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 Post subject: Re: section 59 warning
PostPosted: Thu Apr 23, 2009 7:02 pm 
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See my post

viewtopic.php?f=34&t=42&start=10


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 Post subject: Re: section 59 warning
PostPosted: Thu Apr 23, 2009 7:20 pm 
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Hickin wrote:
:ugeek:
As has already been posted it looks like you are a victim of poor police action in the issueing of a section 59 caution.
:(
As a National body we are unable to take any decisive action in this or any other case of this nature other than to provide advice to indeviduals who are wrongly issued with such cautions.
Advice was published in Trail to inform all members as to the requirements of Section 59 offences but in all cases it is the indevidual who in the firt instance has to appeal the issue of the caution, and that is what you need to do.
:evil:
If we are made aware that a particular police force is abusing the Section 59 process then we would at a National level be making representations to that force on behalf of all our members.
In this case it looks like poor policing on behalf of the officers involved.


Hickin,

Do you have a copy of that Trail Advice article that can be posted on the Members Area RoW section

SB


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 Post subject: Re: section 59 warning
PostPosted: Sat May 16, 2009 10:57 am 
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It is my understanding that once a s.59 written warning has been issued that any that are subsequent could involve the seizing of the vehicle & possible crushing thereof. I have not heard of this drastic action yet & no doubt there will be a precedent set if this went to court should any police force see fit to try this on.

As an aside, I have heard of people being given s.59 warnings where they have been on a perfectly legal Byway or other route. I have stated to Kent group members that if this were ever the case, to bring it to our attention & we would set the wheels in motion to write a covering letter with the members letter of complaint so as to have the notice withdrawn. I think that if such a case were to be taken to court that the CPS would hastily withdraw as they do not like ending up with egg on their faces in front of any court. This underlines one of the benefits of membership.

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 Post subject: Re: section 59 warning
PostPosted: Mon May 18, 2009 10:11 am 
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TimG wrote:
I think that if such a case were to be taken to court that the CPS would hastily withdraw as they do not like ending up with egg on their faces in front of any court.


More to the point they probably would not sanction the wasting of public money on cases they're likely to lose or where legality is either questionable or a rider has the benefit of the doubt. Local coppers are likely to be underinformed and a trail rider should be riding within the limits of his or her knowledge. Preventing s.59s is the way to go - is it not?


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 Post subject: Re: section 59 warning
PostPosted: Mon May 18, 2009 4:15 pm 
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Folks,

You can't be taken to a criminal court for a S59 warning. It is just that, a power to stop and issue a warning and on a second occasion to seize the vehicle. S59 IS NOT AN OFFENCE.

One might argue that if the officer is applying S59, then why is'nt the rider reported for the offence of ridng elsewhere than on a road or without due care, as this is a requirement before the warning can be triggered.

CPS would not prosecute a s59 offence, as it is not an offence.

The only course for redress would appear to be in the civil courts and an action against the relevant force for reimbersement of the recovery costs.

Never been done yet, but I think it's a goer.

Bozz


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 Post subject: Re: section 59 warning
PostPosted: Fri Feb 12, 2010 11:16 pm 
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Yep..I've been harping on about this for a few years now... and posted up a long string on the old site!

Tried to get a centerfold advice for trail riding in Trail produced so that members could take it out, laminate it and carry with them... but to no avail so far... :cry:

Basically s59 is one of those Laws that was rushed out to deal with a "political " issue and be seen to be doing something about yoblets riding mini motos in parks etc...

You only have to have a look at the Police forums and the "Specials" forum to see some of the interesting thoughts voiced by those who should have training in it's application.

I even noticed that Janes Police Review had a Sgt's promotion exam question on it and got it wrong! :?

As it stands there is:
No built in ability to appeal on a warning.
No proper training or conformity as to what it means.
No way of finding out if you already have a warning registered against you or your bike on the Police National Computer. Except if you are lucky to be told about it following a comlaint against police, and then they DONT have to tell you whats on the PNC without a lengthy Court Action.
No way of finding out if the bike you buy already has one. Police wont tell you and HPi check doesnt find it..
No way of finding out if your registration number has been taken off a photo on some forum and used by an anti to phone in a complaint.
No way of finding out the strength of the information used to give you the s59 warning if from a third party complaint.
No specific wording to state what standard of evidence is required following a complaint to police resulting in a s59 warning...

