Notice of Removal of Implied Right of Access - EU Law perspective

[wun hung lo]

p3t3r wrote:

 

 

The Notice Of Removal Of Implied Right Of Access - this is a perfectly valid notice, - my opinion of this is backed up by the ruling from Judge Pugh which is shown earlier in this thread.

The notice is akin to 'No Cold Callers' notices which are supplied by various police forces, councils etc.

 

In relation to bailiffs, the notice is not considered to be valid. Firstly, there is no implied right of access for a bailiff since it is an explicit right. The bailiff has the right to attend the property and as such ignore the notices.

 

IMPORTANT: Anyone relying on this notice to get rid of the bailiff is more likely to suffer financially since they are presumably under the illusion that such a notice would simply get rid of the bailiff. In this instance, the notice is absolutely useless because the bailiff does not have an implied right whatsoever, the bailiff has an explicit right - which is backed up by UK legislation which affords such right to the bailiff. Again, this is backed up by Judge Pugh.

 

So, whilst the notices are akin to 'no cold callers' notices and apply to the vast majority of people, the notices do not apply to people who have a legal right to attend your home. The bailiff has a legal right in UK law to attend a debtors home.

 

The reliance on such notices by individuals can lead to a dangerous scenario since the individual is under the false illusion purported by FMOTL that the notices are valid. Again, to put it simply, the notices are not valid to anyone who has a legal right to attend a home - and this includes bailiffs who are given the legal right to attend a home.

 

Now, turning to a possibility as to how the notice is valid against bailiffs. EU law, ECHR, human rights... Lets take an example of council tax. If a debtor can not pay council tax, then their ability to pay should be assessed by a court. My opinion: If the person does not have an ability to pay, then allowances should be made by the court. In no circumstance should a liability order be granted on a person who does not have an ability to pay their council tax since as this is perverse! There is absolutely no point in instructing bailiffs to attend a debtors home and therefore significantly increase the debt by adding on bailiff fees.

However, in the case of a debtor who can afford to pay but does not pay, then bailiffs should attend. IMO, bailiffs should be used as a last resort against the debtor who refuses to pay where all other possibilities have been exhausted such as deductions from benefits, salary deductions etc.

 

There are IMO various EU laws which would help with the validity of the Notice Of Removal Of Implied Right Of Access.

Firstly, the right to a fair trial. There is absolutely no fair trial in the scenario of council tax where liability orders are processed almost automatically, 'rubber stamped' by the Judges. This goes against ECHR article 6, the right to a fair trial.

 

If the debtor has not had a right to a fair trial as defined by ECHR article 6, then the bailiff should be informed of this in conjunction with ECHR article 8, the right of respect for his home, family etc.

 

The debtor should make their case known to the bailiff and the bailiffs client.

 

If the bailiff does not leave the property after being informed of ECHR article 6 and article 8, then it could be argued that the bailiff is in violation of those applicable laws. This is my opinion and until someone actually tests the legality of this in a court, then it is just that, an opinion.

 

A (BBC?) report which can be seen from one of my links in this thread from a few years ago states that the use of bailiffs should decrease since the human rights act. Unfortunately, I feel the reverse has happened in the fact that liability orders are rubber stamped and as such bailiff use has increased rather than decreased.

 

Again,I reiterate that use of such notices are ineffective against bailiffs and other people who have a legal right under UK legislation to attend the home of a debtor. However, as Judge Pugh has outlined, the notices are valid toward those people who do not have a legal right to be at the property.

 

Usage of such notices used in conjunction with that of various EU laws and human rights should IMHO prevent the bailiff from attending the property until such time that a FAIR TRIAL (article 6 ECHR) has occurred. The debtor should then escalate their case using ECHR and EU law in order to provide remedy.

 

Summary: Notice of implied right of access is perfectly valid, but not valid against people (bailiffs) who have an explicit legal right to attend. However, such right should be examined under EU law since I feel that more often than not, article 6 has been violated (fair trial) which would then lead to article 8 violated.

 

EU law / ECHR - This trumps UK law! Whilst people may have an explicit right under UK law to attend a debtors home, this is not necessarily so using EU law.

 

Discuss.

[p3t3r]

Above post relates to this thread: http://www.consumeractiongroup.co.uk/forum/showthread.php?406801-Notice-of-Removal-of-Implied-Right-of-Access......debtor-loses-in-court-and-ordered-to-pay-bailiff-companies-legal-costs/page10

 

I am unsure why 2 threads are needed and don't know why someone joined this site today purely to create a new thread from the original thread with their first post!

[renegadeimp]

Edited: it is very strange :/

[wun hung lo]

I am unsure why 2 threads are needed and don't know why someone joined this site today purely to create a new thread from the original thread with their first post!

 

To see if Dodgeball really does want to discuss it. It can't go 'off-topic' now!

[p3t3r]

wun hung lo, ok, lol, thanks for your explanation... but speaking about a thread title in conjunction with something else is surely not off topic!

 

anyway, i've pretty much said all i have to say about this in the other thread. would be interested in other peoples opinions though.

