leaves only the without prejudice issue, and I think that is where we may be able to help the OP. So let's agree something. I'll try to avoid annoying you, and you try to avoid thinking I'm trying to annoy you. Please. So let's start with *why* WP exists. I think we can both agree that we get nowhere talking about its meaning, fine, so let's talk about where it might have a practical use for the OP: settlement. Let us start with earlier mention by someone (probably you, all credit) that an "final warning" administrative settlement in this context is truly an administrative settlement rather than the police version of a "final warning" criminal record - that it doesn't go to the Court OR to the police. That is fine and whatever will promote that I agree is a good result. Likewise any administrative informal/nonfinal warnings (no matter what the police treatment). Let us assume that we want to settle, and that they *seem* willing to settle if the price is right. Then some form of negotiation is feasible. We want to offer a figure that will be some % of the potential penalty - which might of course exceed 100%. (yes, it happens, great if you're on the right side of it, not so good otherwise). If we can settle, great, so well and good, fixed. But what if we don't? Let us even assume for the time being that no facts are in contention, so it's impossible for us to incriminate ourselves whether or not we tell them anything. It's just money, horsetrading. you offer that, I want a bit more, and so on. Let's just say we're so desperate to avoid Court we end up offering them 100% of the maximum penalty? They scent desperation and hold on. We offer 120%. There is no double-dealing, but unbeknownst to us, when our letter arrives a few days before Court, the negotiator on the other side has gone on holiday, or got married and distracted, or because of a new policy they now decide they actually want to prosecute everyone this month, or... Ok. We go to Court. The case is presented but let's say it's sort of marginal. We never knew that (they're the experts or think they are, but why would they tell us? Bluffing is all until the cards are all face up on the table). Then the advocate draws the Court's attention to your 120% offer. "Guilty" thinks the tribunal of fact. "Innocent people don't make open offers, not even 10% to say up yours, and such a huge one is decisive". Done deal. Alternative: actually the witness is off sick, or the prosecutor gets some of the evidence mixed up, or they can't find the file, or whatever. What evidence do they have left? Nothing really. Except the letter that just came in... same result. Now we come back to how we communicate with the other side. Can we honestly negotiate, with binding consequences upon agreement, without the Court being able to see into that negotiation whether or not agreed? Yes. That's why "without prejudice" exists. So people can negotiate freely with each other in confidence, in the certainty their good faith words can never come back to be used against them in Court. (remember we're not communicating material facts here so we can't even tip them off as to our case). And the Court, in its own interests, will try to protect such good faith efforts. Now. The jurisdiction *ought* to be able to able to cope with it. Whether or not the jurisdiction *does* cope with it is quite another matter, and if your practical expertise says otherwise, that's fine. So if you can tell the OP from personal experience on the other side of the courtroom that without prejudice communications will not be respected by you or by the Court, ok. Your *is* will trump my *ought*: but customary law always was alive and well and living in the provinces... Are we good?
  6. Many thanks. I think we're in violent agreement and I can't yet see why you can't see that. 1. on the 5th amendment, cutting and pasting all I ever said was "(if you don't like the references to the fifth amendmenticon etc, just substitute their English inspiration, the Habeas Corpus Act 1640, now sadly repealed)." I too find the videos grating, that's the point. I stated the English inspiration was repealed. I just wanted people to ignore the labels and go for the substance of what's in the videos. I apologise for having given an impression other than what I thought I had said. 2. I agree with you about the CJPO 1994. I always did. Again: what I said was "If I might hazard a guess your starting point will be ss34-38 CJPO 1994 and related case law but I actually hope I'm wrong on that so I can learn something!" Regrettably you have not *yet"* proved me wrong because that indeed was your starting point. I trust that was just because you thought I was arguing with you when in fact I was just hinting that I wanted something more. Now let's try again because I am genuinely interested. I still want to learn something which is precisely what I said to you) and I'm hoping I can learn it from you. Remember the context was right to silence. So this time I won't mention anything specific because frankly you and I appear to confuse each other (apologies for any miscommunications on my part!). So: what do you have on the right to silence in this context? Is it completely untrammelled or gone or something in between? (nice one on Bennion's, but it could have been the whole stack of Halsbury's - fortunately the one and only time I ended up beneath a stack it wasn't in a law library!)
  7. "straw man", "fantasies", "tenuous", "unreliable"! A bit defensive? Fine, please understand I'm not trying to criticise you and I did not mean any offence. I accept that in your position you don't need to use WP or WPSATC, and don't see Courts recusing themselves or retaliating against misconduct. On your own case you don't understand why others do. I think that one ends there. In the context of right to silence I think you've mischaracterised my position but let's leave that. Your point is more interesting: you say " a tenuous hold on statute or case law applicable currently in E&W". Ok let's look at substance. If I might hazard a guess your starting point will be ss34-38 CJPO 1994 and related case law but I actually hope I'm wrong on that so I can learn something! So please explain.
  8. Yes I am confusing "final warning" with the criminal offence final warning. Thank you for your correction. I also agree a non-formal warning (except perhaps a cannabis warning on which the Home Office seems to have a bet each way) does as you say appear on enhanced certificates - whether this is a criminal record or a pseudo-criminal record I guess we don't have to argue. The Home Office does however say even acquittals should be recorded against the alleged perp as a crime (which they sometimes describe as a "non sanction detection"), just not on the PNC. So what we say may be moot anyway...
  9. Fair enough. Then the Court would throw it out or recuse itself, award as much costs as they could think of against the prosecuting authority, and report any prosecuting solicitor or barrister involved to their regulator for disciplinary action for professional misconduct. And if you were there and chose to argue the toss, you might just end up in the cells yourself as a contemner. Go on. Give in to your temptation. :-; As to "However, US law doesn't equate with UK law. The UK has no 5th Amendment." Quite right and I implicitly acknowledged this in what I said in that post about the repeal of habeas corpus etc. What's your point?