If you are reported to police by a member of the public, it is the police officers own decision, based on what he or she is told as to whether or not a s59 warning is recorded against your registration plate.
There is no need for any written statement from a witness and indeed only a simple form for the police officer/PCSO to fill out.
You are not as a requirement, written to as the registered keeper of the vehicle concerned.

Different police areas have different criteria and local instructions for issuing them, different training and often a different understanding of what it means!

There are other overlaps.. A John Smith could be reported for a s59 warning, you might be a John Smith later stopped by a police officer.. there is no way of discovering if you are or are not the same John Smith. If you are in a remote area there be no way (AirWaves link) for a police officer to confirm details anyway.
If the member of the public reports a bike and gets a single letter or number wrong then it might be YOU who gets the s59 warning registered on the PNC.
They dont always let you know and the Act doesnt say they have to...

Case in point a bike owned by a well know trail riding company was seized by police because it had a previous s59 warning against it's registration. Unlucky for the paying customer who was riding it at the time as he now has a s59 warning against him as well and was left out on the trails without the bike he had hired!

The Act actually says the police officer does NOT have to seize the vehicle even on a second occasion if they think their request to stop is heeded and the antisocial action ceases... Indeed if he/she thinks their first warning wont stop you continuing the anti social behaviour/alarm/distress they can seize the vehicle on the FIRST warning!

Also the Act states that a police officer in uniform can go to the registered keepers address or any other property within 24hrs of a second s59 warning and enter any property other than a dwelling house, to seize the vehicle..without warrant and on the strength of third party verbal information...

BUT even if you have your bike seized remember that if it is road legal, taxed, insured, MOT'd and road worthy and you or whoever else picks it up, has a valid licence you can get it back by just paying the recovery fee. Vehicles can only be crushed under seperate legislation, not because of a s59 warning or seizure...

Also you have to be doing two things... Committing a Road Traffic offence..riding elsewhere other than on a road (including a Restricted Byway), riding without due care, recless or dangerous.. AND ALSO causing alarm, distress, annoyance to a member of the public. Not might do so, but IS/HAS done so...

I.E. you cant get a s59 warning for just being on a Restricted Byway, especially if it is used by other vehicles legally, farmer etc.. Police vehicle...

A Restricted Byway is a ROAD under the Road Traffic Act.

In order to commit an offence of without due care, dangerous or recless etc.. you would also be guilty of it if it were the local High Street in Town...

You can also cause alarm, distress and annoyance and as long as you are riding normally as if it were a normal surfaced road but depending on the conditions at the time then it is NOT an offence.

This is why the S59 legislation is bad law... OK for what it was intended to be used for but this is not why it was created in a rush...

If you are riding normally, even on a Restricted Byway you cant..or rather SHOULD NOT get a s59 warning.. if you dont have a legal authority to be there or acting on one of the allowances built into the NERC Act then it should be a Fixed Penalty Ticket, £40 and NO POINTS...

If you are "riding off" road on PUBLIC land, footpath, bridleway etc..without reasonable excuse or lawful authority then again it's a fixed penalty ticket if you are riding safely and reasonably for the conditions..

If you are on PRIVATE LAND then that's another matter..Road Traffic Act, s59 might not apply depending on the circumstances.. if it's an area open to the general public then it might be... I.E. car park..

Again s59... it's bad law, abused, used for the wrong reasons, used by people who have not real understanding..

Be careful. Just be glad you are in the TRF with people like Boz who care and people who will help. ;)

_________________
ANDY.T

2005 KTM 525MXC (34,000 miles so far)
2005 KTM 250EXC (11,500 miles so far)
BMW R100 awaiting time to convert to 1980's HPN GS PD Replica.
All useful parts wanted ;)
Need :USD DRZ E front end complete & GS petrol tank.


