LadyDeliah

What's wrong with acting like a teenager? Not everyone wants to be a grumpy, Middle aged twat. I myself prefer to be an immature middle aged twat.

The power to issue an FPN doesn't come from the Highways Act. Section 54 of the Road Traffic Offenders Act 1988 is where the power to issue FPNs for cycling on the pavement comes from. It doesn't say FPNs MUST be issued, it says they MAY be issued. The ministerial statement gives guidance on the policy of when an FPN should be issued. Therefore failure to follow that policy by issuing an FPN in circumstances that fall within the stated exceptions can be argued to be unlawful. Ok that will be ?150 thank you. Don't you work in some area of law Loz? If not I apologise for assuming you knew more about some of this stuff than you do. If you do then, tut tut on your poor research skills!

The challenge to the FPN would be based on the application of policy as stated by the ministers not to issue FPN's in certain circumstances. It's not a challenge to the Highways Act. I'd love up argue that the highways act is incompatible with my article 2 ECHR right to life though and get a declaration of incompatibility :-) Getting tired so hoping I'm making sense.

On the first case I've put up, Hakemi, the statement of the minister in relation to the unresolved cases of asylum claimants who'd been lost in the system was a policy. They are referred to Legacy cases. The minister said they'd be resolved by July 2011 and when they weren't there were (and still are) many claimants who have JR'd the failure of the SSHD to apply the Legacy policy. I've won cases on failure to follow the 'Legacy' policy. I got leave for someone who had been unlawfully removed after the SSHD's failure to follow her policy. It's a form of illegality.

Examples of failure to apply policy as grounds for JR: http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2012/1967.html&query=title+(+Hakemi+)&method=boolean http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2011/2748.html&query='failure+and+to+and+follow+and+policy'&method=boolean http://www.bailii.org/cgi-bin/markup.cgi?doc=/scot/cases/ScotCS/2007/CSOH_156.html&query='failure+and+to+and+follow+and+policy'&method=boolean http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2001/553.html&query='failure+and+to+and+follow+and+policy'&method=boolean This one is more convoluted, but you can find the failure to follow policy explicitly stated as a ground at paragraph 54. http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2012/878.html&query='failure+and+to+and+follow+and+policy'&method=boolean More where those came from http://www.bailii.org/cgi-bin/sino_search_1.cgi?sort=rank&datehigh=&query='failure%20and%20to%20and%20follow%20and%20policy'&method=boolean&highlight=1&datelow=&mask_path=/eu/cases%20/ew/cases%20/ie/cases%20/nie/cases%20/scot/cases%20/uk/cases if you want any additional evidence that a ministerial statement can amount to a policy and failure to follow policy can render a decision unlawful.

Getting dizzy from cross-posting! The point about no-one getting their car with a view to running down cyclists is irrelevant. Motorists owe a duty of care to other road users and are obliged to take extra care around vulnerable roads users such as cyclists. If someone is unable or unwilling to meet the level of care required, they should not be on the road.

Not really Otta. Stereotypes can come about from prejudice and mis-information, such as cyclists don't pay for roads.

I'd have a better arse if I was a hardcore cyclist, Loz. Mine is less than perky, evidence of my medium core cyclist status. And yeh the cartoon was a bit funny in it's characterisation of certain cyclists but promoting factually incorrect anti-bike myths like 'road tax' paying for roads turned me off pretty much straight away.

Otta Wrote: ------------------------------------------------------- > the-e-dealer Wrote: > -------------------------------------------------- > ----- > > Says it all really. > > > > > > > > =youtu.be > > > I do love that clip, and the show it's taken from. > I've posted it a couple of times in the past, but > some of the hardcore cyclists couldn't even see > the funny ironic side of that. Sorry, I must be a hardcore cyclist then. Cartoon negative stereotypes are not funny just because they are cartoons.

If you read further down, the blogger didn't have a copy of the statement, but it's here: http://www.cyclescape.org/library/documents/32 plus the latest statement from the Lib Dem Minister for Transport is clear enough. I know people who have challenged just on Paul Boeteng's statement and won.

Even the courts recognise the destructive disparity between motor vehicles and others: "So, for example, in Toropdar v D a motorist who was driving negligently fast (although under the speed limit) collided with and injured a ten-year-old boy who ran into the road from between parked cars. Giving judgment, Clarke J said that a car is ?in one sense a lethal weapon? so that ?the standard of care required of a driver to prevent harm is likely to be greater than that of a pedestrian?, and held that the motorist was two-thirds liable for the boy?s injuries. (Toropdar v D [2009] EWHC 2997, ?42)" "Hale LJ in Eagle v Chambers explained: A car can do so much more damage to a person than a person can usually do to a car. [?] The potential ?destructive disparity? between the parties can readily be taken into account as an aspect of blameworthiness (Eagle v Chambers, above, ?15) In other words, when determining the relative blameworthiness (for the purposes of contributory negligence) of a motorist and a person whom the motorist has injured, the courts are prepared to take into account the fact that the motorist was driving a potentially dangerous weapon ? so any fault on the motorist?s part is more blameworthy because it poses a greater risk to others." There are other examples but I'm even boring myself now!

