Pasted this across from my local off road forum
it has some valid points that need sharing
If it has already been posted apologises Tim
Section 59 Notices
Following on from other recent posts (http://www.larf-online.com/forum/viewtopic.php?p=28816#28816) and a post by Tonibe on the TBM Forum, I thought it may be useful to post the following reply by Andy T here.
Andy T may be known to some of you, but for those who don't, Andy is a very knowledgeable chap, and is not averse to writing the odd long letter. That said, he does know his stuff.
ANDY.T wrote:
WARNING: PLEASE SEEK PROPER LEGAL ADVICE AND DO NOT RELY UPON THE PERSONAL INTERPRETATION OF THE LEGAL ISSUES AS DESCRIBED BELOW. I HAVE NO LEGAL TRAINING OR QUALIFICATIONS.
Note to Ed: I have asked my motorcycle groups official body for confirmation of the details below and I am still awaiting a reply 7 months on... I am certain this topic would make an excellent article in your informative Mag and it might result in an up to date and sound understanding of this complicated and ultimately very relevant and important issue the readers face when they ride... The information was passed to me by a serving senior police traffic officer who deals with pre CPS and Court paperwork. Obviously he does not want to be quoted and as the issue is so complicated neither do I ! especially as no one official wants to determine exactly how it should be interpreted.
Here is my understanding of the relevant rules and how they are/should be applied to be lawful:
What has to happen before you can be reported for any relevant offence:
Section 34(1) of the Road Traffic Act 1988 provides
that anyone driving a mechanically propelled vehicle
without lawful authority on land not forming part of a
road or on a road that is a footpath, bridleway or
restricted byway is guilty of an offence.
"Careless, and inconsiderate, driving. Section 3 of the Road Traffic Act 1988. If a person drives a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, he is guilty of an offence."
The fact that being "caught" (if indeed the Police officer thinks we are in the wrong place although we would not be.) could ONLY lead to at worst a Fixed Penalty Ticket for riding elsewhere other than a road. This carries a £30 fine and NO penalty points.
Section 59 Police Reform Act 2002
Where a constable in uniform has reasonable grounds for believing that a motor vehicle is being used on any occasion in a manner which contravenes section 3 of the Road Traffic Act 1988 (careless and inconsiderate driving) or section 34 of the Road Traffic Act 1988, (Driving on land other than a road)
AND (This AND is very important see note below)
is causing, or is likely to cause, alarm, distress or annoyance to members of the public, he has the powers shown below.
[ NOTE: Please note the “AND” : if no alarm, distress or annoyance is caused then the ONLY power is to issue a fixed penalty notice for s34 RTA (Driving on land other than a road) Also in order to be committing an offence under s3 of the Road Traffic Act~ careless and inconsiderate driving, then that driving or riding MUST be such that it would also have been careless and inconsiderate driving or riding on your local Town High Street! Just trail riding along a byway at a moderate and safe speed for the conditions is NOT careless or inconsiderate as far as the Road Traffic Act offence is concerned. It means that you caused another road user to take action to avoid you, caused them to brake to avoid you, swerve etc... just annoying a Ramblier because your there is NOT an offence, otherwise the local farmer who owns the land would also be guilty if he drives his tractor or land rover along the same lane... Also causing annoyance or likely to cause annoyance means that someone of reasonable character and mental standing must be unduly annoyed at your actions. As the required accompanying offence is a Road Traffic Act one then your actions in riding must be such that is an offence on ANY road, not just a Restricted Byway... vis~ it stands to reason that if you stick to the previously legal lanes where the owner has access and there is likely to be other vehicles like tractors or owners land rovers on them you cant be causing any sort of alarm. You are only using the lane as intended as would any vehicle user who has allowance to do so under the NERC Act. A Rambliers annoyance is not of relevant legal standing in this instance otherwise as a pedestrian all Ramliers could be deemed to be annoying to trail riders as they are using the "road" as well and are thereby covered under the Road Traffic Act as well as pedestrians are on normal roads... it's complicated and confused and bad legislation, just know your rights...]
