Byelaw 18 - good advice?

[ForTheLoveOf]

The procedure would be to apply for the convicting magistrates’ court to “state a case” setting out the question of law which is at issue in the case. This would enable the High Court to hear what is, effectively, an appeal against the conviction and answer the question. In theory that could then be appealed further. A High Court decision would have precedental value for future magistrates’ court cases.

That being the case if a conviction occurred - if appropriate legal assistance were obtained, it is quite possible that it might not be necessary to escalate it to the High Court. Of course that would in a way not be beneficial to "the cause" if it meant no precedent were set!

 

[ForTheLoveOf]

I'm just wondering why, in the 13 years since 2005, no one has taken this on and challenged byelaw 18. If 18 is so ill-founded, surely some determined customer working with an enterprising law firm would have gone to court to make the argument?

It has taken other unlawful laws and Byelaws far longer to be overturned. Its age has no relevance to its validity - unless it has previously already been challenged on this point, and the challenge has been lost in a binding precedent!

As Fawkes Cat clearly states and the point i made in another post about ForTheLoveOf's claims - it is enshrined in law and surely that makes it lawful.

I simply do not understand how they can possibly claim otherwise.

Byelaws are not unchallengeable Acts of Parliament. They are a form of Statutory Instrument, and Statutory Instruments are a form of delegated power from Parliament. They can only have powers insofar as Parliament has authorised them to do so. Byelaw 18 oversteps the authority Parliament gave the Strategic Rail Authority to make Byelaws. Therefore, the mere fact that they have been made does not mean they are by any means infallible.

The set of legally trained/involved people intersects with the set of Internet users.

We are going well off topic here, so I do not propose further discussion of this. Suffice to say, my comment remains correct.

 

[ForTheLoveOf]

You are making some very dangerous assumptions in that statement. There are people on this forum who do have legal training and others who could quite possibly be Magistrates.
And I can assure you that Magistrates get no legal training. In their Court the legal advice comes from the Clerk to the Justices.

I have not suggested that Magistrates have legal training. However they have experience of the legal system and as such they are better qualified to be making judgments on the validity of a legal argument than the "man on the Clapham omnibus".

 

[Llanigraham]

Byelaws are not unchallengeable Acts of Parliament. They are a form of Statutory Instrument, and Statutory Instruments are a form of delegated power from Parliament. They can only have powers insofar as Parliament has authorised them to do so. Byelaw 18 oversteps the authority Parliament gave the Strategic Rail Authority to make Byelaws. Therefore, the mere fact that they have been made does not mean they are by any means infallible.


We are going well off topic here, so I do not propose further discussion of this. Suffice to say, my comment remains correct.

No that is just your opinion, as you are in no position to make such a statement.

 

[Llanigraham]

I have not suggested that Magistrates have legal training. However they have experience of the legal system and as such they are better qualified to be making judgments on the validity of a legal argument than the "man on the Clapham omnibus".

I'm sorry, but I suggest you know very little about Magistrates and what they know about the legal system. That is exactly why they have a Clerk to the Justices who is there to make sure thay abide by the Laws. They are our "peers" and are often the "man on the Claphan omnibus".

For your information, I had 2 family members who were Magistrates, including one who was Chairman of the Bench, have a friend who is currently a Magistrate, another friend who is a Clerk to the Justices and I was a Court Presenting Officer for a Government Dept before I joined the railway.

And I ask again, why if you are so sure of your facts, aren't you pressurising for a Judicial Review on this matter or even trying to fight it yourself by being prosecuted?

 

[najaB]

However they have experience of the legal system and as such they are better qualified to be making judgments on the validity of a legal argument than the "man on the Clapham omnibus".

Many a magistrate is also a user of public transport in the South-West London area...

 

[infobleep]

As Fawkes Cat clearly states and the point i made in another post about ForTheLoveOf's claims - it is enshrined in law and surely that makes it lawful.

I simply do not understand how they can possibly claim otherwise.

I read earlier this year or last about someone who had been convicted under a law the government had implemented. This law then found to be illegal under EU regulations. So an illegal law in that respect. So a law doesn't have to be lawful it seems.

I tried to find the news article again but struggled to do so.

I'm not saying bylaw 18 is unlawful. I wouldn't know. Just that because a law exists, doesn't mean it's lawful so to speak

 

[najaB]

I'm not saying bylaw 18 is unlawful. I wouldn't know. Just that because a law exists, doesn't mean it's lawful so to speak

That is correct, but it usually occurs with new legislation or as a result of new legislation/case precedent making an old law invalid.

Neither appears to be the case here.

