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Logic Law

Statutory Powers:

.....(a) Ultra Vires doctrine.

.....(b) The motoring public. Compliance with conditions attached to powers

.....(c) I do not think we are entitled to play fast and loose

.....(d) In notices affecting private rights,

.....(d) It is imperative that the public can have confidence

.....(e) Reasonable Expectations.

Non-statutory controls

Some of the non-statutory controls are:

.....(a) The Wednesbury principle; Wednesbury unreasonableness

.....(b) Rules of natural justice, see just below.

.....(c) Proportionality (See Teri Oat Estates (P) Ltd. v. Union Territory, Chandigarh11, Union of India v. Rajesh P.U.12, etc.)

.....(d) Promissory estoppel

.....(e) Legitimate expectation

Rules of Natural Justice (top)

.....(a) Audi alteram partem.

.....(b) The rule against bias.

.....(c) Unwritten rule of the law.

Criminal Law:

.....(a) The ultimate guardian of the fairness.

.....(b) The elements of a crime: Actus Reus and Mens Rea

Law:

.....(a) Negligence - Duty of care.

.....(b) The Caparo Test.

.....(c) 'contradictio in adiecto', contradiction in terms.

.....(d) Rulings in motoring cases.

Proportionality. (Quoting from ) (top)

.....(a) The Traffic Management and Parking Guidance for London issued by the Secretary of State in February 1998, para 4.5.

.....(b) Joint Report of the Parking Adjudicators of England and Wales for 2004:-

.....(c) The Chief Parking Adjudicator for England and Wales has recently referred to clamping as “draconian” and commented

Statutory controls are given in the statute (or rules or regulations made under the statute). Any executive action in violation of the same will be declared illegal by the courts, by applying the ultra vires doctrine.

(a) Ultra Vires doctrine. In administrative law, an act may be judicially reviewable ultra vires in a narrow or broad sense. Narrow ultra vires applies if an administrator did not have the substantive power to make a decision or it was wrought with procedural defects. Broad ultra vires applies if there is an abuse of power (e.g., Wednesbury unreasonableness or bad faith) or a failure to exercise an administrative discretion (e.g., acting at the behest of another or unlawfully applying a government policy). Either doctrine may entitle a claimant to various prerogative writs, equitable remedies or statutory orders if they are satisfied.

The motoring public deserves nothing less than that the public authorities exercising penal powers understand the importance of their complying with the conditions attached to their powers and are scrupulous about having in place administrative processes that do so. These sentiments apply to every stage of the enforcement process, not just the issue of a valid PCN. The Parking Adjudicators have had cause in their annual report on more than one occasion to comment on procedural irregularities that have come to their attention in appeals. “The Association of London Government Transport and Environment Committee 2002-2003 Chief adjudicator’s foreword”

'I do not think we are entitled to play fast and loose with statutory requirements designed to inform the subject as to his legal rights against an authority possessed of compulsory powers...........I do not think that prescriptions for the benefit of the subject are to be so disregarded. Lord Hailsham's judgment in London & Clydesdale:.

'In notices affecting private rights, particularly where the effect is penal, scrupulous observance of statutory conditions is normally required....An enforcement notice is void if it fails to state, as it should, the time allowed for compliance.' Wade & Forsyth: Administrative Law (8th Edn.) page 230.

It is imperative that the public can have confidence in the fairness and propriety of the enforcement of parking controls.'

It is up to local councils to ensure their PCNs are drafted in compliance with the Statute. These appeals show only too clearly that the findings and concerns of the Adjudicators over several years have been disregarded - - a most unattractive basis for asserting good administration. Moulder v Sutton LBC (PATAS Case No. 1940113243 24 May 1995) and in Royal Courts of Justice 2nd August 2006. Mr Justice Jackson.