Yes, we use failure to follow stated policy all the time in immigration law, because the Home Office are really bad at following their own published policy. Here's something interesting by a barrister blogger, for anyone who actually wants to know how to challenge a FPN for cycling by the way: http://ukcyclerules.com/2012/01/04/challenging-a-fixed-penalty-notice/#more-530

You claimed the description of a motor-vehicle as lethal machinery was hyperbolic and emotive, I was merely proving that it is an accurate description. I did not need to look for a definition that excluded bicyles, they just weren't mentioned.

A Ministerial statement is policy and policy is law Loz, you should know that. Failure for a decision maker to follow their own stated policy is grounds for Judicial Review. But I agree the Highway Act 1835 needs to be changed to recognise the needs of, and risks to, cyclists.

It's hard to say what sentence she should get, but for taking someone's life in the circumstances described, I would expect her to have a custodial sentence of some kind. Death by motor vehicle was taken out of the manslaughter group of crimes some time ago. I think it should be put back in and the sentences should be in-line with those for other forms of involuntary manslaughter, which is pretty wide depending on the mitigating and aggravating circumstances.

aquarius moon Wrote: ------------------------------------------------------- > KalamityKel Wrote: > -------------------------------------------------- > ----- > > Tomdhu have you considered contacting the > police? > > > > Surely this is the more mature approach rather > > than having a quite unnecessary cat fight on > here > > (as it's sooo not as entertaining as you seem > to > > think it is)? > > > > *Like* If someone posts a load of old crap in response to your opening post, how is correcting them a cat fight?

KK, I think he said he thought about contacting the police but was worried they might be a bit heavy handed so tried to appeal to anyone who might know her first.

I think the denial of drivers to face the potential harm of their behaviour is a massive problem and needs to be addressed.

Otta - I don't think I've contradicted myself. I think the penalties for killing people whilst carelessly driving a dangerous and often lethal machine, is too low. It normalises the deaths and fails to have an impact on offender behaviour, which is what punishment for crime is supposed to be. I don't think there is any place for retribution in sentencing, but there must be an element of behaviour modification, not just for the offender, but for other drivers, for it to be of use. Loz - cars, vans, buses, trucks; they are all machines whose use has been responsible for many deaths and the use of each individual one has the potential to kill. I think, therefore, they can rightly be described as lethal machinery. Definition of Lethal: a : of, relating to, or causing death b : capable of causing death Definition of machine: : a piece of equipment with moving parts that does work when it is given power from electricity, gasoline, etc. : a vehicle (such as a car or motorcycle)

Otta, she has a responsibility not to be a danger to other people when in charge of lethal machinery. If I carelessly poison someone, causing their death, because of bad heigine in my restaurant, should my only penalty be that I can't own a restaurant again?

Here are the mitigating factors the judge is supposed to take into account: 1.Alcohol or drugs consumed unwittingly 2. Offender was seriously injured in the collision 3. The victim was a close friend or relative 4. Actions of the victim or a third party contributed significantly 5. The offender?s lack of driving experience contributed to the commission of the offence 6. The driving was in response to a proven and genuine emergency falling short of a defence Can't see being a Christian or doing voluntary work in the list. http://sentencingcouncil.judiciary.gov.uk/guidelines/guidelines-to-download.htm

the-e-dealer Wrote: ------------------------------------------------------- > I'm sure you rang your mandatory bell to warn the > pedestrian. Wrong thread. I think you want this one: http://www.eastdulwichforum.co.uk/forum/read.php?20,1175727,page=15

Driving should not be seen as an automatic entitlement. If you cannot prove that you are safe and this applies to the HGVs, without proper safety modifications, thundering down our roads, then you should not be allowed to drive your vehicle on the roads.

I am not a lock em and flog em kind of person Otta. I think the sentence should be in line with other offences where death is caused by someone's careless or negligent act, such as causing death by carelessly starting a fire. I do not believe that because millions of people drive, death by careless driving should be a special case and attract insultingly low sentences. It is tolerated because there is an acceptance in society that all drivers break the law and these things are just part of life. I think 12 months suspended sentence for this offence is too low, especially given one of the mitigating reasons was because she was a Christan and did charity work. If it was my family member who'd been killed in these circumstances, I would lobby for the AG to appeal on the sentence and sue the offender in the civil courts too. Drivers need to face tougher penalties or society's attitude and drivers' behaviour is very unlikely to improve.

What punishment would you want her to have if the cyclist she killed was your wife? I doubt you'd ever want her behind the wheel of a car again. If someone kills a cyclist in these circumstances they should never be allowed to be in control of lethal machinery again.