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Everything posted by milneg

  1. Wrong again. A penalty for not paying the congestion charge is a penalty for NOT PAYING. You are confusing an original liability to pay with a penalty for not paying a liability. This is basic stuff.
  2. So we have a penalty (which it undoubtedly is) without an offence? It gets worse.
  3. The moon causes the tides. I wonder why no-one worked that out for thousands of years. It's sort of obvious.
  4. The law does make it clear. It allows two options; one involves violating a fundamental legal right, the other does not. On the basis of the authority I have cited, the courts will not allow the first option if the second is available. When you say that 'there is no violation of anyone's legal rights', do you accept that you are asserting (1) that a person (the registered keeper) can be held liable for an offence he did not commit and (2) that it is fundamental legal right not to be punished for an offence you did not commit? Over to you.
  5. No (again), it is how the statute and any regulations are interpreted by the courts that matter. How the courts do this is determined by case law. That is the 'law' that I am referring to; the case law that I cited. I suggest that we just agree to disagree; I am not running a law course for your benefit. Others can make their own minds up on the basis of what I have said - which is, essentially, that the courts will not allow a person's fundamental legal rights to be violated if this can be avoided. s.163(2)(b) is that means in this case so it must be used. It cannot be argued 'We didn't want to not violate fundamental legal rights so we just adopted the easy expedient of not having any regulations at all.'
  6. s.1 Road Traffic Offenders Act 1988 says that a NIP must be issued within 14 days of the offence. It specifically says that you cannot be convicted unless you are issued with a NIP within 14 days. Since they know this, their conduct amounts to fraud under s.1 Fraud Act 2006 (and misconduct in public office).
  7. No, the law simply asks whether there is no alternative; it is not concerned with how that alternative is carried out (by means of regulations or otherwise). You are trying to introduce a requirement that is not there. The authority I cited says that the conclusion must be unavoidable ('irresistible'); this is not the case if there is some other means by which transgressing the principle of legality can be avoided. If some other means is possible then that other possible means must be used; it effectively imposes an obligation to introduce regulations that allow the fundamental legal right not to be transgressed. The authority can avoid transgressing the principle of legality, therefore it must do so.
  8. It is legal requirement that a notice of intended prosecution has to specify the place of the offence (s.1© Road Traffic Offenders Act 1988). If this is not done within 14 days then you cannot be prosecuted (i.e. they cannot re-issue a corrected notice after the 14 day period). The place of the alleged offence has to be exact enough to allow you to respond to the allegation. For instance, if the place is identified as 'London Road, x town' and 'London Road' is 5 miles long then it may be that you cannot respond to the allegation. You might be able to say that you were speeding at x point on the London Road but not at y point on the same road - so which point is it? In law, a large area or stretch of road cannot be a 'place' in such circumstances. See The Judicial Dictionary, Sweet and Maxwell, London, 1908, p. 1486 et seq. (archive.org/stream/judicialdiction05strogoog#page/n99/mode/2up), where it was stated that Epsom Downs would not be a 'place' for the purposes of the Betting Act 1853 (Powell v. Kempton Park Co. [1899] AC 162). This is a House of Lords decision and therefore binding on all courts. By extension, the word 'place' in s.1 Road Traffic Offenders Act 1988 cannot be an unspecific length of road; it has to be an exact location - a point on the road. Exactly this happened to me; the notice said 'London Road', which is about 7 miles long - but I did not argue the point because I did not want the hassle. After all, the universe is a 'place' in one sense but it would not be acceptable for a notice to allege that you were speeding 'somewhere in the universe'. PS - Check her previous convictions as well.
  9. 1. There is a difference between making representations and adjudication.* (Do you think they are the same thing?) The PCN does not explain adjudication therefore it does not comply with the requirement in 12(3)(h). Simple. The issue of making representations is a red herring in this context. *You make representations TO TFL whereas adjudication involves a third party adjudicating BETWEEN you and TFL 2. If the registered keeper did not commit the offence then liability can only be imposed on the him if it CANNOT be imposed on the person who did commit the offence. The section allows liability to be imposed on the person who did commit the offence (by regulations) and therefore it cannot be imposed on the registered keeper in such circumstances. The question is 'Does the law allow no alternative to making the registered keeper liable if he did not commit the offence?' The answer is 'No'. 3. The law does not allow any time limit that contravenes the mayor's strategy, since the scheme has to comply with the strategy. Therefore the answer to your question is that the matter is covered indirectly.
