Loz Posted January 12, 2014 Share Posted January 12, 2014 I disagree with politician 'issuing guidance' which actually contradicts the law as it is written. They should change the law if it needs changing. Saying that the law can be ignored sometimes leaves everyone not knowing what the true legal position is. Link to comment https://www.eastdulwichforum.co.uk/topic/36063-cycling-on-the-pavement/page/18/#findComment-710748 Share on other sites More sharing options...
LadyDeliah Posted January 12, 2014 Share Posted January 12, 2014 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. Link to comment https://www.eastdulwichforum.co.uk/topic/36063-cycling-on-the-pavement/page/18/#findComment-710750 Share on other sites More sharing options...
Loz Posted January 12, 2014 Share Posted January 12, 2014 LadyDeliah Wrote:-------------------------------------------------------> A Ministerial statement is policy and policy is> law Loz, you should know that. I defer to your legal knowledge, LD, but does that actually stand up in a court of law? There have been plenty of ministerial statements and policies of late that have been challenged in court. Link to comment https://www.eastdulwichforum.co.uk/topic/36063-cycling-on-the-pavement/page/18/#findComment-710764 Share on other sites More sharing options...
LadyDeliah Posted January 12, 2014 Share Posted January 12, 2014 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 Link to comment https://www.eastdulwichforum.co.uk/topic/36063-cycling-on-the-pavement/page/18/#findComment-710769 Share on other sites More sharing options...
Loz Posted January 12, 2014 Share Posted January 12, 2014 Interesting read, but mostly similar to stuff I've read of challenging parking tickets and traffic FPNs. The interesting paras were:The position is perhaps not entirely clear cut, but I suspect that the Home Office statement doesn?t affect the ability of the police to issue FPNs for cycling on the pavement.As I?ve said, generally the courts won?t interfere with prosecutorial decisions ? and that probably includes decisions to issue FPNs. If the decision to issue a FPN contravenes a clear policy, then in some cases the position might be different. But the Home Office statement seems far too general to amount to a clear policy on the issuing of FPNs to cyclists. (E.g. R (Mondelly) v Metropolitan Police Commissioner, above, paras. 37-42)If I was a cyclist, I'd expect to know where I stand, not rely on some vague pronouncement by the transport minister that may or may not stand up in a court. Link to comment https://www.eastdulwichforum.co.uk/topic/36063-cycling-on-the-pavement/page/18/#findComment-710773 Share on other sites More sharing options...
LadyDeliah Posted January 12, 2014 Share Posted January 12, 2014 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. Link to comment https://www.eastdulwichforum.co.uk/topic/36063-cycling-on-the-pavement/page/18/#findComment-710779 Share on other sites More sharing options...
Captkerk Posted January 12, 2014 Share Posted January 12, 2014 Thanks for the legal facts. This is very helpful i mentioned before that I occasionally cycle on pavement when it is too dangerous to continue on the road. there are plenty of examples of this near ED. I always defer to pedestrians and will dismount and walk when necessary. Glad to know I am within reasonable interpretation of the law. Link to comment https://www.eastdulwichforum.co.uk/topic/36063-cycling-on-the-pavement/page/18/#findComment-710819 Share on other sites More sharing options...
Nigello Posted January 12, 2014 Share Posted January 12, 2014 Glad to know I am within reasonable interpretation of the law. = Glad to know that I can continue with my anti-social and solipsistic behaviour whilst pretending I'm the not the kind of person to cause an accident because, well, you know, I'm not that like that?..Just get off and walk. Do the right thing! It'll add a few minutes to your journey and could well save you an accident, however minor. Link to comment https://www.eastdulwichforum.co.uk/topic/36063-cycling-on-the-pavement/page/18/#findComment-710847 Share on other sites More sharing options...
LadyNorwood Posted January 12, 2014 Share Posted January 12, 2014 If "it is too dangerous to continue on the road" then I've very glad to hear that you get off your bicycle and push - sometimes it's dangerous to drive on the roads but I don't get out of my car and push it on the pavement..Captkerk Wrote:-------------------------------------------------------> Thanks for the legal facts. This is very helpful i> mentioned before that I occasionally cycle on> pavement when it is too dangerous to continue on> the road. there are plenty of examples of this> near ED. I always defer to pedestrians and will> dismount and walk when necessary. Glad to know I> am within reasonable interpretation of the law. Link to comment https://www.eastdulwichforum.co.uk/topic/36063-cycling-on-the-pavement/page/18/#findComment-710886 Share on other sites More sharing options...