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 Post subject: Re: section 59 warning
PostPosted: Sat Feb 13, 2010 9:56 am 
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Sorry, Andy, what does this bit mean?

"You can also cause alarm, distress and annoyance and as long as you are riding normally as if it were a normal surfaced road but depending on the conditions at the time then it is NOT an offence."

Thanks.


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 Post subject: Re: section 59 warning
PostPosted: Mon Feb 15, 2010 5:44 pm 
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Joined: Tue Feb 24, 2009 1:04 pm
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ANDY.T wrote:
Yep..I've been harping on about this for a few years now... and posted up a long string on the old site!

Tried to get a centerfold advice for trail riding in Trail produced so that members could take it out, laminate it and carry with them... but to no avail so far... :cry:

Basically s59 is one of those Laws that was rushed out to deal with a "political " issue and be seen to be doing something about yoblets riding mini motos in parks etc...

You only have to have a look at the Police forums and the "Specials" forum to see some of the interesting thoughts voiced by those who should have training in it's application.

I even noticed that Janes Police Review had a Sgt's promotion exam question on it and got it wrong! :?

As it stands there is:
No built in ability to appeal on a warning.
No proper training or conformity as to what it means.
No way of finding out if you already have a warning registered against you or your bike on the Police National Computer. Except if you are lucky to be told about it following a comlaint against police, and then they DONT have to tell you whats on the PNC without a lengthy Court Action.
No way of finding out if the bike you buy already has one. Police wont tell you and HPi check doesnt find it..
No way of finding out if your registration number has been taken off a photo on some forum and used by an anti to phone in a complaint.
No way of finding out the strength of the information used to give you the s59 warning if from a third party complaint.
No specific wording to state what standard of evidence is required following a complaint to police resulting in a s59 warning...

If you are reported to police by a member of the public, it is the police officers own decision, based on what he or she is told as to whether or not a s59 warning is recorded against your registration plate.
There is no need for any written statement from a witness and indeed only a simple form for the police officer/PCSO to fill out.
You are not as a requirement, written to as the registered keeper of the vehicle concerned.

Different police areas have different criteria and local instructions for issuing them, different training and often a different understanding of what it means!

There are other overlaps.. A John Smith could be reported for a s59 warning, you might be a John Smith later stopped by a police officer.. there is no way of discovering if you are or are not the same John Smith. If you are in a remote area there be no way (AirWaves link) for a police officer to confirm details anyway.
If the member of the public reports a bike and gets a single letter or number wrong then it might be YOU who gets the s59 warning registered on the PNC.
They dont always let you know and the Act doesnt say they have to...

Case in point a bike owned by a well know trail riding company was seized by police because it had a previous s59 warning against it's registration. Unlucky for the paying customer who was riding it at the time as he now has a s59 warning against him as well and was left out on the trails without the bike he had hired!

The Act actually says the police officer does NOT have to seize the vehicle even on a second occasion if they think their request to stop is heeded and the antisocial action ceases... Indeed if he/she thinks their first warning wont stop you continuing the anti social behaviour/alarm/distress they can seize the vehicle on the FIRST warning!

Also the Act states that a police officer in uniform can go to the registered keepers address or any other property within 24hrs of a second s59 warning and enter any property other than a dwelling house, to seize the vehicle..without warrant and on the strength of third party verbal information...

BUT even if you have your bike seized remember that if it is road legal, taxed, insured, MOT'd and road worthy and you or whoever else picks it up, has a valid licence you can get it back by just paying the recovery fee. Vehicles can only be crushed under seperate legislation, not because of a s59 warning or seizure...

Also you have to be doing two things... Committing a Road Traffic offence..riding elsewhere other than on a road (including a Restricted Byway), riding without due care, recless or dangerous.. AND ALSO causing alarm, distress, annoyance to a member of the public. Not might do so, but IS/HAS done so...

I.E. you cant get a s59 warning for just being on a Restricted Byway, especially if it is used by other vehicles legally, farmer etc.. Police vehicle...

A Restricted Byway is a ROAD under the Road Traffic Act.

