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ARTICLE BY ASHLEY MOTE MEP
Not for the first time this column is raising an issue of importance that has hardly been mentioned in the national media. In a nutshell it is this:
Every fixed penalty levied on us without due process of law is illegal.
Every penny extracted from us by fixed penalties by the government and its myriad of agencies should be returned.
It won’t be, of course.
We are talking about parking tickets, speeding tickets, late income tax returns, the lot.
Let me explain. The Bill of Rights of 1689 is the law of the land to this day. Clause 12 reads: "that all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void" In other words, all fixed penalties imposed by the government and their agencies are illegal and always have been. Anyone being threatened with a fixed penalty must be convicted of an offence in a court of law first.
So the government is in a real fix. It is trying desperately to keep the problem under wraps.
Doubtless an amending clause in some future piece of legislation will sneakily attempt to get it off the hook.
Unfortunately it will be doing far more than that. Any such legislation will be removing a right first recognised in English law over 300 years ago.
It has never been tampered with since.
The implications are huge but we’ll come to the practicalities in a moment.
One of the most remarkable aspects of this story is how it arose. The government shot itself in the foot.
Some years ago a Sunderland market trader was prosecuted for selling a pound of bananas. Other prosecutions followed, and a test case on the use of metric and/or imperial units of measurement ended up in the High Court.
The ‘criminals’ became known as the Metric Martyrs.
Lord Justice Laws’ judgement included the words "A constitutional statute [in this case the European Communities Act 1972] can only be repealed by the unambiguous words of the later statute." Lord Justice Laws held that the Weights and Measures Act 1985 did no such thing. Therefore, he argued, the traders were obliged to sell goods using metric weights and guilty of an offence by not doing so.
One of the men involved in that legal battle was Neil Herron, also a market trader at the time. He spotted that if such a hierarchy of English law did indeed exist, and some laws were above others (a legal principle unknown in English law before the Laws judgement), then such status must apply to all other constitutional statutes of which the Bill of Rights 1689 is plainly one. Indeed the Laws judgement included an admission that it was.
So when Mr Herron later received a parking ticket he refused to pay the penalty charge, and argued the Laws judgement in his defence. He must be prosecuted, he told the local council. But parking offences were de-criminalised in the Road Traffic Act of 1991, so prosecution was not and is not possible, despite the Bill of Rights making no distinction between criminal and civil cases.
Thirty parking tickets later, and with more motorists joining the fray every day, Mr Herron is still refusing to pay and successfully arguing the same defence.
Hence the government’s dilemma. If it argues in a test case against Mr Herron or anyone else for that matter - that the Laws judgement is wrong and that the Road Traffic Act does by implication repeal the Bill of Rights clause 12, it will simultaneously be arguing that retailers can sell their wares in pounds and ounces again. Big problem.
Any attempt to tamper with the Bill of Rights would open a can of worms quite capable of consuming the government that tried it especially one already as unpopular as this one. It would be a weapon that even the inexperienced David Cameron could not fail to wield with effect.
Meanwhile almost a billion pounds of annual income to the public purse is at risk, to say nothing of the millions that may/should be refunded.
Meanwhile, the battle over the legitimacy or otherwise of fixed penalties for parking offences has extended not only to other parts of the country, but also to other types of fixed penalties. Local councils and government agencies are becoming worried at the impact on their finances and legal resources.
Still in Sunderland, the council has had to admit that it has incorrectly issued 60,000 penalty notices including some against disabled badge holders, to people temporarily stopped on taxi ranks, and to those whose vehicles have been clamped. Even worse, its legal department cannot show that all the correct signs were in place before parking penalties were first introduced.
For good measure it has also had to admit that it cannot find the legal documents to prove Sunderland is a city and not a metropolitan district.