[mch1991]

Aren't liability orders issued after a hearing in a magistrates court? For example, debtor receives a summons in the post to appear on a certain date/time to defend the application for a liability order, if they fail to turn up, then the liability order is issued.

 

Therefore in the interests of the Human Rights Act 1998 and ECHR, the right to a fair trail and no punishment without law is effectively adhered to as the debtor has a chance to defend themselves in a court of law?

[p3t3r]

The debtor has a right to legal aid if they can not afford to pay a solicitor themselves.

 

My understanding of council tax cases is that they are completed within just a few minutes, no assessment as to the affordability of the debtor is taken into consideration, - most cases are simply 'rubber stamped'.

 

I have read a lot of information concerning this, some information is coming from 'dubious' site I have learnt of through CAG, but that site seems to suggest that liability orders for council tax are granted even before the debtor arrives in court.

 

ECHR - right of a fair trial - There is no fair trial in the case of council tax since there is no legal aid for this (despite ECHR stating otherwise).

[sequenci]

The debtor has a right to legal aid if they can not afford to pay a solicitor themselves.

 

For Council Tax issues? Are you sure about that?

[p3t3r]

For Council Tax issues? Are you sure about that?

 

yes... from what i've read, council tax is criminal and ECHR says a solicitor should be provided for criminal cases if the defendant can not afford a solicitor themselves.

 

ive also read legal aid is possible for ECHR cases.

 

i have been reading a lot, ill post links when i find them, but i seem to remember reading that one on CAB website

 

http://www.equalityhumanrights.com/sites/default/files/documents/humanrights/hrr_article_6.pdf that link shows solicitor should be provided for a fair trial.

[sequenci]

What's unfair about the liability order process exactly?

 

For what's worth, in over a decade in being involved with council tax disputes, I've never come across a single legal aid funded case.

[Ganymede]

yes... from what i've read, council tax is criminal and ECHR says a solicitor should be provided for criminal cases if the defendant can not afford a solicitor themselves.

 

ive also read legal aid is possible for ECHR cases.

 

i have been reading a lot, ill post links when i find them, but i seem to remember reading that one on CAB website

 

http://www.equalityhumanrights.com/sites/default/files/documents/humanrights/hrr_article_6.pdf that link shows solicitor should be provided for a fair trial.

 

Just because CTX hearings are in a magistrates court does not make them criminal. Mags can also sit in a civil capacity.

 

I don't think Legal Aid is available.

[Ganymede]

What's unfair about the liability order process exactly?

 

For what's worth, in over a decade in being involved with council tax disputes, I've never come across a single legal aid funded case.

 

There are reminders and a summons sent to a debtor. If they fail to dispute it or attend then judgment is effectively given in default.

 

Not sure why that's unfair either.

[sequenci]

Just because CTX hearings are in a magistrates court does not make them criminal. Mags can also sit in a civil capacity.

 

I don't think Legal Aid is available.

 

It's an offence not to pay but the enforcement isn't the same as for Magistrates' Court fines and suchlike. It's rather niche and peculiar.

 

I don't think Legal Aid is available either.

[p3t3r]

What's unfair about the liability order process exactly?

 

For what's worth, in over a decade in being involved with council tax disputes, I've never come across a single legal aid funded case.

 

Interesting! That seems to suggest that quite a lot of unfair trials over the last 10 years.

 

The unfairness is that there is no legal representation (which you say). ECHR right to a fair trial states that a solicitor should be appointed if the person can not afford a solicitor.

 

Other unfairness i believe is that there is no valid assessment of the persons ability to pay.

 

Some people refuse to pay council tax (despite them being able to do so) - Other people can simply not pay council tax. Therein lies the unfairness in the fact that the people who can not pay and are struggling to pay are then faced with bailiff action and their debt is significantly increased.

 

Other unfairness is that I have read that all council tax liability orders are rubber stamped. Also, that these liability orders are even made before the defendant arrives in court.

 

--- I am not sure about the last one because i've read a few sites, and one site is FMOTL which i learnt about from CAG. That site is flawed (IMHO), and it is quite possible that I read there that liability orders are made before the defendant arrives in court.

[Ganymede]

Liability orders are only "rubber stamped" in the sense that they are awarded in default if the debtor decides not to attend or dispute them.

 

The debtor is warned and then summonsed.

 

By your logic, legal aid should be available for speeding or drink driving etc offences.

[p3t3r]

Not my logic.

 

That is what i have read. Rights to a fair trial. A person is entitled to legal aid.

 

easily googleable

[Ganymede]

Legal aid is restricted and only available in very few cases these days.

 

CTX not being one of them.

[p3t3r]

Legal aid is restricted and only available in very few cases these days.

 

CTX not being one of them.

 

Yes.. Under UK legislation.

 

But ECHR dictates otherwise. As I said, easily googleable.

[sequenci]

Yes.. Under UK legislation.

 

But ECHR dictates otherwise. As I said, easily googleable.

 

Take it from me, you're barking up the wrong tree. I don't need Google. I've spent years studying EU law.

[honeybee13]

In case it helps, here's a link to the goverment website about legal aid.

