When is the law not the law??
Discussion
7db said:
extenuating circumstance can't always be forseen, so laws have to be applied with some flexibility.
Laws are, by their nature, a set of inflexible rules that lawmakers pass so that they do not have to prescribe rules for every circumstance. The are "arbitrary" - all laws are - in that they draw a fixed line in the sand. They will create errors of things which should be punished and are left unpunished, and will punish things which should not be punished.
As I understand - UK law was built up on common law, equity und precedent - und has evolved und changed und been modified along the centuries - up until Bliar took charge ...which ist why there has been conflict mit Law Lords und Bliar...per various media reports und articles in professional magazines.
As regard Statute Law - judge und courts had to interpret the statute to establish what wrong it sought to put right - und apply mit element of flexibility - which ist called something like "obiter dicta" or "ratio decidendi" Europe - Law ist in Constitution und each point ist engraved in stone - but ist also some flexibility allowed in their courts according to circumstance of whatever.
7db said:
What is very important for the rule of law, is that they are not interpreted or applied flexibly - for then the law ceases to be a law and becomes a rule-of-thumb, and the public no longer know what the law is. The law is then made by those who interpret the law. A dangerous step for society.
But this ist exactly how UK law became the model of equity und fairness und developed throughout tradition und over centuries since Magna Carta.
What is t happening at moment ist Bliar like pasing laws - und we now have so many new laws that no one ist now sure what law ist.
Und ja - ist a ridiculous law to prosecute someone form selling apples by the point und not the kilogramme! Even in France - they include the word "livre" (meaning POUND! und not BOOK in this context
. Und I can even ask for "un livre de pommes et un livre de fraises..." und get a pound of apples und strwaberries. Here - there was case whereby some bloke was prosecuted for showing his prices in "pounds" und not "kilos" - yet this ist a term which majority in this country understand und their culture sees the required amount in mind's eye. (I mention this as example of the general pedantic silliness which ist creeping into this country's legal system)
7db said:
That some acts are punished when the lawmakers did not intend that they should be punished, is a good reason for leniency and clemency for some of the guilty. So I would rather D Mike's words were:-
"Extenuating circumstances can't always be forseen, so punishments for those who break the law have to be applied with some flexibility."
This is what sentencing guidelines are about.
Und political correctness creeps in und sentencing "guidelines" are only flexible if person in dock ist on benifits und has hard luck story of underprivileged childhood which involves bunking off school und being unteachable und product of Wayne und Trayceee Ammaslag
[quote = ATG]Right ... so the rule of thumb to only prosecute speeding at the limit +10% or whatever is not a sign of descretion being applied on a regular basis?[/quote]
I'll take this as an example so you can understand what I mean.
The ACPO produce guidelines to enforce only at 110% of the limit + 2. These are accepted by some Chief Constables for use in their areas.
If you drive at 71 on the motorway, you might expect not to get done.
However, should you appear in front of a magistrate charged with excess speed, and the evidence cearly indicates that you were doing 71, you should expect to be found guilty, but be given a small punishment.
I'll take this as an example so you can understand what I mean.
The ACPO produce guidelines to enforce only at 110% of the limit + 2. These are accepted by some Chief Constables for use in their areas.
If you drive at 71 on the motorway, you might expect not to get done.
However, should you appear in front of a magistrate charged with excess speed, and the evidence cearly indicates that you were doing 71, you should expect to be found guilty, but be given a small punishment.
7db said:
Right ... so the rule of thumb to only prosecute speeding at the limit +10% or whatever is not a sign of descretion being applied on a regular basis?
I'll take this as an example so you can understand what I mean.
The ACPO produce guidelines to enforce only at 110% of the limit + 2. These are accepted by some Chief Constables for use in their areas.
If you drive at 71 on the motorway, you might expect not to get done.
However, should you appear in front of a magistrate charged with excess speed, and the evidence cearly indicates that you were doing 71, you should expect to be found guilty, but be given a small punishment.
So descretion is OK if it comes from the ACPO, but not if it comes from magistrates?
Surely the point is that it is inevitable that descretion in some form will always be needed if the system as a whole if going to be just? We might hope the source of descretion would be the courts, but in reality it is inevitable that it will usually have to come from the Police? Obviously that opens up issues of accountability, giving the pea-brained too much power, but for all of those shortcomings, any other system is even worse.
>> Edited by ATG on Sunday 17th July 14:28
D_Mike said:
Just out of interest are the speed cameras accurate to 1mph? When going 70mph that is to within 1.5% which is really quite accurate.
No! A camera reading to +/-3mph is deemed to be in calibration acc Home Office "rules."
