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 Post subject: Failure to comply with a TRO
PostPosted: Thu Apr 09, 2009 6:14 pm 
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In the Rights of Way/Restrictions and Obstructions section of this website it states.....
"Failure to comply with a Traffic Regulation Order is a criminal offence and can attract a fine of up to £1,000."

In this months Trail, Robin Hickin has written an excellent ROW summary that states.....
"TRO’s do not carry a criminal conviction if caught and prosecuted. It is the same as going the wrong way up a one way street, you are ignoring a road traffic sign."

I am inclined to think Robins viewpoint i.e. not a criminal offence, sounds the more sensible but can any RoW experts confirm which is correct?

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 Post subject: Re: Failure to comply with a TRO
PostPosted: Thu Apr 09, 2009 8:05 pm 
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Well, I wrote that so I had better respond.

Err, but your gonna have to wait because I'm going swimming now so I'll be back later.

Cheers

Richard


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 Post subject: Re: Failure to comply with a TRO
PostPosted: Thu Apr 09, 2009 8:16 pm 
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DOES NOT carry a criminal record:
Quote:
Fixed penalty notices
Fixed penalty notices are given for less serious offences such as parking tickets, speeding, graffiti and public disorder. Instead of prosecution, a fixed sum of money must be paid to a Magistrates' Court. Because the offence is assumed and there's no conviction you won't get a criminal record. You can also choose whether to pay the penalty or to contest the case.

Quote:
Penalty notices are not the same as criminal convictions. However, failure to pay your fine may result in higher fines, or imprisonment.




Road Traffic Offenders Act 1988

Schedule 3 - Fixed Penalty Notices
Quote:

RTRA section 5(1) Using a vehicle in contravention of a traffic regulation order outside Greater London.


from here:

http://www.statutelaw.gov.uk/content.as ... size=30534

and here:

http://www.homeoffice.gov.uk/anti-socia ... y-notices/

and here:

http://www.cjsonline.gov.uk/offender/co ... cing/fine/

In summary then,they are both right ;)


Last edited by jazzy on Thu Apr 09, 2009 9:18 pm, edited 2 times in total.

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 Post subject: Re: Failure to comply with a TRO
PostPosted: Thu Apr 09, 2009 8:59 pm 
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bit more info:

level three on the standard scale is a £1000 fine

http://www.statutelaw.gov.uk/content.as ... size=11799

however a FPN fine is £30.

Don't forget only a constable in uniform can stop you, and issue a FPN.


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 Post subject: Re: Failure to comply with a TRO
PostPosted: Thu Apr 09, 2009 9:13 pm 
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this looks quite interesting:

http://www.penaltychargesforum.co.uk/sh ... hp?t=44321
Quote:
What is a traffic regulation order?

A Traffic regulation order is a legal document made by a local authority, under its powers as a highway authority, that enables the local authority to introduce parking restrictions, speed limits, one-way streets, banned turns, disabled parking bays, width restrictions, weight limits, vehicular traffic restrictions, parking bays and to close roads for construction works, maintenance or special events. Failure to comply with the requirements of a traffic order, as indicated by signs or road markings, is an offence that results in prosecution by the Police and/or the local authority.How are they implemented? A formal TRO requires a statutory procedure to be followed. This includes:

1. Consultation - Following the completion of the design, consultation must be undertaken. This will require obtaining the views of Local Councilors and Parish Councils (where appropriate), the Emergency Services and sometimes other institutions such as The Freight Transport Association, The Road Haulage Association and local public transport operators. Local interest groups such as residents, traders and community groups who are likely to be affected by the proposals may also be consulted where appropriate. The proposal could then be amended following consultation.

2. Advertisement of the TRO then takes place. This includes at least one notice in the local press. The Council will usually display notices in any roads that are affected and, if it is deemed appropriate, may deliver notices to premises likely to be affected. For at least 21 days from the start of the notice the proposal can be viewed at a nominated council office during normal office hours. Objections to the proposals and comments of support must be made in writing to the address specified in the notice or submitted on-line during this period. Substantial objections and contentious issues are then reported to and considered by Local Councilors. When considering the objections they must decide whether to (a) allow the scheme to proceed as advertised, (b) modify the scheme, or (c) abandon it.