Jonathan62 Posted January 12, 2014 Share Posted January 12, 2014 Re policy is law etc.This is utter rubbish; a ministerial statement is a statement of fact, normally with the intent to provide clarification, it is not law. Nor is failure to follow policy, in of itself, grounds for judicial review. Link to comment https://www.eastdulwichforum.co.uk/topic/36063-cycling-on-the-pavement/page/18/#findComment-710911 Share on other sites More sharing options...
mynamehere Posted January 12, 2014 Share Posted January 12, 2014 if anyone wants to get involved Southwark Living Streets might be of interest: Two things ? 1. January Meeting, 2. Bits and Pieces 1. January Meeting. Please come along to our monthly meeting this Thursday 16th January. The meeting starts at 7pm. PLEASE NOTE NEW VENUE. We are meeting at the Royal Oak PH, 44 Tabard St London SE1 4JU. The agenda for the meeting is as follows: 1. Welcome, introductions and apologies.2. Minutes of November meeting; matters arising.3. Southwark Plan ? focus on High Streets4. May 2014 Local Elections.5. SE1 Safe Roads/Borough Babies ? Borough High Street Crossings Campaign.6. Camberwell Update.7. Cycling Infrastructure ? update on Central London Grid, Quietways and proposed north-south Superhighway.8. February meeting AGM and finances.9. Venue for future meetings.10. Any other issues people would like to raise. 2. Bits & Pieces. Hope these are of interest. a. Short film (5 minutes) on the changes to streets in New York over the past 5 years from Streetfilms. http://www.fastcoexist.com/3024382/a-video-history-of-new-york-citys-bike-lanes-from-deadly-days-to-today b. Film (10 mins) on the history of Open Streets across the world c. TED talk on Walkability ? fabulous talk by Jeff Speck on Walkability in the US d. Consultation event ? High Streets in Southwark. The planning policy team are holding an event on Saturday 18th Jan at the ASDA on the Old Kent Road. This is how they are billing it: On Saturday 18 January we are holding a community conversation about local high streets. High streets and town centres will be a specific focus of the New Southwark Plan, and we'd really like to hear you views on what's great, and not so great, about our high streets. The event will be held in Asda on the Old Kent Road on Saturday 18 January. Please come along at any time between 10am and 3pm. Officers will be on hand to discuss issues around Old Kent Road (or other high streets) and there is a short survey. Link to comment https://www.eastdulwichforum.co.uk/topic/36063-cycling-on-the-pavement/page/18/#findComment-710916 Share on other sites More sharing options...
LadyDeliah Posted January 13, 2014 Share Posted January 13, 2014 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=booleanhttp://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2011/2748.html&query='failure+and+to+and+follow+and+policy'&method=booleanhttp://www.bailii.org/cgi-bin/markup.cgi?doc=/scot/cases/ScotCS/2007/CSOH_156.html&query='failure+and+to+and+follow+and+policy'&method=booleanhttp://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2001/553.html&query='failure+and+to+and+follow+and+policy'&method=booleanThis 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=booleanMore 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. Link to comment https://www.eastdulwichforum.co.uk/topic/36063-cycling-on-the-pavement/page/18/#findComment-710942 Share on other sites More sharing options...
Loz Posted January 13, 2014 Share Posted January 13, 2014 But surely 'failure to apply policy' is vastly different to a ministerial edict that conflicts with the law as it is written? Doesn't that come under separation of powers?This is an interesting topic - is anyone out there a barrister/criminal lawyer who can shed light on this? Link to comment https://www.eastdulwichforum.co.uk/topic/36063-cycling-on-the-pavement/page/18/#findComment-710945 Share on other sites More sharing options...
LadyDeliah Posted January 13, 2014 Share Posted January 13, 2014 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. Link to comment https://www.eastdulwichforum.co.uk/topic/36063-cycling-on-the-pavement/page/18/#findComment-710946 Share on other sites More sharing options...
LadyDeliah Posted January 13, 2014 Share Posted January 13, 2014 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. Link to comment https://www.eastdulwichforum.co.uk/topic/36063-cycling-on-the-pavement/page/18/#findComment-710947 Share on other sites More sharing options...
Loz Posted January 13, 2014 Share Posted January 13, 2014 But surely once a FPN is issued, then it is a direct legal challenge to the Highways Act? That's the bit I don't get. You are asking the court to excuse you from infringing the terms of the law as it is written, because of a ministers policy, even though the letter of the law says you are in the wrong. Link to comment https://www.eastdulwichforum.co.uk/topic/36063-cycling-on-the-pavement/page/18/#findComment-710948 Share on other sites More sharing options...
LadyDeliah Posted January 13, 2014 Share Posted January 13, 2014 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! Link to comment https://www.eastdulwichforum.co.uk/topic/36063-cycling-on-the-pavement/page/18/#findComment-710952 Share on other sites More sharing options...
mynamehere Posted January 13, 2014 Share Posted January 13, 2014 5 volunteers needed from Southwark.A deputation is scheduled to Southwark Council pressing for better cycling facilities on the evening of 22nd January, on behalf of Stop Killing Cyclists.The theme of the meeting is active lives for older people and so will be pointing out the need for safer cycling infrastructure needed for older people.Very few pensioners cycling in London - yet in other cities like Tokyo loads of pensioners cycle, due to fact it is easier to cycle on sore joints than it is to walk and the safe infrastructure allows them to do so.You would not have to talk, 6 people are needed to part of a group Link to comment https://www.eastdulwichforum.co.uk/topic/36063-cycling-on-the-pavement/page/18/#findComment-710988 Share on other sites More sharing options...