Under the Theft (Amendment) Act 1996 it is an offence to obtain money by deception. So Sunderland city (?) council’s admission that penalty notices were unlawfully issued is proving expensive. Over £35,000 has been repaid so far, with another £2.5 million pending. And local traffic wardens have been told not to ticket Mr Herron’s car, wherever he parks! The situation in Rochdale is as bad. There the council has admitted that 26,000 such notices were unlawful because they were addressed to the driver of the vehicle and not the owner/keeper as required by the same Road Traffic Act of 1991.
Over half a million pounds is being refunded there.
Another stone overturned by chance in this legal minefield has revealed the questionable activities of the National Parking Adjudication Service.
It is supposed to ‘adjudicate’ on disputes over fixed penalty charges. But it is funded by 60 pence per notice issued, and answers to a committee made up of - wait for it - local authority officials! NPAS’ service development officer, Paul Griffiths, has conceded under questioning that its hearings are not courts of law, but independent tribunals. So the Bill of Rights defence stands against their supposed adjudication too.
In Worcester, pensioner Robin de Crittenden recently won a case against the city council after four hours of legal argument in a NPAS tribunal. The adjudicator decided the case in Mr de Crittenden’s favour on a technicality: namely that the council had failed to supply evidence of a traffic regulation order. Mr Herron and Mr de Crittenden are now planning to appeal to the High Court on the failure of the tribunal to determine the essential point of law at issue.
Meanwhile, as word spreads, people who wish to avoid aggravation by paying up are being encouraged to write on the back of their cheques "Paid only on the understanding that this penalty will be returned in full when the supremacy of the Bill of Rights over the law under which this penalty is levied has been confirmed in an English court of law."
Despite the government knowing exactly what a bind it is in, the Lord Chancellor, Lord Falconer, has recently being advocating the wider use of fixed penalties for a variety of offences and misdemeanours.
In addition to shoplifting, he has in mind minor offences like public disorder by youngsters; avoidance of TV licences; driving licence, MOT and road tax offences; and council tax and non-domestic rates offences. In all they total over six million cases a year.
He is also advocating the additional use of wheel clamping and vehicle seizure to deal with parking, speeding and other motoring offences when penalties are not paid - despite such action being a clear breach the first of the great constitutional statutes, Magna Carta of 1215, no less.
In modern parlance Magna Carta says no man may be deprived of his means of
earning a living which nowadays usually means access to a car.
There are many other ways of incurring a fixed penalty that do not to require a court case before enforcement by a government agency. It is a long, comprehensive and growing list.
The DVLA charges an £80 fixed penalty for failure to supply information about a vehicle within a given time.
(The DVLA even sells data derived from driving licences to third parties but that’s another matter.) Local authorities can issue fixed penalties to parents with children who are regularly absent from school. They can also issue them to owners of dogs fouling pavements.
The congestion charge scheme in London is based on fixed penalties. The Inland Revenue levies £100 penalties for late self-assessments and potentially much more for late payments. Customs and Excise used similar powers to levy penalties for the late payment of VAT. Failure to pay what you owe to the Child Support Agency carries financial penalties.
Serious questions arise.
Are these agencies acting lawfully?
If not, can their victims recover the money taken from them unlawfully?
What is the cost to the public purse of the current confusion?
Indeed, what is the likely cost to the British taxpayer as the government attempts to get itself out of this self-induced tangle?
Enforce the Laws judgement and other huge problems arise. How to stop the courts clogging up completely?
How to avoid a hugeescalation in costs, administration and delays?
That is why the government is so worried. They know Magna Carta and the Bill of Rights were created at moments of great constitutional crisis precisely to prevent the imposition of ‘summary justice’ by an overbearing state. Fixed penalties are summary justice but until the Metric Martyr judgement nobody realised there was a problem. Now they do.
That is why the government is saying as little as possible. It would rather this particular Pandora’s Box remained firmly closed.
But we just prised it open a little further.
ED: Comment was passed that when the Home office was contacted about this legal quagmire the person just laughed - well they would wouldn't they?
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