3. Making the Order - The TRO can then be formally sealed providing all standing objections have been considered. Modifications to the proposals resulting from objections could require further consultation. This procedure can take many months to complete and the advertising and legal fees can be substantial. For this reason schemes requiring a TRO normally need to be included in the annual Capital Programme and cannot be carried out on an ad hoc basis.
Occasionally temporary orders or experimental orders are introduced which require a slightly different process which still gives people an opportunity to put forward their views.


Temporary Orders may be used when works affecting the highway require short-term traffic restrictions.


Experimental Orders are used in situations that need monitoring and reviewing. These usually last no more than eighteen months before they are abandoned, amended or made permanent.

Grounds for defenence
Many TROs are flawed and incorrectly drafted by the local authority. Always request a copy of the TRO if you are intending to appeal (you can do so under the Freedom of Information Act) and compare the restriction in the TRO with the on-street restriction.
On-street measurements may not match those in the TRO and that will invalidate the TRO.
It is a requirement of all local authorities (after 1995) that all measurements in their public documents are indicated in metric. Some local authorities have failed to do this..
It is a requirement under section 18 of the Local Authority Traffic Order (Procedure) (England and Wales) Regulations 1996 that all signs and lines are correct before a TRO can come into force. Therefore, for example if a sign is missing or a bay is incorrectly marked then the TRO, although made by the local authority, cannot be in force until the restriction is correctly marked. This could mean that ALL motorists fined at this location are entitled to refunds as there has been no restriction in force.


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 Post subject: Re: Failure to comply with a TRO
PostPosted: Thu Apr 09, 2009 11:21 pm 
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You b****r :D :D :D

I just spent ages looking that all up in the blue book and on line and you've gone and stolen my thunder!!!!!

10 out of 10 though, good work ;)

On a serious note though, I think the confusion here comes not from what Robin has said but rather from what he has not said.

I think there is a very important distinction to make here.

Robin appears, quite reasonably to have assumed that the most likely outcome of contravening a TRO would be a fixed penalty notice. As explained above by Jazzy that is a £30 pound, non endorsable fine that would not result in a criminal record but.....

That is not the only possible outcome!

The police are not required to use, or offer you a fixed penalty notice that is entirely at their discretion. Yes, if a police office just happens to spot you riding out of a TROed lane by chance this will be an attractive option because it represents a lot less work for them and deals effectively with the matter in hand but be warned!

We know from recent experience in several counties that the police (and possibly the CPS) are suseptible to political pressure when dealing with this kind of issue. I see no particular reason why this should not attract the same kind of response as a s34 RTA matter.

One other point to bear in mind. The police and I believe PCSOs can issue fixed penalty notices but it may not necessarily be the police who bring the prosecution. I have it on good authority that a certain county council are currently pursuing a number of prosecutions for "contravening a TRO" themselves. One reason for this may be that they were not satisfied that the approach taken by the police was sufficiently robust.

Thats to say that they may not consider a £30 fixed penalty to be a sufficient deterent and want to ensure that it goes to court where the fine will inevitably be higher (+ costs of course).

Understandably the authority in question are not willing to give any more detail about this matter (ie who has been caught, where, how or exactly what offences they are going to face) but it will be intersting to see what the outcome is.

Hope that clears it up a bit and thanks for the question, that was a good one.

I'll have to watch that jazzy as well, looks like he's after my job (now all I have to do is work out who it is ;) ).

Cheers

Richard


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 Post subject: Re: Failure to comply with a TRO
PostPosted: Fri Apr 10, 2009 11:07 am 
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Thanks for the reply Richard. So am I right in thinking that if a fixed penalty is issued it is not recorded as a criminal offence, but if it goes to court it is recorded as a criminal conviction (if found guilty)?