Some forces work to +/-2mph, eg Devon and Cornwall.
So we have a dilemma, the politicos and lentilists want enforcement at 1mph over, they want graduated penalties where 1mph difference in the reading could mean, no penalty vs 2pts, or 2pts vs 3pts, and so on.
Then again we have vehicles with speedos which are typically marked with minor increments of 5mph. 10mph increments are not uncommon.
Now back in the distant 19-mumbly-mumble when I learnt about scientific measurement errors and how to allow for them I do recall being taught that the most accurate that one could read a gauge was +/-half the smallest graduation.
Therefore a speedo graduated in 5mph increments can only be read accurately at indicated velocity +/-2.5mph. That is on a laboratory bench taking a good sight of the gauge, eliminating errors due to parallax and so on. A glance at a speedo is accurate to what?
OK so you can ESTIMATE the indicated speed but that is all, an ESTIMATE.
Now before someone comes along and says but speedos read fast so if you are doing 74, say, then your speedo could be reading 81 ie 10% fast. True but most speedos these days in my experience are only 2-3% fast and some are absolutely cock-on, so the fast speedo argument is something of a red herring.
Personally I thought the old school had it right.
Prosecution limit = Limit + 10% + 10 mph. This was on the basis that the 10% allows for errors in reading the speedo, and the extra 10mph is so "they must have known they were speeding."
FiF
>> Edited by Flat in Fifth on Sunday 17th July 14:44
7db said:
Right ... so the rule of thumb to only prosecute speeding at the limit +10% or whatever is not a sign of descretion being applied on a regular basis?
I'll take this as an example so you can understand what I mean.
The ACPO produce guidelines to enforce only at 110% of the limit + 2. These are accepted by some Chief Constables for use in their areas.
Ist a guideline .. TVP told one bloke inexchange of e-mail per his post on Paulie's site regarding their "Speed Course" that they can prosecute below 10% plus 2 - as course is offrrete up to und including 35 mph
Und Lancs up until a revision (und we still hear that some are are allegedly offered course after falsh at 34/35 mph
) was regualrly prosecuting as low as 34 mph und making a lot of cash throught the Speed Course - but depsite that ...am inclined to nod in favour of this approach providing ist not undermined by silliness 7db said:
If you drive at 71 on the motorway, you might expect not to get done.
However, should you appear in front of a magistrate charged with excess speed, and the evidence cearly indicates that you were doing 71, you should expect to be found guilty, but be given a small punishment.
Ist not a small punsihment though ... ist stikll the same £60 pluis points because that ist per statute und sentencing rule.
They could, of course, throw it out as "not in public interest to prosecute" which ist correct course of action - nicht?
Back in Switzerland - ist 3 mph tolerance but ist fine und no points if 3 mph recorded.
Ist a nice little earner Especially for Brits abroad 
As locals und COAST-ing Swiss felines know where ist likely to see wheely bin und Snow White mit the biggest lens boobies >> Edited by WildCat on Sunday 17th July 18:53
Just come back form a wedding so might be a little the worse for wear.
That's almost exactly what I'm saying, yes.
The Police make decisions about deployment of resources in enforcing the law (and notice that they do not have to follow the ACPO guidelines) Separately (nearly) the CPS make decisions about what resources to deploy in pursuing cases - particularly whether there is public interest in the public prosecutor pursuing the case. In practice, the Police tend not to pursue anything the CPS won't prosecute.
Absolutely not. CPS can opt not to take it to court, but once it is before the magistrate, their job is solely to decide whether the facts support (beyond reasonable doubt) the case that the law had been broken, and then to use the sentencing guidelines and any exceptions that they feel fit to justfy to pass sentence
ATG said:
So descretion(sic) is OK if it comes from the ACPO, but not if it comes from magistrates?
That's almost exactly what I'm saying, yes.
The Police make decisions about deployment of resources in enforcing the law (and notice that they do not have to follow the ACPO guidelines) Separately (nearly) the CPS make decisions about what resources to deploy in pursuing cases - particularly whether there is public interest in the public prosecutor pursuing the case. In practice, the Police tend not to pursue anything the CPS won't prosecute.
thelovelyWildcat said:
They could, of course, throw it out as "not in public interest to prosecute" which ist correct course of action - nicht?
Absolutely not. CPS can opt not to take it to court, but once it is before the magistrate, their job is solely to decide whether the facts support (beyond reasonable doubt) the case that the law had been broken, and then to use the sentencing guidelines and any exceptions that they feel fit to justfy to pass sentence
7db said:
What ever happened to the old adage; Rules are for the adherence of fools and the guidance of wise men .
