Your Constitutional Right to Drive

Post date: Mar 21, 2017 8:09:22 PM

This blog preamble is a brief explanation of the information presented at Court. The purpose and structure of the information is to let THEM know that I know their legal constraints. A lower court is bound by superior court decisions 'stare decisis'. They are bound by constitutional statutes which are superior to ordinary statutes. They are required to act without bias, to give you a fair trial, to make no error in law...

Read on...Enjoy.

The Constitutional Point.

Lord Diplock in Racal Communications Limited (1980) UKHL quoting Lord Denning MR said – "No court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends”. Pearlman v. Harrow School [1979] 1 Q.B. 56 at page 70.

The British constitution primarily draws from four sources: statute law, common law established through court judgments, parliamentary conventions, and works of authority.

1. Lord Bingham of Cornhill said : "The court has no licence to read its own predilections and moral values into the Constitution …" Reyes v The Queen [2002] AC 235, 246, para 26.
2. Lord Diplock said : "it cannot be too strongly emphasised that the British constitution, though largely unwritten, is firmly based upon the separation of powers; Parliament makes the laws, the judiciary interpret them...the role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was, and to giving effect to it. Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral..." Duport Steels Ltd -v- Sirs [1980] 1 WLR 142; [1980] 1 All ER 529.
3. Laws J said “If subordinate legislation cannot be construed in a way that makes it compatible with fundamental rights, it will be declared ultra vires.” Regina -v- Lord Chancellor ex parte John Witham [1997] EWHC Admin 237; [1998] QB 575.
1. Lord Bingham of Cornhill said : "As in the case of any other instrument, the court must begin its task of constitutional interpretation by carefully considering the language used in the Constitution. But it does not treat the language of the Constitution as if it were found in a will or a deed or a charterparty. A generous and purposive interpretation is to be given to constitutional provisions protecting human rights." Reyes v The Queen [2002] AC 235, 246, para 26.
2. Laws L.J. included the Acts of Union in a list of examples of constitutional statutes and, at sections 62 and 63, described constitutional statutes in the following manner: "We should recognise a hierarchy of Acts of Parliament: as it were 'ordinary' statutes and 'constitutional' statutes…… The special status of constitutional statutes follows the special status of constitutional rights…… Ordinary statutes may be impliedly repealed. Constitutional statutes may not……A constitutional statute can only be repealed, or amended in a way which significantly affects its provisions touching fundamental rights or otherwise the relation between citizen and State, by unambiguous words on the face of the later statute.” Thoburn v Sunderland City Council [Metric Martyrs] [2002] EWHC 195 Admin. Judgment in the Divisional Court.
   1. The founding document of a body is its constitution. As defined a constitution is – ‘The fundamental, underlying document which establishes the government of a nation or state’ and ‘A legislative charter by which a government or group derives its authority to act’.
   2. Act of Union 1707. Article 3 “That the United Kingdom of Great Britain be Represented by one and the same Parliament to be stiled the Parliament of Great Britain”. The Act of Union is the founding document of Parliament.
   3. Act of Union 1707. Article 4 “That all the Subjects of the United Kingdom of Great Britain shall from and after the Union have full Freedom…….to and from any port or place within the said United Kingdom”.
   4. Act of Union 1707. Article 25 “all Laws and Statutes in either Kingdom so far as they are contrary to or inconsistent with the Terms of these Articles ……shall from and after the Union cease and become void”.
   5. As an aside and to circumvent any fallacious argument, that the Articles of Union do not mention ‘driving’ or ‘cars’ and therefore do not provide protection as a defence to the Road Traffic Act (and others) I simply add. Ambiguity in a document favours those that did not write it, which is closely allied to the British law and lifestyle ‘that which is not forbidden is lawful’. The Articles do not mention horses or carts or even walking. It is clear the Articles include without limit ALL Freedoms to and from any port or place.
   6. The Acts of Union are the foundation of the UK Parliament. There is no provision to reform, amend or repeal the Articles. It is self evident that a government can not alter laws that predate its existence, especially ones from which it draws its authority. To do so undermines its authority to act. Even if the Articles could be repealed by the Road Traffic Act it would have to be in express terms, of which there are none.
   7. The Articles of Union recognised and recorded the pre-existing irrevocable rights of the people of Scotland and England. The Articles did not grant a right to ‘full freedom’, this would merely be a grant of privilege which could simply be removed by ‘ordinary statute’.
   8. “Parliament cannot sidestep a restriction in the constitution by a colourable device.” Ladore -v- Bennett [1939] 3 All ER 98; [1939] AC 468; 108 LJPC 69.
   9. The Articles of Union are entrenched and protected in perpetuity which was the intention of those that drafted them, to protect the subjects’ rights into the future.
   10. Lord Diplock said “A constitution, and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled, is to be given a generous and purposive construction. In the construction of statutory provisions which contravene human rights and freedoms there is a presumption of constitutionality.” Attorney-General of The Gambia -v- Momodou Jobe [1984] AC 689.