It is imperative that the public can have confidence in the fairness and propriety of the enforcement of parking controls. It is also relevant that the penalties for parking contraventions are relatively low. It is very undesirable in those circumstances for the imposition of those penalties to be attended by uncertainties about its legality for procedural reasons. What is required is simplicity, clarity and certainty. London Borough of Wandsworth v Al's Bar & Restuarant Ltd

Reasonable expectations. Members of the public have a perfectly reasonable expectation from their local councils to uphold the law, and to do so with tolerance and understanding. Ignorance of the law for council's employing qualified legal practitioners is inexcusable. Scrupulous compliance is required especially when serving derogations on the motoring public, and even more when enforcements lead to increase in the penalties, and bailiff distraint. The growth of incentivised delivery of PCN,s, particularly those concerning trivial excess in contravention, has revealed an unequivocal disregard for professionally compliant documentation, concomitant with awareness of wilful omissions that are contrary to expressly stated mandates in statute. Such a code of conduct is reprehensible, and should render the offending party to liability for remedial reimbursement and damages. Leaving aside specific mention of a litany of cases where delivery of PCN's is not merely non compliant, but clearly intolerant, inhumane, unwarranted and fraudulent, in areas of enforcement where, among others, there is absence of proper signage, waiving any discretionary period of grace, waiving discretion used to enforce or cancel PCN's consistently, and where the motorist is deliberately kept in ignorance of the prevailing local 'traffic regulation orders', such that offences deemed to be contraventions may be quite the contrary.

Asymmetry of knowledge must be eschewed by the greater owner, and may not be used in abrogation of a duty of care in noblesse oblige, nor as an abuse of the inherent power advantaged and derivative of such asymmetries. It is the duty of a judicial controller or observer in any capacity, to avoid the choice of dereliction of duty in cloaked omissions, as a matter of self esteem and integrity, in making known any valid argument form, that acts as a bridle to such abuses, or indeed to merely adhere to the relevant Hippocratic oath for the professional function and capacity at the relevant time, rather than the Hippocritic oath to serve a hidden agenda. In such matters, Truth overrides Proof. Questor. © (top)

The Wednesbury Principle, A person entrusted with discretion must, so to speak, direct himself properly in law. He must call his attention to matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules he may truly be said to be acting unreasonably. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority.

Wednesbury unreasonableness is unreasonableness of an administrative decision that is so extreme that courts may intervene to correct it. The term derives from Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 KB 223, where the court stated that it would not intervene to correct a bad administrative decision on grounds of its unreasonableness unless the decision was, as articulated in Council of Civil Service Unions v. Minister for the Civil Service (the GCHQ case) [1985] AC 374, 410 per Lord Diplock, "So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it." ... Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 KB 223

Rules of natural justice

(a) Audi alteram partem i.e. the person(s) to be affected by an order of the authority should be heard before the order is passed, This view of the House of Lords was followed by the Supreme Court in State of Orissa v. Dr. Binapani, and State of Maharashtra v. Jalgaon Municipal, wherein it was held that administrative orders which involve civil consequences have to be passed consistently with the rules of natural justice. The expression "civil consequences" means where rights and liabilities are affected. Thus, before blacklisting a person he must be given a hearing.

(b) The rule against bias. The principle that "no man should be a judge in his own cause" disqualifies an Administrator from giving a decision which affects the rights and liabilities, if he is biased. The requirement to give reasons in administrative decisions which affect rights and liabilities has been held to be mandatory by the Supreme Court in S.N. Mukherjee v. Union of India. This reduces the chances of arbitrariness on the part of the authority, as the reasons recorded by him are subject to judicial scrutiny by the higher courts or authorities. (top)

It is an unwritten rule of the law, constitutional and administrative, that whenever a decision-making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote.

“The ultimate guardian of the fairness of the proceedings was the trial judge who had been clearly apprised of the real difficulties which the absence of interpretation might create for the applicant. It further observes that the domestic courts have already taken the view that in circumstances such as those in the instant case, judges are required to treat an accused’s interest with“scrupulous care”. HOUSE OF LORDS European Union Committee 1st Report of Session 2004-05 Procedural Rights in Criminal Proceedings. 38 The judgment.

Doctrine of ultra vires: "ought to be reasonably, and not unreasonably, understood and applied, and that whatever may fairly be regarded as incidental to, or consequential upon, those things which the Legislature has authorized, ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires." Lord Templeman, with whose speech the other members of the House agreed, also stated in the immediately preceding passage that section 111(1) embodies the principles relating to the powers of a company set out in Attorney General v Great Eastern Railway Co (1880) 5 App Cas 473. Lord Selborne LC said in that case, at p 478. Lord Blackburn said, at p 481: "where there is an Act of Parliament creating a corporation for a particular purpose, and giving it powers for that particular purpose, what it does not expressly or impliedly authorize is to be taken to be prohibited … those things which are incident to, and may reasonably and properly be done under the main purpose, though they may not be literally within it, would not be prohibited." (top)