 

https://www.gov.uk/legal-aid/overview

 

HB

[Ganymede]

And here is the leading legal case in relation to legal aid and the ECHR...

 

 

Airey v. Ireland, Judgment of October 9, 1979

 

Applying and expanding upon the right to access to the courts established in its decision in Golder, the Court found that Article 6 (1) also implies the right to free legal assistance in certain civil cases. The Court ruled that the right applies in civil cases when such assistance proves indispensable for effective access to the courts, either because legal representation is mandatory under domestic law or because of the complexity of the procedure or the type of case. Here, the applicant had requested free legal assistance to bring an action for judicial separation because of the unwillingness of her abusive spouse to sign a voluntary separation agreement. Relevant factors included the complexity of the procedure, the complexity of the issues of law, the need to establish facts through use of expert evidence and examination of witnesses, and the fact that the case concerned a marital dispute entailing emotional involvement incompatible with the level of objectivity required by advocacy in court. The Court noted, however, that the right to access to a court is not absolute and may be subject to legitimate restrictions. These include the imposition of financial contributions and that the case be well-founded and not vexatious or frivolous.

 

"26. . . . It would be erroneous to generalize the conclusion that the possibility to appear in person before the High Court does not provide Mrs. Airey with an effective right of access; that conclusion does not hold good for all cases concerning ‘civil rights and obligations' or for everyone involved therein. In certain eventualities, the possibility of appearing before a court in person, even without a lawyer's assistance, will meet the requirements of Article 6 (1); there may be occasions when such a possibility secures adequate access even to the High Court. Indeed, much must depend on the particular circumstances.

 

". . . whilst Article 6 (1) guarantees to litigants an effective right of access to the courts for the determination of their ‘civil rights and obligations,' it leaves to the state a free choice of the means to be used towards this end. The institution of a legal aid scheme-which Ireland now envisages in family law-constitutes one of those means but there are others such as, for example, a simplification of procedure. In any event, it is not the Court's function to indicate, let alone dictate, which measures should be taken; all that the Convention requires is that an individual should enjoy his effective right of access to the courts in conditions not at variance with Article 6 (1).

 

". . . Article 6 (1) may sometimes compel the state to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court either because legal representation is rendered compulsory, as is done by the domestic law of certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or of the case."

[Bailiff Advice]

The actual position is that a Liability Order will alway be issued unless the person named on the summons can prove that the debt is not owed. For the avoidance of doubt arrears of council tax is a civil debt.

 

If a bailiff is unable to 'take control of goods' and the debt is returned to the local authority then the LA may enforce the debt by way of attachment of earnings or attachment against benefits or by way of a charging order. Only after all of these enforcement functions have been attempted can the local authority consider a custodial sentence. It is at this stage ......and not before.....that the matter progresses to criminal proceedings and the debtor must be given legal assistance.

[p3t3r]

Take it from me, you're barking up the wrong tree. I don't need Google. I've spent years studying EU law.

 

If a person cannot afford legal representation, this can undermine their right to a fair trial, a right which is protected under Article 6 of the Human Rights Act. The right of access to a court must be meaningful and practical, not theoretical. The issue of legal aid provision is a continuous source of conflict between the Government and those who represent some of the most marginalised groups in society.

Quoted from: https://www.liberty-human-rights.org.uk/human-rights/justice-and-fair-trials/legal-aid

 

 

Right to a fair hearing

Article 6(1) of the ECHR guarantees that every individual shall be entitled to a fair hearing in the determination of their civil rights and obligations. Article 6 does not grant an automatic entitlement to legal aid in civil cases.

http://www.lawgazette.co.uk/law/legal-aid-exceptional-circumstances/70195.fullarticle

 

Council tax non payment is criminal, not civil. ???? I am assuming it is criminal, otherwise there would not be people sent to prison for non payment of their council tax?

 

Article 6 expressly provides for legal assistance in criminal matters

http://www.findlaw.co.uk/law/government/constitutional_law/fundamental_rights/500299.html

[Ganymede]

Quoted from: https://www.liberty-human-rights.org.uk/human-rights/justice-and-fair-trials/legal-aid

 

 

http://www.lawgazette.co.uk/law/legal-aid-exceptional-circumstances/70195.fullarticle

 

Council tax non payment is criminal, not civil. ???? I am assuming it is criminal, otherwise there would not be people sent to prison for non payment of their council tax?

 

 

http://www.findlaw.co.uk/law/government/constitutional_law/fundamental_rights/500299.html

 

From your own link...

 

"The ECHR has, however, made it clear that there is no absolute right to legal aid."

[p3t3r]

From your own link...

 

"The ECHR has, however, made it clear that there is no absolute right to legal aid."

- in civil cases

 

 

Remaining articles above describe there is possibly a right to legal aid.

 

If someone can not afford to pay council tax, then surely the court should recognise that fact and act accordingly instead of rubber stamping a liability order.

 

If someone who can afford to pay council tax and decide not to pay it, then i believe they should go to prison as it is unfair on the rest of society.

 

Non payment of council tax is criminal? I read that criminal cases require legal aid.