   11. Roodal v The State (Trinidad and Tobago) [2003] UKPC. Lord Rodger of Earlsferry quoting from Lord Millett : “the fundamental rights and freedoms of the individual must be entrenched against future legislative action if they are to be properly protected”. Pinder v The Queen [2002] UKPC 46; [2003] 1 AC 620, 628–629, para 15.
   12. Richard Tur, MA. LLB Hons (Dundee) holds university qualifications in Law, Jurisprudence and Philosophy and has been Benn Law Fellow at Oriel College, Oxford since 1979 – Law Notes – [Thoughts on The Union of England and Scotland (1920) p 252] Dicey, however, understood the point: "A sovereign parliament, in short, though it cannot be logically bound to abstain from changing any given law, may, by the fact that an Act when it was passed had been declared to be unchangeable, receive a warning that it cannot be changed without grave danger to the Constitution of the country".
   13. Richard Tur tutors law students at Oriel College Oxford and should therefore logically be considered as one of the foremost lecturers in shaping the legal minds of law practitioners.
   14. Article 25 writes in stark terms. Any law or statute contrary to or inconsistent with the Articles is void.
3. Lord Denning said – “If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”. Benjamin Leonard MacFoy v United Africa Co Ltd (1961). UKPC.
   1. If a void law or statute is used to prosecute one of the people and is done so knowing this to be the case, then the prosecutor has ‘dirty hands’ and is committing an offence.
   2. On the ‘balance of probability’ a Fiscal should know this to be the case. Scott LJ said – “The maxim that ignorance of the law does not excuse any subject represents the working hypothesis on which the rule of law rests in British democracy” Bilbie v Lumley and Others : (1802) 2 East 469, [1802] EngR 245, (1802) 102 ER 448. By illustrating the Fiscal has encountered this defence before would meet the criminal standard of ‘beyond reasonable doubt’ and thereby establish the following –
   3. That the fiscal is aware he is committing a criminal offence
   4. Is committing that offence to his benefit
   5. Is committing that offence to my injury
   6. But for his criminal actions I would not be addressing criminal charges.
   7. The doctrine ‘ex turpi causa non oritur actio’ applies and inherent in the defence is the principle that no court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.
   8. The United States Supreme Court had decided in Lawrence v Texas that non-commercial, private intimacy was a protected right, the law making fornication a crime was unconstitutional. Fornication is directly analogous to driving in this context as both are ‘mallum prohibitum’ and both are ‘unconstitutional’. Whilst court decisions from other common law jurisdictions are not binding upon British courts they are considered persuasive.
4. Travellers and Rights of Way at Common Law.
   1. “Save insofar as they are clearly and unambiguously intended to do so, statutes should not be construed so as to make alterations in the common law.” Leach -v- Rex [1912] AC 305.
   2. Wills J. said in regard to public right of passage "The only 'dedication' in the legal sense that we are aware of is that of a public right of passage, of which the legal description is a 'right for all Her Majesty's subjects at all seasons of the year freely and at their will to pass and re-pass without let or hindrance.' ". Ex parte Lewis (1888) 21 Q.B.D. 191.
   3. Lord Slynn reiterated Ex parte Lewis (1888) 21 Q.B.D. 191 Wills J said that a public right of passage is a "right for all Her Majesty's subjects at all seasons of the year freely and at their will to pass and re-pass without let or hindrance.". DPP v. Jones and Another [1999].
   4. Lord Evershed M.R. said, at p. 259: "The rights of members of the public to use the highway are, prima facie, rights of passage to and from places which the highway adjoins;”. Randall v. Tarrant [1955] 1 W.L.R. 255.
   5. It is the Crowns’ contention that the act of driving can only be lawful when done with the appropriate crown issued ‘licences and certificates’ – that the act of driving without these crown issued ‘licences and certificates’ is criminal – that driving is “in and of itself a criminal act”.
   6. In delivering the judgment of the Court of Criminal Appeal Swift J, said “If an act is unlawful in the sense of being in itself a criminal act, it is plain that it cannot be rendered lawful because the person to whose detriment it is done consents to it. No person can license another to commit a crime.” Regina v Donovan [1934] 2 KB 498 at 507, [1934] All ER Rep 207 at 210.
   7. The very fact that the Crown licences people to exercise their right of passage to pass and re-pass is prima facie that the act can not ‘in itself’ be a criminal act.
   8. Of course prior to the 1903 Motor Car Act, driving was a lawful act without a licence. The statute disregarded the constitutional rights of the people and criminalized driving ‘mallum prohibitum’.
   9. The doctrine of ‘stare decisis’ where a court is bound by the decisions of upper courts logically prevents the lower JP court from interfering with these clear statements on the public right of passage. The earlier constitutional argument notwithstanding.
   10. The Road Traffic Act is and should be considered unconstitutional.
   11. Prosecution Code (COPFS) - Domestic Law - “In considering cases the Procurator Fiscal must decide whether the conduct complained of constitutes a crime known to the law of Scotland…….the Procurator Fiscal must consider any relevant….case law.”
   12. This case should be dismissed.

