I don't like the "or is likely to cause" bit. Who's to say that 5 modified Novas en-route into Southend are going to cause any alarm?
I sometimes go to Supra meetings, and we just stand around, look at each others engines, quite dull really, certainly no Fast and the Furious shenanigans happen.
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Got a couple of these being challanged...will let you know the progess. Another development is the so called CrASBOS. Police or LA can now apply for an ASBO after conviction radically simplifying the process and cost of a full ASBO. All the prosecution have to prove is that the offence is Anti Social and they are difficult to contest if fairly laid out. Already had one issued for "Anti Social" use of a scrambler motor-cycle. It bites. Basically the owner of the vehilce has been banned on punishment of arrest and clink on riding on common land to the annoyance of others.
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PU, just as we predicted in the original thread, this appears to be turning into a good little earner for m'learned friends.
Also seems to be following the prediction of becoming just a little Big Brotherish, no, not the TV show, the book!
The thing I find worrying is who will be the final arbiters in all of this?
Hopefully your learned friends can make some reasonable well argued case law because otherwise I feel we are at the top of a, very steep, slippery slope.
Cockle
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I agree, I can see some cases going to ECHR level. COrrectly applied I cannot fault the legistlation. In fact the CrASBO case I quoted was a cracking and imaginative application of law to solve a problem that kept a lot of people awake in hot weather. From the time he was nicked to having the the order made took 4 weeks. This guy was a menace.
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I think the point is the reasonable grounds part. If it were applied only where there were truly reasonable grounds, it would be no problem at all.
However what about borderline cases, where a car is parked up at a cruise, for instance, quite legally, but the owner is encouraging others, making a noise, or otherwise participating from the sidelines?
Does the use on the road - and parked cars are being used - form part of the annoyance that the owner may actually be causing elsewhere, on the grounds that he could not or would not have come to the cruise without it?
Given that most cars at a cruise, while their drivers are not exactly law abiding, will be spectators' transport rather than active donutting participants, I think it's quite hard to make out the case for reasonable grounds.
Similarly, purely pre-emptive warnings are going to have a hard time standing up under Article 1 ('peaceful' enjoyment of property) and Article 6 (right to a fair trial).
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I think that "peaceful" is oprative workhere. There are a lot of briefs working hard on these cases as we speak. I had a case on Tuesday where the word "reasonable" must have been left out of a particular Officer's Dictionary. If I quoted the case you just could not comprehend the way he reacted to a set of circumstances. The Bench are not convinced either as it happens.
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Can't argue that some of the provisions are long overdue, and if used correctly, and imaginatively, could be of general benefit BUT as Rob C said,
'I don't like the "or is likely to cause" bit. Who's to say that 5 modified Novas en-route into Southend are going to cause any alarm?'
I think that what rings alarm bells for many of us is:-
AND Is causing, or is likely to cause alarm, distress or annoyance to members of the public he/she has the power to:-
Order the person to stop driving the vehicle (it is an offence not to do so when ordered by a police constable to stop) and to warn the driver that his/her behaviour constitutes and offence. This warning lasts for a period of TWELVE MONTHS.
When this is being applied at the roadside at 22:00 on a Saturday night it must come down to personal opinion on behalf of the police officer, as, lets face it, there aren't too many solicitors, barristers, and judges standing around the roadside at that time of night! Therefore one has to hope that the officer concerned is reasonable otherwise you can basically be ordered out of your vehicle and prevented from driving, and to continue your journey will be to commit an offence.
I am afraid it is like many things, if applied in a reasonable manner it will be fine but checks and balances are required. Keep us posted on the ongoing cases, I, for one, will be very interested in the outcome.
Cockle
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I think 'peaceful' here means 'without disturbance from others', not 'without causing disturbance to others.'
Of course the government can deprive people of that right, as long as it is a proportionate response to a situation, but IMO would be quite adventurous for a court to read in a requirement that property must be enjoyed (i.e., used, no pleasure is actually required) considerately in order to obtain a right under the ECHR/HRA.
Thankfully, a Constable must have 'reasonable grounds' that behaviour 'is likely' so it is not completely arbitrary. (Or maybe not so thankfully, because without the reasomable grounds, it would almost definitely fall foul of the ECHR and the whole provision would potentially be invalidated).
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I still have concerns about it. There should be a more robust way of challanging. I am generally supportive of the Police in these threads and don't wish to change that...but i do worry about certain cases.
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On average, about once a week, I get a note from a jury asking me to define the word 'reasonable'.
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I suspect that says more about juries - and dare one say it - perhaps judges - than about the law in question!
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I think the point HisHonour is trying to make is that the use of 'reasonable' is the draughtsman's cop out.
In some ways, this is good, because it allows the law to change as society's standards change but also it introduces an element of uncertainty and lets the government point to decisions that are politically unpopular, shrug and say 'that's not what we meant by reasonable.'
In any case, reasonableness is generally a finding of fact, not law and therefore for the jury to decide, so the definition of what is reasonable in each case is actually down to the jury itself.
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HM is spot on. You cannot actually define 'reasonable' as a catch-all. It differs in every situation. I usually suggest to the jury that the twelve of them, being intelligent people, are quite able to decide what is reasonable in the case they are trying.
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I thought the Stasi in the DDR died when the Wall came down. Evidently it didn't and has migrated to UK.
Thank God I live where I do.
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