Traffic Violation

This is a very real case, but is not me. I'm trying to help someone who is a friend of someone staying with us at the moment. There are a few issues, so I'll outline the situation as best I can in the order they were given to me.

Firstly there are two Liability Orders for Council Tax, one solely in her name and one in her and her ex-partners name where the ex has now moved New Zealand. Both of these are with bailiff companies who, although is only in receipt of Housing and Incapacity benefit and is disabled (blue badge hotel) have refused her payment offer of £20 per month.

Secondly there is a traffic offence, caught on camera where her ex was driving her car and went into a bus lane. This was caught on camera and as she is the registered keeper she was sent the fine. As she was distressed from the recent break up with her partner she paid the £30 fine (mistake). The £30 arrived a little late and she is now being pursued for £400 by bailiffs.

Now my thinking. Motoring offence is magistrates court so bailiffs could get nasty, but she was not the driver. I think she needs to do a sworn affidavit and lodge an out of time appeal, but to whom does she send the affidavit? As it's magistrates and she is wrongly being pursued, does this come above the Council Tax?

Council Tax as the ex has moved to New Zealand she is being pursued for both LO's by herself as they won't pursue her ex in New Zealand. The council will not deal with her, bailiffs have turned down what she can afford which was £20 per month. They have also charged £120 for the first visit.

Thoughts on the above welcomed please.

[SpringerSpaniel]

Re: Traffic Violation

I would regard the magistrate's fine as top priority if it relates to a criminal offence - even if she did not commit the offence herself. It is very unfortunate that she did not appeal this fine within the time limit for doing this, on the basis that she was not the driver and should not be punished for an offence she did not commit. There was a similar situation involving another poster recently, I will try and find the thread and post a link to it here - he was being pursued for a magistrate's court fine for a matter someone else had committed not him, and he began steps to appeal this to the court. If I remember correctly, he sent the bailiffs a fax explaining this and thye gave him 2 weeks to sort it out, during whihc time enforcement action was suspended. He also went to the magistrates court in person and explained the situation, thye gave him forms to take away and complete.

As to the council tax, the bailiff visit fee exceeds the amount permitted, as set out in the site's guides. I would suggest trying to persuade the council they are vicariously liable for the unlawful conduct of their bailiffs by writing to the chief exec and/or the director of revenue and copying in any relevant local councillors. The council might well then take it back in house and I would hope they would accept the offer of £20/month in these circumstances.

The blue badge should be prominently displayed in the car at all times in the meantime.

[SpringerSpaniel]

Re: Traffic Violation

This is the thread I was referring to :

http://http://www.legalbeagles.info/forums/showthread.php?t=29947

in particular, at post 23 in that thread the OP sets out what the court advised him to do, which is likely to be applicable here

[Caspar]

Re: Traffic Violation

OK so in terms of the Magistrates Court she needs to do a sworn affidavit along with a covering letter to the bailiffs, and copied simultaneously to the court fines officer. She also needs to go to the court office and get the forms for an out of time appeal.

It goes without saying that it is against natural justice for her to be penalised for a crime she did not commit.

If necessary she can then presumably get an interim injunction restraining further recovery action until the appeal has been heard?

As regards the Council Tax I'm happy covering that.

[SpringerSpaniel]

Re: Traffic Violation

Yes, I would agree with that summary of the situation.

@Mods - I think a sticky and/or a guide to magistrates court fines would be helpful, and a guide to which traffic fines are civil and which are criminal, as this is confusing and it is a common problem members post about.

[Caspar]

Re: Traffic Violation

Only for the benefit of anyone reading this before I post further, this could be either a criminal or a civil offence. For example Nottinghamshire County Council will usually regard it as a civil offence, but if the police pursue it, they drop the PCN and let the police pursue through the magistrates court.

I will ask the person concerned to scan the notice so it can be clearly established which court dealt with it as it is impossible to give accurate advice without this knowledge.

[Amy]

Re: Traffic Violation

Several glaring errors leap out to me...