The elements of a crime: Actus Reus and Mens Rea. As has been noted above in the case of dangerous driving, fault elements that do not require reference to the defendant’s state of mind are used. At common law this can be seen in the offence of killing by gross negligence. In R v Adomako [1994] 3 WLR288, Lord Mackay LC explained that liability would be established if the prosecution could prove that the defendant’s conduct departed from the proper standard of care incumbent upon him, thereby creating a risk of death, and involved such a departure from acceptable standards of care as to deserve the stigma of criminalisation. As was made clear in Attorney General’s Reference (No. 2 of 1999) [2000] 3 All ER 182, evidence of the defendant’s state of mind might be useful in guiding a jury as to whether or notthe negligence was gross, but this fault element can be made out without any direct evidence as to the defendant’s state of mind. Whilst this may seem to run counter to the trend in favour of subjectivity it should be remembered that it serves a useful social purpose in making it easier to impose criminal liability on companies that kill. In summary, therefore, it is undoubtedly true to say that mens rea does involve an examination of the defendant’s state of mind to ascertain a degree of awareness of the consequences of his actions. The law will, however, allow departures from this where the social utility and fairness of so doing is apparent.

Negligence - Duty of care. "The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question." .....Donoghue v Stevenson [1932] AC 562, Lord Atkin attempted to lay down a general principle which would cover all the circumstances where the courts had already held that there could be liability for negligence.

Lord Wilberforce accepts what might be seen as the high point of the adoption of the statements of Lord Atkin in Donoghue v Stevenson. He says: - ‘Through the trilogy of cases in this House, Donoghue v Stevenson, Hedley Byrne & Co Ltd v Heller v Partners Ltd and Home Office v Dorset Yacht Co Ltd, the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise’.

The Caparo test –

The three-stage 'Caparo' test required:

• foreseeability of damage

• a relationship characterised by the law as one of proximity or neighbourhood; and

• that the situation should be one in which the court considers it would be fair just and reasonable that the law should impose a duty of given scope on one party for the benefit of the other.

• `Proximity' in this case means legal, not physical, proximity. The claimant and the defendant are in proximity if there is some sort of relationship, interaction, or dependency between them. Many writers have pointed out that the criteria in Caparo do overlap somewhat. Of course there are many situations where a duty of care may be assumed to exist, and it won't be necessary to invoke the Caparo test. For example, no-one would dispute that road users owe a duty of care to other road users. Moreover, there are situations where the duty of care is imposed by statute; see, for example, the Occupiers Liability Act 1957. (top)

The Traffic Management and Parking Guidance for London issued by the Secretary of State in February 1998, para 4.5.

Data provided in a letter to Cllr. Mrs. Dawn Somper from Mr. R. Bright, Parking Manager, 15/2/05.

“…each authority should consider which offences might result in vehicles being clamped or removed as part of its enforcement strategy. For example, clamping and removal might be reserved for persistent contravention, safety reasons, relieving congestion, removing obstruction of crossovers, controlling parking generated by special events, controlling parking during busy seasonal shopping periods, and deterring commuter parking”.

Joint Report of the Parking Adjudicators of England and Wales for 2004:

“It is important therefore that the decision to clamp a vehicle or to tow it away is made with care and only in circumstances in which the Council seriously believes that its decision can be justified if challenged by the motorist”

The Chief Parking Adjudicator for England and Wales.

“Adjudicators are of the view that the incorporation of the European Convention on Human Rights into the national legislation places a greater duty on councils to have regard to proportionality. In particular, the decision to remove a vehicle must be taken in the context of Article One of the First Protocol of the ECHR and requires the exercise of judgment. It is for the council to prove that the removal was proportionate and necessary. They need to be able to justify in every case why the issue of a PCN alone would not have achieved the desired objective (i.e. of a reasonable level of compliance with legitimate parking restrictions”.

(top)

Proportionality is regarded as a fundamental principle of European law and was established by the European Court of Justice in the case Fromancais SA v Fonds d'Orientation et de Regularisation – 1983 where the Court ruled:

“ In order to establish whether a provision of Community Law is consonant with the principle of proportionality it is necessary to establish in the first place, whether the means it employs to achieve its aim correspond to the importance of the aim.

