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Saturday, 18 February 2012

The ECHR and Parking Fines

The natural Person Alan Simon Crowcroft,
the legal Person Alan Simon Crowcroft OR
the legal Person the Constable of St Helier
Which is he at this snapshot in time?
I was speaking to the Constable of St Helier the other day, who felt my terms and conditions were a bit anarchic, I disagree, they are completely lawful, so for his benefit I shall go through the steps that would be required to successfully prosecute me for a parking ticket and hopefully demonstrate why it is imperative that both the Government and I understand in which persona, I am acting at any given time. If you ain't paying me then I am acting in my Natural Private Person, not my Legal Public Person.

This time I am going to use the proper legal terms which are bold in italics.

Note that none of what I have reproduced below has ever been admitted to, accepted or confirmed by any Law Officer, Advocate or Solicitor in Jersey, but neither has it been denied. The Law is deliberately complicated to make sure that you do not understand it (and ultimately it comes down to one person's opinion, and no Jersey lawyer or judge is an expert in Human Rights). Do not take my word for any of the below, go out and do your own research.

For a parking penalty to be enforceable in a Court, against you the following needs to be proven:
  1. That you were the driver of the car.
  2. That you contravened the relevant section of the Road Traffic Act
  3. That the potential for vicarious liability to the government has been caused, and that as a result the penalties set out in statute apply.
  4. That due process has been followed
Under the current system only #2 is usually proven, however if you simply show up to a Parish Hall enquiry or the Magistrate's Court, both those tribunals will act upon the presumption that all four are proven, it is for you to challenge that presumption of law ask for proof of claim.

This is relatively simple just e-mail the Constable and ask him to provide proof of his claims.

The most difficult for the Constable to prove is 3.
vicarious liability can be defined as the liability created by an action or non action by a person, working on behalf of him when he is responsible for all the action or inaction of such person within the limits of their association. So when an employee or worker cause a loss to somebody in the normal course of his duty then the employer will be responsible for such loss. (Reference)
Once Vicarious Liability is established with the Government as the employer, you are then liable to abide by the statutes which are the rules concerning the conduct of Agents of the Government. Essentially you are asking the Constable to prove that you were working for the government at the time. It is only through vicarious liability that statute can apply to legal persons.

So I guess you are now going to ask me why the government has to be able to show that they have vicarious liability for your actions?

All of this is tied into Article 8 of the European Convention on Human Rights, the right to a Private Life.

Article 8 is a qualified right and as such the right to a private and family life and respect for the home and correspondence may be limited. So while the right to privacy is engaged in a wide number of situations, the right may be lawfully limited. Any limitation must have regard to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole.

In particular any limitation must be: in accordance with law; necessary and proportionate; and for one or more of the following legitimate aims:
  • the interests of national security;
  • the interests of public safety or the economic well-being of the country;
  • the prevention of disorder or crime;
  • the protection of health or morals; or
  • the protection of the rights and freedoms of others.
The important thing to remember is that the ECHR is based exclusively on UK Common Law - your Private Life is every part of your life which is not Public (i.e. is not the execution of government duties).

Now can anyone explain which of the legitimate aims above would allow the government to dictate when you or I, as private individuals, can park, for how long or where we can park as long as it is not in a place which is likely to cause an accident (such as at the corner of a junction)?

Article 8 may as well say 'And it harm none do as you will'.

The Natural Person is you in your Private Life, the Legal Person is you in your Public Life or when acting as an Agent of the Government.

Ever wondered why the only Statute on the book which does not use the term 'person' is the Human Rights (Jersey) Law 2000?

The ECHR is specifically designed to prevent the intrusion of Government into our lives, to prevent over-regulation and ensure our freedom and liberty.

The Case Law is there, finding it is your task and will depend on the specifics of the case you are dealing with. The Right to smoke cannabis has been tested for example, but at the moment the Courts have not been minded to allow this, but this is not a unanimous judicial opinion.

On the other hand if the government has a choice between foregoing a £30 fine or facing years of ruinously expensive litigation to argue the point, maybe the cases are just dropped by the government for sound financial and/or business reasons and I'm sure that that is the excuse they will always make to avoid having to answer the pertinent question.

It is easier whilst 95% of people receiving parking tickets pay them, not to make too much fuss about those that don't.