You are clearly not a chess player, or you would have long ago realised the difference between laws and rules.
No I gave that up as a teenager when it got too easy
. I was actually trying to draw a parallel.
I appreciate some laws must be pretty inflexible, such as murder
. However I and probably the silent majority, consider that within the grand scheme of things, speed limits to be trivia. Why the great fixation with them now I really cannot fathom, besides the obvious money generation. However even that does not hold water when you consider the savings made against the good will lost across the board 
. Not forgetting that good will is one step away from consent. If you've never come across a red neck policeman in places such as Louisian or Geogia or a 'black shirt' in LA and seen the level of high handedness bordering on abuse under the name policing for trivia, I recommend you do. Because in the not too distant future we will be the same
. Harry
PS apolgies in advance for the rant and spelting
Preventing somebody from driving is a very harsh penalty which could reasonably cause considerable hardship on the whole family, potential loss of job, loss of home, family break-up, it could be a life-changing experience. Is this a reasonable penalty for four occurences of breaking a speed limit by a small amount, when it is not obviously dangerous to do so? Particularly given comments from Brunstrom (via SafeSpeed Radio) suggesting that speed limits are often imposed to control traffic noise or even just to manage the traffic flow. So the limits we're talking about may not even be intended as a safety measure. And for failing to comply with them you're potentially going to cost somebody their job, home, family etc? Does not make sense. WHat happened to the punishment fitting the crime?
HarryW said:
I was actually trying to draw a parallel.
I appreciate some laws must be pretty inflexible, such as murder
That failed then as Murder legislation is flexible allowing evidence to be considered for conviction on a lesser Manslaughter finding
. Homicide laws are flexible to account for differing circumstances. Homicide laws do not just cater for Murder and Manslaughter, there are others which may apply. I agree that the law states it is an offence to kill someone with Malice aforethought. If you do, it is possible you will be convicted of Murder or at least Manslaughter or even get away with it. It also says it is an offence to speed. Wherether there was Malic aforthought in your speeding may decide on more serious charges.
You would still be in the same situation as you would for a charge of murder. The law says it is an offence to break the limit. There are then all sorts of exemptions for lawyers to play with to reduce the charge or to present evidence which allows the court to acquit.
HarryW said:
However I and probably the silent majority, consider that within the grand scheme of things, speed limits to be trivia.
Until you are affected by the side of speeding that has an adverse effect on your quality of life or life itself!
HarryW said:
Why the great fixation with them now I really cannot fathom, besides the obvious money generation.
Because there is a safety issue about a ton of metal being driven in areas where to do so quickly puts people at risk. The money generation from speeding is within the powers of people who are at risk of losing money to avoid so doing. Either be more careful or employ an expensive lawyer to negate the fine (which sort of defeats the object
) HarryW said:
However even that does not hold water when you consider the savings made against the good will lost across the board
If you've never come across a red neck policeman in places such as Louisian or Geogia or a 'black shirt' in LA and seen the level of high handedness bordering on abuse under the name policing for trivia, I recommend you do. Because in the not too distant future we will be the same
Harry
PS apolgies in advance for the rant and spelting
Really?
>> Edited by gone on Tuesday 19th July 09:57
Those who say "a law is a law, breaking it is a crime" miss a couple of important things:-
1) What are laws there to do? Protect society, uphold society's communal values, and protect individuals. As society's values and requirements change, as technology changes, so should laws change...laws ARE NOT IMMUTABLE!!!
1a) Moreover, in the case of speed limits, the law is there as part of a suite of laws enforcing safe road conduct...that is the goal of the law, sufficient SAFETY on the roads. Do not lose sight of this, or you invalidate any argument you put forward.
2) Laws ARE there as guidance for those enforcing them...behind every statute is a whole host of case-law giving guidance and substance to the words on the statute. Therefore laws are open to both interpretation AND judgement by the powers that be.
Taking both (1) and (2) into account, and considering that speed limits were first introduced when people were driving cars with drum brakes and dodgy steering, should it not logically follow that:-
a) speed limits should be reviewed, probably upwards; and
b) speed limits should be enforced with a large amount of judgement. NOT with an absolute such as a speed camera.
1) What are laws there to do? Protect society, uphold society's communal values, and protect individuals. As society's values and requirements change, as technology changes, so should laws change...laws ARE NOT IMMUTABLE!!!
1a) Moreover, in the case of speed limits, the law is there as part of a suite of laws enforcing safe road conduct...that is the goal of the law, sufficient SAFETY on the roads. Do not lose sight of this, or you invalidate any argument you put forward.