Also if you are riding a totally legal bike (minor defects are not applicable here) and have insurance, tax and a full drivers licence for the vehicle you are using IT CANNOT BE CRUSHED. If you can provide these at the time of being stopped then it is arguable in a Court that the bike should NOT be seized as the sole reason for seizure is either to stop the continuation of the offence if it meets the s59 rules as stated above, or if the Police Officer in Uniform (Trail riding or unofficial motorcycle gear that differs from the police full uniform for the normal police motorcycle officers in that force – service area does not count) believes or suspects that you are either not the correct owner/keeper or don’t have a full licence, insurance or tax. Remember the offences are Road Traffic Act offences that need to be committed first and are the same for any ROAD dependant on the conditions prevailing at the time.)
Powers under s 59
Those powers are-
• Power, if the motor vehicle is moving, to order the person driving it to stop the vehicle;
• Power to seize and remove the motor vehicle;
• Power, for the purposes of exercising a power falling within paragraph (a) or (b), to enter any premises on which he has reasonable grounds for believing the motor vehicle to be;
Where necessary, reasonable force may be exercised in the use of these powers.
Offence of failing to stop
A specific offence of failing to stop under section 59 is created by section 59(6). The maximum fine on conviction is at level III.
Conditions for seizure
A constable shall not seize a motor vehicle in the exercise of the powers conferred on him by this section unless a warning that continued use will lead to seizure or it appears to the constable that the use has continued or been repeated after the warning has been issued.
There is no requirement to issue a warning where;
• the circumstances make it impracticable for him to give the warning, or
• the constable has already on that occasion given a warning of the use of that or another motor vehicle by that person or any other person, or
• the constable has reasonable grounds for believing that such a warning has been given on that occasion by someone else; or
• the constable has reasonable grounds for believing that the person whose use of that motor vehicle on that occasion would justify the seizure is a person to whom a warning under that subsection has been given (whether or not by that constable or in respect the same vehicle or the same or a similar use) on a previous occasion in the previous twelve months.
Seizure notice
As soon as practicable after a vehicle has been seized a seizure notice must be served on the person who is or appears to be the owner of the vehicle unless the vehicle has been released from their custody,
Form of notice
The notice must contain the following information.
• the place where the vehicle was seized;
• the place where it is now being kept;
• that the person to whom the notice is directed is required to claim the vehicle from the authority on or before the date specified in the notice.
This date must not less than 21 days from the day when the notice is given;
• that unless the vehicle is claimed on or before that date the authority intend to dispose of it;
• that, subject to the exceptions below, charges are payable by the owner of the vehicle in respect of the removal and retention of the vehicle, and that the vehicle may be retained until such charges are paid.
Method of delivery of the notice
• By delivering it to the person to whom it is directed or
• By leaving it at his usual or last known address or
• By sending it in by the registered post service, addressed to him at his usual or last known address.
• In the case of Corporate bodies by delivering it to the secretary or clerk of the body at its registered or principal office, or sending it by the registered post service, addressed to the secretary or clerk of the body at that office.
Release of vehicles
Prior to disposal, the owner may claim the vehicle. He can be required to produce documentary evidence of ownership. Prior to release the owner must pay any fees.
Exemption from paying the fees
The owner will not be liable where at the time of the incident the use of the vehicle was not a use by the owner and he did not know about the way in which the vehicle was used, had not consented to its use in that manner and could not, by the taking of reasonable steps, have prevented its use in that manner.
Charges
Removal, £105; and £12 for each period of 24 hours or a part thereof during which the vehicle is stored.
WARNING: PLEASE SEEK PROPER LEGAL ADVICE AND DO NOT RELY UPON THE PERSONAL INTERPRETATION OF THE LEGAL ISSUES AS DESCRIBED BELOW. I HAVE NO LEGAL TRAINING OR QUALIFICATIONS.
Here is the link to the GLASS site information:
http://www.glass-uk.org/index.php?option=com_content&task=view&id=267&Itemid=492
It's probably also worth re - posting the link to the ACPO (Association of Chief Police Officers) policy document - Motorcycle Enforcement Strategy For England, Wales & Northern Ireland, to keep all this stuff in one post.
http://www.acpo.police.uk/asp/policies/Data/motorcycle_enforcement.doc
it has some valid points that need sharing
If it has already been posted apologises Tim
Section 59 Notices
Following on from other recent posts (http://www.larf-online.com/forum/viewtopic.php?p=28816#28816) and a post by Tonibe on the TBM Forum, I thought it may be useful to post the following reply by Andy T here.