Are you absolutely sure this is a magistrates' fine because if the contravention was caught on camera and was merely posted out, it is much more likely to be a PCN?

Second, a bus lane contravention is not driver dependent. As per my Parking Fine guide here:
Parking Fine Guide - Legal Beagles Consumer Forum
"It is also worth noting that it is not necessary to establish who was driving at the time of the contravention. Therefore, there is no merit in arguing that you were not the driver, unless the car was taken without your prior permission. In the case of Penalty Charge Notices the owner is usually liable for the penalty and the owner is presumed to be the registered keeper."

Post #6 is a very curious mis-mash of 'information'. A county court can only deal with civil matters as the law dictates. They do not get to choose how they deal with these penalties or fines. If parking has been decriminalised then the clue is in the 'decriminalised' part - it is no longer criminal and is instead a civil offence and will be dealt with by a county court.

Further, the police will never pursue a PCN because they are not criminal issues. The police issue Fixed Penalty Notices and these are criminal fines.

The two are not interchangeable.

[SpringerSpaniel]

Re: Traffic Violation

These links may be helpful:

http://www.ticketfighter.co.uk/Busla...#outsidelondon

and

The Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2005

[Caspar]

Re: Traffic Violation

Thanks Amy,

You seem to have misread my post #6 as I said at the end we needed to establish which court was involved so any guidance could be accurate. The problem is that this issue can be dealt with by either civil or criminal procedures, thus the importance, as prevously stated in post 6, that we need to know which court dealt with it.

It would appear we are agreed on this, though I believe it is impossible to have a civil offence. If it is an offence it is criminal, if dealt with as a decriminalised matter then it is a civil issue, but not an offence. The clue is in the 'decriminalised' part.

[Amy]

Re: Traffic Violation

No I didn't you wrote ..."will usually regard it as a civil offence." They can only regard it as a civil offence because they are a county court and deal only in PCNs.

What does the original paperwork say, does it say it is a penalty charge notice or a fixed penalty notice?

[Caspar]

Re: Traffic Violation

Only for the benefit of anyone reading this before I post further, this could be either a criminal or a civil offence.

I will ask the person concerned to scan the notice so it can be clearly established which court dealt with it as it is impossible to give accurate advice without this knowledge.

It is a strange area of law in that a bus lane contravention can be dealt with under a PCN or an FPN. Different councils have different policies as to what to do if both are issued, some give priority to the PCN, some to the FPN. Given that different councils interpret the legislation in differing ways, it makes it all the more critical that the registered keeper of the vehicle which committed the offence is fully aware of the difference, as highlighted in your guide Amy, between an offence dealt with by a Magistrates Court and a County Court.

This is also a useful link:

Bus Lane Frequently Asked Questions : Nottingham City Council

[Amy]

Re: Traffic Violation

You are wrong. It is not a 'strange area of law' at all it is quite the opposite. It is either criminal or not.

I have offered my help since this thread was full of mistakes that will get perpetuated by people who think they know what they are doing.

If you want to argue semantics instead then go for it.

[Caspar]

Re: Traffic Violation

Amy, I do not want, nor do I intend to be drawn into any argument at all. On the end of this post is a person.

I do still maintain though that while not unique, it is "strange" or unusual for an identical issue (in this case a bus lane violation) to be legislated so that it can be deemed both a criminal offence and a civil issue.

[leclerc]

Re: Traffic Violation

Caspar does the notice say Fixed Penalty Notice or Penalty Charge Notice?

That's the only bit that needs clarifying at the moment

[CleverClogs]

Re: Traffic Violation

I do still maintain though that while not unique, it is "strange" or unusual for an identical issue (in this case a bus lane violation) to be legislated so that it can be deemed both a criminal offence and a civil issue.

It isn't - look at other Blairite legislation, such as the Protection from Harassment Act 1997 - link.

Phoney Tony and his subordinate kakistocrats seemed to be obsessed with creating laws where guilt, if not probable beyond reasonable doubt, could be established in a separate trial on the balance of probabilities.