LadyDeliah Posted January 13, 2014 Share Posted January 13, 2014 Count me in. Link to comment https://www.eastdulwichforum.co.uk/topic/36063-cycling-on-the-pavement/page/18/#findComment-710990 Share on other sites More sharing options...
Jonathan62 Posted January 13, 2014 Share Posted January 13, 2014 Ministerial statements are a means for providing an account to Parliament; they may also clarify, or indeed change, administrative rules and procedures but they are not laws.Judicial Review cannot be done against legislation passed by parliament, but is allowable on decisions taken by public bodies. Link to comment https://www.eastdulwichforum.co.uk/topic/36063-cycling-on-the-pavement/page/18/#findComment-711076 Share on other sites More sharing options...
LadyDeliah Posted January 13, 2014 Share Posted January 13, 2014 Jonathan62 Wrote:-------------------------------------------------------> Ministerial statements are a means for providing> an account to Parliament; they may also clarify,> or indeed change, administrative rules and> procedures but they are not laws.They are statement of policy and ok, yes they are not strictly law, but failure to follow stated policies is challangembale by way of JR so policy is an integral part of the legal arena.> > Judicial Review cannot be done against legislation> passed by parliament, but is allowable on> decisions taken by public bodies.I didn't say that JR can be used to challenge legislation. A 1st year law student would be able to tell you that JR is soley for decisions made by public bodies. Link to comment https://www.eastdulwichforum.co.uk/topic/36063-cycling-on-the-pavement/page/18/#findComment-711105 Share on other sites More sharing options...
LadyDeliah Posted January 13, 2014 Share Posted January 13, 2014 Jonathan62 Wrote:-------------------------------------------------------> Ministerial statements are a means for providing> an account to Parliament; they may also clarify,> or indeed change, administrative rules and> procedures but they are not laws.They are a statement of policy and ok, yes they are not strictly law, but failure to follow stated policies is challangembale by way of JR so policy is an integral part of the legal arena.> > Judicial Review cannot be done against legislation> passed by parliament, but is allowable on> decisions taken by public bodies.I didn't say that JR can be used to challenge legislation. A 1st year law student would be able to tell you that JR is soley for decisions made by public bodies. You can however challenge legislation by requesting a court make a Declaration of Incompatibility with the ECHR of any legislation under s.4 of the Human Rghts Act 1998, which is the closest thing we have to the power to declare legislation to be unlawful. Link to comment https://www.eastdulwichforum.co.uk/topic/36063-cycling-on-the-pavement/page/18/#findComment-711115 Share on other sites More sharing options...
Annette Curtain Posted January 13, 2014 Share Posted January 13, 2014 Law boreI do cycle on the pavement safely, when no one's too near my bikeI know it's against the law, but then splattering me with a truck or bus is against the law. Trouble is that won't help me when i'm under it. Particular places feel really vulnerable on a bike, so I then go somewhere safer (occasionally the pavement) and use my judgement to determine how safe/dangerous i'm beingIt's a bit ad hoc, but works for me and i've hurt nobody eitherElephant & castle & South Circ by Forest hill station scare the plop out of meOh and i've been fined for cycling on the pavement. I rode about 10 yards onto it to post a letter and one of the new police type people saw me, blew his whistle and warned me. Without thinking, after I posted the letter I scooted back on my bike. He was beside himself with ticket fever on that one. Silly me. He REALLY told me off when i said "Oh well, I've been cycling safely on the pavement for 30 years, so a ?65 fine seems pretty good value, considering"Don't care if I get caught again, if it's safe enough and clear i'll be on there Link to comment https://www.eastdulwichforum.co.uk/topic/36063-cycling-on-the-pavement/page/18/#findComment-711117 Share on other sites More sharing options...
Jonathan62 Posted January 13, 2014 Share Posted January 13, 2014 As you wrongly stated that statements were law; and could be subject to JR you gave the impression that laws could be subject to the same. Link to comment https://www.eastdulwichforum.co.uk/topic/36063-cycling-on-the-pavement/page/18/#findComment-711120 Share on other sites More sharing options...
Otta Posted January 13, 2014 Share Posted January 13, 2014 mynamehere Wrote:-------------------------------------------------------> 5 volunteers needed from Southwark.> A deputation is scheduled to Southwark Council> pressing for better cycling facilities on the> evening of 22nd January, on behalf of Stop Killing> Cyclists.> The theme of the meeting is active lives for older> people and so will be pointing out the need for> safer cycling infrastructure needed for older> people.> Very few pensioners cycling in London - yet in> other cities like Tokyo loads of pensioners cycle,> due to fact it is easier to cycle on sore joints> than it is to walk and the safe infrastructure> allows them to do so.> You would not have to talk, 6 people are needed to> part of a groupIn all seriousness, when looking in to this, can you please consider older people having regular sight tests. Many people shouldn't continue driving as they get older and their sight gets worse, LOTS of poeple shouldn't be bombing it along the pavements on mobility scooters, and whilst I totally agree that more older people should benefit from cycling, I think this needs to be considered. Link to comment https://www.eastdulwichforum.co.uk/topic/36063-cycling-on-the-pavement/page/18/#findComment-711121 Share on other sites More sharing options...
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