Andy T may be known to some of you, but for those who don't, Andy is a very knowledgeable chap, and is not averse to writing the odd long letter. That said, he does know his stuff.
ANDY.T wrote:
WARNING: PLEASE SEEK PROPER LEGAL ADVICE AND DO NOT RELY UPON THE PERSONAL INTERPRETATION OF THE LEGAL ISSUES AS DESCRIBED BELOW. I HAVE NO LEGAL TRAINING OR QUALIFICATIONS.
Note to Ed: I have asked my motorcycle groups official body for confirmation of the details below and I am still awaiting a reply 7 months on... I am certain this topic would make an excellent article in your informative Mag and it might result in an up to date and sound understanding of this complicated and ultimately very relevant and important issue the readers face when they ride... The information was passed to me by a serving senior police traffic officer who deals with pre CPS and Court paperwork. Obviously he does not want to be quoted and as the issue is so complicated neither do I ! especially as no one official wants to determine exactly how it should be interpreted.
Here is my understanding of the relevant rules and how they are/should be applied to be lawful:
What has to happen before you can be reported for any relevant offence:
Section 34(1) of the Road Traffic Act 1988 provides
that anyone driving a mechanically propelled vehicle
without lawful authority on land not forming part of a
road or on a road that is a footpath, bridleway or
restricted byway is guilty of an offence.
"Careless, and inconsiderate, driving. Section 3 of the Road Traffic Act 1988. If a person drives a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, he is guilty of an offence."
The fact that being "caught" (if indeed the Police officer thinks we are in the wrong place although we would not be.) could ONLY lead to at worst a Fixed Penalty Ticket for riding elsewhere other than a road. This carries a £30 fine and NO penalty points.
Section 59 Police Reform Act 2002
Where a constable in uniform has reasonable grounds for believing that a motor vehicle is being used on any occasion in a manner which contravenes section 3 of the Road Traffic Act 1988 (careless and inconsiderate driving) or section 34 of the Road Traffic Act 1988, (Driving on land other than a road)
AND (This AND is very important see note below)
is causing, or is likely to cause, alarm, distress or annoyance to members of the public, he has the powers shown below.
[ NOTE: Please note the “AND” : if no alarm, distress or annoyance is caused then the ONLY power is to issue a fixed penalty notice for s34 RTA (Driving on land other than a road) Also in order to be committing an offence under s3 of the Road Traffic Act~ careless and inconsiderate driving, then that driving or riding MUST be such that it would also have been careless and inconsiderate driving or riding on your local Town High Street! Just trail riding along a byway at a moderate and safe speed for the conditions is NOT careless or inconsiderate as far as the Road Traffic Act offence is concerned. It means that you caused another road user to take action to avoid you, caused them to brake to avoid you, swerve etc... just annoying a Ramblier because your there is NOT an offence, otherwise the local farmer who owns the land would also be guilty if he drives his tractor or land rover along the same lane... Also causing annoyance or likely to cause annoyance means that someone of reasonable character and mental standing must be unduly annoyed at your actions. As the required accompanying offence is a Road Traffic Act one then your actions in riding must be such that is an offence on ANY road, not just a Restricted Byway... vis~ it stands to reason that if you stick to the previously legal lanes where the owner has access and there is likely to be other vehicles like tractors or owners land rovers on them you cant be causing any sort of alarm. You are only using the lane as intended as would any vehicle user who has allowance to do so under the NERC Act. A Rambliers annoyance is not of relevant legal standing in this instance otherwise as a pedestrian all Ramliers could be deemed to be annoying to trail riders as they are using the "road" as well and are thereby covered under the Road Traffic Act as well as pedestrians are on normal roads... it's complicated and confused and bad legislation, just know your rights...]