2) Laws ARE there as guidance for those enforcing them...behind every statute is a whole host of case-law giving guidance and substance to the words on the statute. Therefore laws are open to both interpretation AND judgement by the powers that be.
Taking both (1) and (2) into account, and considering that speed limits were first introduced when people were driving cars with drum brakes and dodgy steering, should it not logically follow that:-
a) speed limits should be reviewed, probably upwards; and
b) speed limits should be enforced with a large amount of judgement. NOT with an absolute such as a speed camera.
I'm not sure I understand fully the anarchist's point of view (those who would rather not have the rule of law).
Is it just that the limit is too low in many places (but they would happily be prosecuted with the full force of the law 1mph above a higher limit), or that the notion of a fixed limit is offensive in some way?
Perhaps we should have an offence of excess speed that an officer can use his judgement whether you were going too fast. He might not like porsches, though, cos they are hard to get hold of on his pay, so they will be subject to more tickets from him. There's no appeal on facts, as it is his judgement. God help you if he takes a dislike to you for some reason. You'll never know if you're going too fast for him.
Obviously with the huge traffic increase, this work will need to be done by very many people. Probably community service plod would eventually be deciding whether you were going "a bit fast".
For my part, I'd rather have a system where clear signage is required of a fixed but arbitrary speed limit that I can know whether I am exceeding, and know the consequences of.
Is it just that the limit is too low in many places (but they would happily be prosecuted with the full force of the law 1mph above a higher limit), or that the notion of a fixed limit is offensive in some way?
Perhaps we should have an offence of excess speed that an officer can use his judgement whether you were going too fast. He might not like porsches, though, cos they are hard to get hold of on his pay, so they will be subject to more tickets from him. There's no appeal on facts, as it is his judgement. God help you if he takes a dislike to you for some reason. You'll never know if you're going too fast for him.
Obviously with the huge traffic increase, this work will need to be done by very many people. Probably community service plod would eventually be deciding whether you were going "a bit fast".
For my part, I'd rather have a system where clear signage is required of a fixed but arbitrary speed limit that I can know whether I am exceeding, and know the consequences of.
Question which has so far remained unanswered:
If its SAFE to exceed the numbers painted on a sign, then whats the problem with that, as long as its SAFE to do so?
Reminder: Mr Plod on the M54 doing 159 deemed it SAFE and was subsequently proven to have been RIGHT in making such a judgement.
As did the court that tried him.
So, whats the problem with driving above a speed limit ***AS LONG AS ITS SAFE TO DO SO?***
If its SAFE to exceed the numbers painted on a sign, then whats the problem with that, as long as its SAFE to do so?
Reminder: Mr Plod on the M54 doing 159 deemed it SAFE and was subsequently proven to have been RIGHT in making such a judgement.
As did the court that tried him.
So, whats the problem with driving above a speed limit ***AS LONG AS ITS SAFE TO DO SO?***
deltafox said:
Question which has so far remained unanswered:
If its SAFE to exceed the numbers painted on a sign, then whats the problem with that, as long as its SAFE to do so?
If we assume that we do wish to have laws punish people who drive "too fast", then we need some mechanism for determining who they are.
In an ideal world, we would punish drivers who drove "too fast" for the conditions. Then the numbers on the sign would be irrelevant - it would be the child in the road, or the long straight open plains that determined the top legal speed.
However, in this scenario we need an independent judge of what speed is safe for each condition. Not only will that judge need to be everywhere, but that judge will make mistakes (per the porsche-hating-policeman in my example above). Sometimes he will disagree with you about what speed is "safe". Sometimes he will be plain wrong. But what he says will be law.
A practical alternative to this is numbers painted on signs. Similarly, these will sometimes be right and sometimes be plain wrong. The advantage that they have over the p-h-p is that they are fully predictable -- ie you know what the limit is, and they are more easily, cheaply and objectively enforced.
The issue I have is that often the number is too small.
7db said:With respect, i think you have still failed to understand the status quo. You seem to be assuming that the "rule of law" can only mean, and currently does mean, the application of black and white rules. That is simply not true. British law is far more subtle (and useful) than such a restricted interpretation would allow. For example, the idea of "owing a duty of care" to someone is useful because it is a loose definition. "Proof beyond reasonable doubt" is another fine example; the value of the term "reasonable" is its wooliness.
I'm not sure I understand fully the anarchist's point of view (those who would rather not have the rule of law).
Looseness of definition, looseness of interpretation are strengths not weaknesses. They allow the justice system to deal fairly with individual cases.
Yes, it demands a high degree of integrity from all parties who are burdened with the responsibility of making judgements, the Police, CPS, magistrates and judges. It is not unreasonable for the public and the State to expect and demand that degree of integrity.
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