  10. Hi, I received a PCN the other day for failing to pay the London Congestion Charge in time (within 24 hours). I decided to look into the legality of the whole scheme and have come to the conclusion (1) that the PCN issued to me is void (of no legal effect) and (2) that elements of the scheme are unlawful and, in fact, void. This means that many, if not all, congestion charge fines will have to be refunded. My logic is as follows, but I will be grateful for comments (I might have got it wrong): 1. With regard to the PCN itself, the Road User Charging (Enforcement and Adjudication) (London) Regulations 2001, 'Penalty charge notices', 12(3)(h) states that a PCN must state 'the effect of regulation 16'. Regulation 16 covers adjudication by an adjudicator. The PCN issued to me does not state the effect of regulation 16, as required by law, and it us therefore void. In other words, in law the document sent to me is not a PCN at all (it can't be because it doesn't fulfil the requirements for a valid PCN as stated in the regulations). If other PCNs are the same (do not explain the effect of regulation 16) then any fines paid on the basis of them were paid on the basis of an unlawful demand (being the PCN in question). ================================================== 2. With regard to the legality of the overall scheme, parliament is presumed to legislate in accordance with the principle of legality. In short, this means that, while Parliament can remove a fundamental legal right, it is presumed not to intend to do so unless it says so in a statute (Act of Parliament) in express terms (clear words) which allow no other interpretation. Of course, while Parliament can expressly remove a fundamental legal right in such a way (by express words), it is certain that no other body can do so (by means of secondary legislation for example) without the express authority of Parliament (and, even then, I doubt that the courts would allow such a delegation of power). This has been stated by courts at the highest level. For example, Lord Steyn in Secretary of State for the Home Department, Ex Parte Pierson, R. v. [1997] UKHL 37 said: 'For at least a century it has been "thought to be in the highest degree improbable that Parliament would depart from the general system of law without expressing its intention with irresistible clearness . . .": see the 4th ed. of Maxwell on the Interpretation of Statutes, (1905) at 121, and the 12th ed. of the same book, (1969), at 116. The idea is even older. In 1855 Sir John Romilly observed that ". . . the general words of the Act are not to be so construed as to alter the previous policy of the law, unless no sense or meaning can be applied to those words consistently with the intention of preserving the existing policy untouched . . .": Minet v. Leman (1855) 20 Beav. 269, at 278. This observation has been applied in decisions of high authority: National Assistance Board v. Wilkinson [1952] 2 All E.R. 255, at 259, per Lord Goddard, C.J.; Mixnam's Properties Ltd. v. Chertsey U.D.C. [1963] 2 All E.R. 787, at 798, per Diplock L.J. In his Introduction to the Study of the Law of the Constitution; 10th ed., London, (1968), Dicey explained the context in which Parliament legislates as follows (at 414): "By every path we come round to the same conclusion, that Parliamentary sovereignty has favoured the rule of law, and that the supremacy of the law of the land both calls forth the exertion of Parliamentary sovereignty, and leads to its being exercised in a spirit of legality."' just about the most fundamental of all legal rights is a person's right not to be punished for a crime/offence that he did not commit (Can you see where I am heading with this one?). Of course, Parliament, being supreme, can pass a law which punishes a person for a crime/offence that he did not commit, BUT IT CAN ONLY DO SO BY EXPRESS WORDS IN A STATUTE WORDS WHICH ALLOW NO OTHER INTERPRETATION. Apologies, for the use of capitals. PCNs are issued to the registered keeper of the vehicle on the basis that the registered keeper is liable in law to pay it (with certain exceptions) and, in most cases, the registered keeper will be the person who was driving the relevant vehicle at the relevant time. But does the law make the registered keeper liable, in accordance with the principle of legality explained above, if he was not driving the relevant vehicle at the relevant time - and, in fact, may not have given his permission for the car to be driven in the congestion charge zone? To comply with the principle of legality in such a case, the relevant Act of Parliament MUST make the registered keeper liable WITH NO POSSIBILITY THAT ANY OTHER PERSON (THE ACTUAL OFFENDER) COULD BE HELD LIABLE. This is because, as quoted above, if an altenative interpretation of the words in the statute in accordance with the principle of legality is possible, then that alternative interpretation MUST be adopted. In the context of the congestion charge, therefore, it is clear that, where the registered keeper was not actually driving the relevant vehicle at the relevant time (or is otherwise repsonsible), the registered keeper can only be made liable if the words of the relevant Act of Parliament make him liable TO THE EXCLUSION OF ANYONE ELSE. In other words, the registered keeper can only be made liable where he is the only person who can be made liable (under the Act of Parliament). Does the Act of Parliament actually do this (make the registered keeper liable to the exclusion of anyone else)? No, s.163(2) Transport Act 2000 states: '(2) Charges imposed in respect of any motor vehicle by a charging scheme under this Part shall be paid — (a) by the registered keeper of the motor vehicle, or (b) in circumstances specified in regulations made by the appropriate national authority, by such person as is so specified.' Now this is quite clear. s.163 allows some person other than the registered keeper to be held liable for a charge. It follows that where the registered keeper did not commit the 'offence' (and it is an offence, since it incurs a penalty), he cannot be held liable (in accordance with the principle of legality as explained above) because it is possible to hold someone else liable (the person who committed the offence) and so this must be done. In short, the registered keeper cannot he held liable for an offence he did not commit because the Act does not expressly say he must be. ================================================== 3. Further, it appears to me the requirement to pay the charge within 24 hours is also unlawful. The Greater London Authority Act 1999, Schedule 23 (Scheme to conform with Mayor’s transport strategy), Section 5 states: 'A charging scheme must [note use of the word 'must] be in conformity with the Mayor’s transport strategy.' The Mayor’s Transport Strategy states (p. 37) that the strategy includes an objective to 'enhance the quality of life for all [note the use of the word 'all] Londoners', including 'improving journey experience' and 'improving road user satisfaction (drivers, pedestrians, cyclists)'. So the question is whether the requirement to pay the charge within 24 hours complies with these objectives. Does imposing a 24-hour time limit improve the 'journey experience' and the 'road user satisfaction' of ALL Londoners, including those who incur the penalty charge because they failed to pay the congestion charge within 24 hours? If not then the requirement fails to conform with the Mayor's transport strategy and so is unlawful under Sch. 23. Furthermore, the question has to be asked whether such a short time limit is either necessary or just. If the 24-hour time limit is not necessary for the purpose of collecting the original charge (as opposed to a penalty) then the requirement is merely an exercise in extortion. Can it be part of the Mayor's transport strategy to extort money from Londoners - and how does such extortion improve the 'journey experience' and the 'road user satisfaction' of ALL Londoners? Such an exercise in extrortion must, in any event, be ultra vires; that is, the Mayor has no legal power to extort money from people - it is beyond his lawful authority.
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