English equivalence. At http://www.bailii.org/eu/cases/EUECJ/1983/R6682.html

'contradictio in adiecto', Contradiction in terms.
To express the same concept, Schopenhauer also often used the Latin phrase contradictio in adiecto, which means a contradiction of a subsidiary determination contrary to the concept to which it is united, as hot snow, round square, or cold fire. He also used the German words hölzernes Eisen (wooden iron) to express the same logical inconsistency or contradiction. An oxymoron (plural oxymorons or, more rarely, oxymora) is a figure of speech that combines two normally contradictory terms. Oxymoron is a loanword from Greek oxy ("sharp") and moros ("dull"). Thus the word oxymoron is itself an oxymoron. (from Wiki encyclopedia).

Whoever quotes alone the terms “Justice must be seen to be done” is playing dangerously with semantics[ in an utterly unacceptable manner; that lends force to the persuasion that “seeing may be subjectively false in correspondence theory”. in the same way as I have seen a respondent from Oxford Council argue in a court exchange, that they served a Penalty Charge Notice (PCN), Charge Certificate, (CC) and Notice to Owner (NTO), when it was alleged they served ILLEGAL documents; ie 'purporters' each of, Penalty Charge Notice (PCN), Charge Certificate, (CC) and Notice to Owner (NTO).

The semantic ambiguity and blur here is simple. Maintain an outward appearance of truth by reducing the concept of a 'genus et differentia' , to the next higher level of differentia or even to the root level of genus. IE; SUBTRACT the essential qualifying adjective or adverb. Swearing the economic truth they served each 'purporter' simply as the genus, without the term 'legal' is a swearing of truth that materially implies the falsity when regarded against the allegation itself, and this sleight of hand  (writing), is often unnoticed or willfully ignored by a judge.
Implied falsity masquerading as 'whole' truth.
Hence by similar declension and valid analogy, to say alone that “Justice must be seen to be done” omitting the essential qualifying attributes; “not only be done, but”, as Lord Hewart stated below.
“that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
It's the distinction between seeming and being, as to subjective appearances is to objective reality, where there is the possibility of difference and non correspondence.(Questor). (top)

Seen to be Done: The Principle of Open Justice

KEYNOTE ADDRESS TO THE 31ST AUSTRALIAN LEGAL CONVENTION CANBERRA 9 OCTOBER 1999
BY THE HONOURABLE J J SPIGELMAN
CHIEF JUSTICE OF NEW SOUTH WALES

All lawyers will recognise the oft cited aphorism of Lord Hewart from Rex v Sussex Justices; Ex parte McCarthy:
“… it is not merely of some importance but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” 1
Lord Hewart was encapsulating a principle that had been long known and often expressed 2. Another pithy articulation of part of the scope of the principle is that of Lord Bowen:

“… Judges, like Caesar’s wife, should be above suspicion …”. 3
And Lord Atkin said:
“Justice is not a cloistered virtue.” 4
The High Court has expressly applied Lord Hewart’s aphorism a number of times,5 as have other Australian courts. It appears in the Oxford Dictionary of Quotations.
Must we attribute the aphorism to Lord Hewart? If we do, the proposition that “justice must be seen to be done”, could hardly have a less auspicious provenance.

The Principle of Open Justice
The principle that justice must be seen to be done - to which I will refer as the principle of open justice - is one of the most pervasive axioms of the administration of justice in our legal system. It informs and energises the most fundamental aspects of our procedure and is the origin, in whole or in part, of numerous substantive rules. It operates subject only to the overriding obligation of a court to deliver justice according to law.

Further rebuttal arguments and rulings, added by kind suggestion of Dave Warburton, (otherwise known as DW190).

Legal Authorities.

MacLeod v Hamilton 1965 S.L.T 305

If signs to indicate the effect of a "No Waiting" order have not been erected, or signs have been erected not conforming to s.64 of the RTRA 1984 and TSRGD 2002 (SI 2002/3113), no offence against the "No Waiting" order is committed.

Hassan v DPP [1992] R.T.R. 209, Divisional Court

The absence of a sign specifying the prescribed hours of restricted parking in a road marked with a single yellow line is fatal to a successful prosecution for a no waiting offence.

Davies v Heatley [1971] R.T.R 145

Because by s.64(2) of the Road Traffic Regulation Act 1984 traffic signs shall be of the size, colour and type prescribed by regulation, if a sign the contravention of which is an offence contrary to s.36 is not as prescribed by the regulation, no offence is committed if the sign is contravened, even if the sign is clearly recognisable to a reasonable man as a sign of that kind. (top)