  10. A final warning is an offence held on a criminal record. Therefore if a final warning is all that is on offer, the "settlement" is illusory. Of course you're absolutely right. "Why you agree to a warning if you're not admitting liability? ". Indeed. Apologies for any misunderstanding. If however the defendant wishes not to have a criminal record, they have absolutely nothing to lose by going to Court. And equally nothing to lose by offering an administrative solution. What the TOC thinks is "clever" is utterly irrelevant. If you're facing a criminal record, there is NO incentive not to be clever" as it loses you nothing.
  11. . Yes. Clarification: and it also applies for when they apprehend someone inside their store. And for when I (or you) apprehend someone in a public place. Or when I (or you) apprehend someone in any store. Summary: s.24 is for police. s.24A is for everyone else. Interestingly, if security guards wrongly execute it, they might render themselves open to arrest by the police or anyone else, including their intended victim (not recommended, they're not renowned for their sense of humour).
  12. For anyone who still wants to spill their guts on facts, in open correspondence or otherwise, because it's right thing to do, etc, take a look at this "challenge" debate between a lawyer and a police officer. (if you don't like the references to the fifth amendment etc, just substitute their English inspiration, the Habeas Corpus Act 1640, now sadly repealed). The lawyer's view: The police's view: I'm grateful to another member of CAG who drew my attention to these some years ago.
  13. It shouldn't matter if there ARE proceedings of any kind or not. Because they're not open letters, the parties can communicate freely, notably for negotiating or making offers to each other, both sides secure in the knowledge that a judge will never see the documents in current or future proceedings. The traditional impression conveyed to the judge by OPEN settlement offers is "because they offered to settle rather than say in yer face let's go to trial, the party must be a bit worried about the strength of their position", the exception being to convey the attitude "Our position is obviously so unassailable that we don't mind being magnanimous". Same applies to both sides of course. (theoretically there's nothing to stop you pitching both types of offer in parallel, but maybe that's one for "don't try this at home").
  14. Ok, you might or might not be right. I'm not going to comment on substance. However to avoid the "bit smart and create extra paperwork" issue, there's nothing to stop you doing the same negotiation over the phone, starting with the precondition "are you authorised to hold a without prejudice conversation?". No extra paperwork. Just make sure you and they know you're recording it (as they probably will anyway, but then any extra paperwork is down to them). On the notes I've noticed comes up as a "tooltip" when "without prejudice" is mentioned, I won't agree or disagree but I would amplify one point in particular: when it says make sure that offers are made without admission of liability. I'd extend that to say "also don't make any admissions of fact that might be used against you in Court". It's completely superfluous in offers to settle (if you really want to disclose incriminating facts to torpedo yourself at trial you can do that in separate correspondence anyway); and any disclosed facts will only encourage prosecution and discourage settlement. What facts might be used against you? Your lawyer will know. If you're a litigant in person, you may not know which is which because you may not know the ingredients of the offence and the applicable case law to the offence and the current law of evidence which changes continuously. So keep it simple. Enough said. (if you truly want to educate yourself semi-properly to appreciate what facts are relevant: by all means go for it, start by spending a few hours/days doing research in a law library, just ask permission from your local university with a law faculty that has *practitioner* textbooks eg Archbold and databases - say Halsbury's Laws on LexisNexis is a good starting point before you go to the practitioner texts. Ask for as much help as you need to get up to speed with how to search stuff, law librarians are pretty helpful) Of course this is all just words, not legal advice, so if you want to disagree with anything said above, fine, I'm not bovvered
  15. This would be kind of funny if it wasn't so impressively grotesque. It was Aerospace v Thames that totally and utterly screwed RLP's in the reported Oxford case last year. Everything was admitted and the judge threw out the retailer's claim anyway, because of the same authority, which RLP until then had been swearing blind didn't matter. The security staff claimed many hours of time, on which the judge apparently was sceptical as it didn't appear to tally with their own CCTV evidence. But that didn't matter anyway, because the judge ruled they can't claim security staff costs no matter what. Why? *Because* they're security staff and it's what they do as part of the business, therefore there is no disruption to the business. Now if the tellers had gone postal, abandoned their tills and come after you in a pack, *that* may have counted as disruption and you'd have to cough up say half an hour of minimum wages... Apparently there was a great deal of witness evidence from senior people, all of which apparently was disbelieved or discounted. Why? Largely because, even where relevant, it became apparent that "witness statement evidence demonstrating... significant disruption to their client's business" had indeed "been prepared" - but evidently not by anyone who'd talked to the witnesses. One can only hope that RLP had not "prepared" it. The witness evidence was largely for support where they didn't have solid evidence of time lost etc, so they also prepared estimates that they swore were genuine. This too seemed a bit fanciful. But even then it didn't matter if they were genuine or otherwise. Why? Because the judge ruled that, under Thames, estimates just don't cut it. So they were thrown out as well. Then there was the value of the items. Those were all either dropped or thrown out... so even on those, which you'd think RLP would have a ghost of a chance on the civil burden of proof, they somehow failed anyway. You can almost feel sorry for RLP's client. In the end it seems the judge ruled that the total amounts the defendants would have to cough up was... zero. RLP's client asked for permission to appeal. And then... didn't appeal. Well, you have to admire RLP's ... courage, in citing in their favour the very case that screw their clients over in court. So they've learned something. Perhaps not the right lesson. I wonder how many of their clients realise they're being set up for more court humiliation?
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