I always assumed (probably like a lot of people) that minor road traffic offences were not proper criminal offences, only major offences that attracted a possible prison sentence such as DUI or dangerous driving.

Perhaps the wording on the website should say "could be a criminal offence" or "likely to be a criminal offence" rather than "is a criminal offence"?

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 Post subject: Re: Failure to comply with a TRO
PostPosted: Fri Apr 10, 2009 7:48 pm 
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I suppose I better put this in perspective. Regardless of the method of prosecution ie; a non endorsable fixed penalty OR summonsed to court, the result is the same - A CONVICTION IS NOT A CRIMINAL RECORD, DOES NOT HAVE TO BE DISCLOSED FOR FUTURE EMPLOYMENT AND DOES NOT RESULT IN YOUR DETAILS BEING RECORDED ON THE POLICE NATIONAL COMPUTER AND YOU ALLOCATED A CRIMINAL RECORDS NUMBER. IT CAN ONLY EVER RESULT IN A FINE ONLY.

Local authorities cannot prosecute people on criminal issues. Contravening a TRO is not de criminalised. It has to be prosecuted through the magistrates court and the only prosecuting agency in these circumstances is the crown prosecution service. The local authority may report facts to the police to investiagte and after their investigation it is the police who submit information to the CPS.

Interesting thoughts though are'nt they. Like I said on the presentation, a completely new arena for future debate and battle.

There is virtually no case law in the criminal courts surrounding TROs. My view is that the TRF should be exploring a number of issues surrounding TRO in consultation with criminal experts. The executive is made up of THE leading RoW people, people who are experts and have tremendous knowledge of highway law and the process involved in public enquiries where the argument for both sides is on the battle of probabilities.

The magistrates court places a much higher onus on the prosecution to prove its case beyond all reasonable doubt. Is the TRO lawful - have all steps been followed, what happens if the local authority are in receipt of information which clearly shows that the grounds for the TRO no longer exist? They are always under a higher and continuous duty under s130 to assert and protect my rights. In this scenario is the TRO unlawful? If I use the road, do I have a defence? Can I call the rights of way officer to the court and demonstrate that my rights are not being protected and asserted in these circumstances and that the local authoritiy are in breach of a legal duty?

The point I am making is that we would not be arguing with an authority in these circumstances, we would be in a magistrates court and the prosecution would have to show evidence of a higher proof than I would.

The time has come to pull together the experts we have, to speak to an expert in criminal law, combine the experience and prepare for future battles and be in the best position we can be to defend our membership.

As always, it is about options, you might be advised to pay the fine BUT the advice in certain circumstances may be that there is a credible defence, that the CPS will be reluctant to call expert witnesses from the rights of way department because they cannot present evidence beyond all reasonable doubt the vehicular rights do not exist/TRO were made and remain on a lawful basis.

But I believe we are not prepared at this time. We should be because the new arena will be magistrates courts and the rules are totally different.


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 Post subject: Re: Failure to comply with a TRO
PostPosted: Sat Apr 11, 2009 9:31 pm 
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Yes I agree completely.

Our knowledge of Row is extensive but our knowledge of criminal law and the magistrates court is extremely limited.

Your comments about Local authorities not being able to present evidence to the CPS is intetresting though because that was exactly what I thought the authority I'd refered to was planning to do. I assumed they knew what their options were (they have enough lawyers to call upon) but perhaps not.

Still, like I say it will be interesting to see what happens with this case.

By the way, as far as I know it doesn't involve TRF people, unless they are keeping it very quiet????

Cheers

Richard


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 Post subject: Re: Failure to comply with a TRO
PostPosted: Mon Apr 13, 2009 4:28 am 
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Rich,

To be clear, a representative from the local authority can make a complaint, but would make this to the police. CPS will not carry out a criminal investigation. That is the job of the police. The police submit the evidence and CPS assess it. They then take a decision whether to prosecute, return to the officer who is dealing for further work that maybe required or make a decision to not proceed based on their test criteria(not in the public interest for example)

Bozz


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