In order to commit an offence of without due care, dangerous or recless etc.. you would also be guilty of it if it were the local High Street in Town...

You can also cause alarm, distress and annoyance and as long as you are riding normally as if it were a normal surfaced road but depending on the conditions at the time then it is NOT an offence.

This is why the S59 legislation is bad law... OK for what it was intended to be used for but this is not why it was created in a rush...

If you are riding normally, even on a Restricted Byway you cant..or rather SHOULD NOT get a s59 warning.. if you dont have a legal authority to be there or acting on one of the allowances built into the NERC Act then it should be a Fixed Penalty Ticket, £40 and NO POINTS...

If you are "riding off" road on PUBLIC land, footpath, bridleway etc..without reasonable excuse or lawful authority then again it's a fixed penalty ticket if you are riding safely and reasonably for the conditions..

If you are on PRIVATE LAND then that's another matter..Road Traffic Act, s59 might not apply depending on the circumstances.. if it's an area open to the general public then it might be... I.E. car park..

Again s59... it's bad law, abused, used for the wrong reasons, used by people who have not real understanding..

Be careful. Just be glad you are in the TRF with people like Boz who care and people who will help. ;)


Hi Andy,

If you have produced the 'Pull out' that you refer to, can you send me the file and I will find out why it has been pushed to one side, and I will also look at putting the guide on the website for members to download and laminate if required.

Regards

Simon


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 Post subject: Re: section 59 warning
PostPosted: Tue Feb 16, 2010 5:37 pm 
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Hi trfit,

It amounted to a copy of the Act showing what the law was, and some advice on how to deal with incidents where you were "stopped" out on the trails..

It's OK to voice opinions on the forum and get interest and replies going..

However for a pull out advice note there would have to be some professional and qualified advice on it's content. (Also probably a disclaimer)

Having been directly involved with a Court Case that resulted from two trail riders being stopped, I fully understand the issues on getting a Fixed Penalty Ticket or being summons to Court for the offence...

S59 adds to the mix.. it is bad law and unfortunately different police areas take a different approach to what it means, how to use it and the practical system of implementation. I found more than 11 differing approaches and different guidance of how to use it published by different police areas in England & Wales.

The idea of a pull out centrefold for trail riders was to have the written Act & Section, an explanation and a brief of the rights of both the police, public and the trail rider concerned...

In some cases it could be preferable to get a Fixed Penalty Ticket for riding on a lane, even when you know you are in the right..as it is non endorceable (No penalty points) is not a crime (No criminal conviction) and is not accumulative (No limit to the number of tickets the fine/penalty remains the same).

But with s59 you have no say once it's been given and no right to appeal and the idea would be to persuade the police officer not to give it in the first place. A simple way would be to have the legislation and a confirmed legal guide as to what it means to hand...

It is one of those things that needs to be raised at a National Meeting to seek some professional legal advice, confirm the content of the centrefold and get it all signed off before issue. I would expect that a letter from ACPO accepting the content of the advice would go a long way to "protecting" trail riders on the lanes.

I'll have a look on the old PC and see if the posts are still saved. I'll draft a short guide and then submit for peer checking and possibly the OK to get some proper legal advice, then send a copy to ACPO for an official comment. ;)

_________________
ANDY.T

2005 KTM 525MXC (34,000 miles so far)
2005 KTM 250EXC (11,500 miles so far)
BMW R100 awaiting time to convert to 1980's HPN GS PD Replica.
All useful parts wanted ;)
Need :USD DRZ E front end complete & GS petrol tank.


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 Post subject: Re: section 59 warning
PostPosted: Tue Feb 16, 2010 10:55 pm 
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Joined: Mon Apr 06, 2009 10:57 pm
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Location: Blackpool
I did something for our group with the main bullet points on both sides of a laminated A6 card to keep in your pocket or camel back. Details are here but obviously you use it at your own risk!

http://lancashiretrf.free-forums.org/vp463.html#p463

If we can get an official TRF version, even better. :D

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Tony Davenport
Lancashire Group
http://lancashiretrf.free-forums.org/


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