The Constitutional Point in Summary.

No court has any jurisdiction to make an error of law on which the decision of the case depends and no licence to read its own predilections and moral values into the constitution.

A constitutional statute can only be repealed or amended by unambiguous words on the face of the later statute. In the construction of statutory provisions which contravene freedoms there is a presumption of constitutionality.

Where the meaning of statutory words is plain and unambiguous it is not for judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they consider that the consequences of doing so would be inexpedient or even unjust or immoral.

If subordinate legislation cannot be construed in a way that makes it compatible with fundamental rights it will be declared ultra vires.

If a statute is void it is incurably bad. Every proceeding found on it is incurably bad.

Fundamental rights and freedoms of the individual must be entrenched against future legislative action if they are to be properly protected.

Travelling is a protected right. The law prohibiting the right is unconstitutional.

"The Act of Unions' 25 Articles, the constitution of Parliament, contain no provision for repeal making them irrevocable and entrenched. Article 4 doesn't define a limit on the full Freedom afforded to the people of the United Kingdom to travel." Parliament cannot sidestep this constitutional restriction by a colourable device and "any subsequent statute that seeks to impose such a limit would immediately be contrary to Article 25 rendering the later statute void."

No person can licence another to commit a crime and prior to 1903 no licence was required.

The public right of passage is a right for all Her Majesty's subjects at all seasons of the year freely and at their will to pass and re-pass without let or hindrance.

Courts are bound by the decisions of upper courts with the doctrine of stare decisis.

The prosecution code dictates the fiscal must determine the complaint constitutes a crime and consider any relevant case law. Absent any case law in the case presented by the prosecution the presumption is no case law was considered relevant in the support of the prosecution case.

Ignorance of the law does not excuse any subject, is the working hypothesis on which the rule of law rests in British democracy. No one is above the law and everyone is equal before the law.

Given the prosecutions complete reliance on the Road Traffic Act and total avoidance in considering any other case law highlighted here, there is one inescapable conclusion. The prosecution case is self serving and has not been brought in the public interest. The insufficiency of the prosecutions evidence in contrast to the wealth of constitutional evidence makes it clear that criminal proceedings were inappropriate.

The prosecution has either made no assessment of public interest or has completely disregarded it. There is no victim and the right to cross examine the victim has been denied. Guilt has not been proven beyond reasonable doubt. No evidence was presented to show that the complaint constitutes a crime. In contrast the defence evidence highlights the crime is perpetrated against the accused and the wider community by the denial of protected constitutional rights and freedoms which is contrary to public interest.

The voice in the wilderness

mark@sovereign-state-fidach.com