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Christopher Booker's Notebook - Sunday Telegraph 13 February 2005

Two years ago, when pensioner Robert de Crittenden emerged from Sandwell council offices in the west Midlands, he was irritated to find a £30 fixed penalty ticket on his windscreen. He little realised he was embarking on a battle which calls into question the legality of the entire principle of automatic penalties, which now earn local authorities and government departments hundreds of millions of pounds a year.

As a student of constitutional law, Mr de Crittenden was aware that under the 1689 Bill of Rights, it is fundamental to British law that no one may be fined or financially penalised unless they have been convicted by a court. When he enquired into the right of traffic authorities to levy automatic fines for parking offences, he found their power to do this had been created by the Road Traffic Act 1991. This ignored the Bill of Rights by ruling that councils could levy such fines without having to go to court to prove their case.

But Mr de Crittenden was also aware of the historic judgement in the ‘metric martyrs’ case in 2002, in which Lord Justice Laws for the first time pronounced that there were certain ‘constitutional statutes’, such as the Bill of Rights, which cannot be set aside by subsequent legislation unless this is specifically stated.

This was crucial to the argument whereby Laws upheld the conviction of the ‘metric martyrs’. The law making it a criminal offence to sell goods in pounds and ounces was issued under the European Communities Act 1972. But the ‘martyrs’’ defence was that this had been overridden by the Weights and Measures Act 1985, which authorised continued selling in non-metric measures.

By ancient tradition, when one Act says something different from another, the later Act, by the principle of ‘implied repeal’, takes precedence. But Laws ruled that, since the European Communities Act was a ‘constitutional statute’, it could not be overridden by the 1985 Act, since this had not made the point explicit.

What Mr de Crittenden concluded, after conferring with the British Weights and Measures Association and Neil Herron of the Metric Martyrs Defence Fund, was that, if Lord Justice Laws was right, the 1991 Road Traffic Act could not implicitly repeal the relevant clause of the Bill of Rights, because, as Laws stated, this was a ‘constitutional statute’. Either the automatic penalty system was illegal; or Laws was wrong, in which case the metric martyrs should not have been found guilty.

Using this argument, Mr de Crittenden refused to pay his fine unless Sandwell took him to court. Two years later they have still not done so. But the significance of his challenge can scarcely be overestimated. Since his legal argument began to be widely circulated, ever more motorists have similarly refused to pay fixed penalties, in London and in towns across the country, including Sunderland, where Mr de Crittenden was last week again given a parking ticket, when he drove up to confer with Mr Herron in connection with this story.

The dilemma facing councils is stark. If they obey the law as it stands, they cannot impose parking tickets on hundreds of thousands of motorists without taking them to court. But if they do so, the court system would rapidly collapse. Furthermore the same applies to all other official bodies which have jumped on the ‘fixed penalty’ bandwagon, such as the Inland Revenue, which imposes an automatic £100 penalty on anyone late with a tax return.

If all these bodies imagine that, under the Laws judgement, they have a simple remedy – namely to rush through an Act of Parliament explicitly overruling the Bill of Rights – Mr de Crittenden has another trick up his sleeve. The Bill of Rights may have been enshrined in an Act of Parliament, but the Declaration of Rights on which it was based was a contract between the sovereign and the people. It is by that Declaration that the monarch occupies her office and by which Parliament enjoys its power, and it cannot be repealed. Thus, if Laws is right, fixed penalties without conviction cannot be legalised. Either that, or the metric martyrs were innocent.

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