Also if you are riding a totally legal bike (minor defects are not applicable here) and have insurance, tax and a full drivers licence for the vehicle you are using IT CANNOT BE CRUSHED. If you can provide these at the time of being stopped then it is arguable in a Court that the bike should NOT be seized as the sole reason for seizure is either to stop the continuation of the offence if it meets the s59 rules as stated above, or if the Police Officer in Uniform (Trail riding or unofficial motorcycle gear that differs from the police full uniform for the normal police motorcycle officers in that force – service area does not count) believes or suspects that you are either not the correct owner/keeper or don’t have a full licence, insurance or tax. Remember the offences are Road Traffic Act offences that need to be committed first and are the same for any ROAD dependant on the conditions prevailing at the time.)
Powers under s 59
Those powers are-
• Power, if the motor vehicle is moving, to order the person driving it to stop the vehicle;
• Power to seize and remove the motor vehicle;
• Power, for the purposes of exercising a power falling within paragraph (a) or (b), to enter any premises on which he has reasonable grounds for believing the motor vehicle to be;
Where necessary, reasonable force may be exercised in the use of these powers.
Offence of failing to stop
A specific offence of failing to stop under section 59 is created by section 59(6). The maximum fine on conviction is at level III.
Conditions for seizure
A constable shall not seize a motor vehicle in the exercise of the powers conferred on him by this section unless a warning that continued use will lead to seizure or it appears to the constable that the use has continued or been repeated after the warning has been issued.
There is no requirement to issue a warning where;
• the circumstances make it impracticable for him to give the warning, or
• the constable has already on that occasion given a warning of the use of that or another motor vehicle by that person or any other person, or
• the constable has reasonable grounds for believing that such a warning has been given on that occasion by someone else; or
• the constable has reasonable grounds for believing that the person whose use of that motor vehicle on that occasion would justify the seizure is a person to whom a warning under that subsection has been given (whether or not by that constable or in respect the same vehicle or the same or a similar use) on a previous occasion in the previous twelve months.
Seizure notice
As soon as practicable after a vehicle has been seized a seizure notice must be served on the person who is or appears to be the owner of the vehicle unless the vehicle has been released from their custody,
Form of notice
The notice must contain the following information.
• the place where the vehicle was seized;
• the place where it is now being kept;
• that the person to whom the notice is directed is required to claim the vehicle from the authority on or before the date specified in the notice.
This date must not less than 21 days from the day when the notice is given;
• that unless the vehicle is claimed on or before that date the authority intend to dispose of it;
• that, subject to the exceptions below, charges are payable by the owner of the vehicle in respect of the removal and retention of the vehicle, and that the vehicle may be retained until such charges are paid.
Method of delivery of the notice
• By delivering it to the person to whom it is directed or
• By leaving it at his usual or last known address or
• By sending it in by the registered post service, addressed to him at his usual or last known address.
• In the case of Corporate bodies by delivering it to the secretary or clerk of the body at its registered or principal office, or sending it by the registered post service, addressed to the secretary or clerk of the body at that office.
Release of vehicles
Prior to disposal, the owner may claim the vehicle. He can be required to produce documentary evidence of ownership. Prior to release the owner must pay any fees.
Exemption from paying the fees
The owner will not be liable where at the time of the incident the use of the vehicle was not a use by the owner and he did not know about the way in which the vehicle was used, had not consented to its use in that manner and could not, by the taking of reasonable steps, have prevented its use in that manner.
Charges
Removal, £105; and £12 for each period of 24 hours or a part thereof during which the vehicle is stored.
WARNING: PLEASE SEEK PROPER LEGAL ADVICE AND DO NOT RELY UPON THE PERSONAL INTERPRETATION OF THE LEGAL ISSUES AS DESCRIBED BELOW. I HAVE NO LEGAL TRAINING OR QUALIFICATIONS.
Here is the link to the GLASS site information:
http://www.glass-uk.org/index.php?option=com_content&task=view&id=267&Itemid=492
It's probably also worth re - posting the link to the ACPO (Association of Chief Police Officers) policy document - Motorcycle Enforcement Strategy For England, Wales & Northern Ireland, to keep all this stuff in one post.
http://www.acpo.police.uk/asp/policies/Data/motorcycle_enforcement.doc