 

[Sirius]

I do find this discussion very interesting, it’s just a shame that in this area it’s unlikely to be challenged whereas in other areas (e.g. tax, or benefits) there is incentive for someone to take the case further - in those cases to the Upper Tribunals and beyond.

 

[Puffing Devil]

Many a magistrate is also a user of public transport in the South-West London area...

And the Northwest of England.

 

[Puffing Devil]

I have not suggested that Magistrates have legal training. However they have experience of the legal system and as such they are better qualified to be making judgments on the validity of a legal argument than the "man on the Clapham omnibus".

Whilst not formally trained, there are many on the bench with a great deal of experience dealing with cases on a day to day basis. The practical Public Order, Theft and Motoring knowledge of many experienced magistrates will be far in excess of many qualified lawyers who have never ventured into the criminal court.

Even so, I don't think any Magistrate (or District Judge) would look to rule on the validity of a Byelaw and any defence would most likely fail. This leads to grounds of appeal by way of case stated to the High Court and I see no reason for this not to be entertained. However - you would need someone facing a Byelaw offence willing to plead not guilty simply to test this. Good luck with that! Unless @ForTheLoveOf is prepared to get themselves in court to test their own position.

 

[ainsworth74]

Unless @ForTheLoveOf is prepared to get themselves in court to test their own position.

Though surely anyone who deliberately set out to get themselves into court to test this would be by definition guilty of intentional fare evasion so would end up with a RoRA prosecution which would rather defeat the purpose of the exercise!

 

[ForTheLoveOf]

Whilst not formally trained, there are many on the bench with a great deal of experience dealing with cases on a day to day basis. The practical Public Order, Theft and Motoring knowledge of many experienced magistrates will be far in excess of many qualified lawyers who have never ventured into the criminal court.

Even so, I don't think any Magistrate (or District Judge) would look to rule on the validity of a Byelaw and any defence would most likely fail. This leads to grounds of appeal by way of case stated to the High Court and I see no reason for this not to be entertained. However - you would need someone facing a Byelaw offence willing to plead not guilty simply to test this. Good luck with that! Unless @ForTheLoveOf is prepared to get themselves in court to test their own position.

If I had a pending Byelaw 18 prosecution I would certainly be considering this as a defence! I am obtaining further views on my argument and hope to be back in the next few weeks with some interesting news.

 

[Puffing Devil]

Though surely anyone who deliberately set out to get themselves into court to test this would be by definition guilty of intentional fare evasion so would end up with a RoRA prosecution which would rather defeat the purpose of the exercise!

LOL!!

 

[najaB]

If I had a pending Byelaw 18 prosecution I would certainly be considering this as a defence!

If I had four legs, a horn and wings I'd be a unicorn. Oh, wait, I thought we were all making useless statements. Until someone gets prosecuted under the Byelaws and actually asks for a review I don't see the point in discussing it further.

 

[ForTheLoveOf]

If I had four legs, a horn and wings I'd be a unicorn. Oh, wait, I thought we were all making useless statements. Until someone gets prosecuted under the Byelaws and actually asks for a review I don't see the point in discussing it further.

Well, for example, it would be of little assistance if someone were being prosecuted under Byelaw 18 as a concession to being prosecuted under RoRA - as if they raised this defence they would then be at risk of having the Byelaw prosecution withdrawn and replaced with the originally intended RoRA one! (Though, depending on the exact point at which the defendant notified them of their intended defence, that may be estopped).

 

[sheff1]

If I had four legs, a horn and wings I'd be a unicorn. Oh, wait, I thought we were all making useless statements. Until someone gets prosecuted under the Byelaws and actually asks for a review I don't see the point in discussing it further.

Nobody is forcing you to discuss it .

I, and others clearly, find the discussion interesting.

 

[Sirius]

I think what is missing, and would be helpful to know, is under what legislation were Byelaws enacted that were successfully challenged in the past? More specifically what differences are there between that primary legislation and Schedule 20 of the Transport Act 2000. I accept this may be difficult to find.

 

[cuccir]

because it creates an offence that is as good as identical to RoRA S5(3)(a),

Is it fair to say that the argument being made would rest on this assertion - that the Byelaw offence actually is as good as identical to RoRA S5(3)(a)? Presumably the success of this defence would depend upon convincing a Magistrate, or whoever, of this claim.

 

[najaB]

I, and others clearly, find the discussion interesting.

As did I. But it's reached (or passed) the point of diminishing returns unless and until someone actually mounts a challenge.

 

[Gareth Marston]

As did I. But it's reached (or passed) the point of diminishing returns unless and until someone actually mounts a challenge.

now that would be novel and interesting instead of the usual suspects saying "i think it could be Challenged because..."