How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Ash Your Own Question

Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
75100385
Type Your Law Question Here...
Ash is online now

Human rights act questionis it contrary to the human rights

Customer Question

Human rights act question

is it contrary to the human rights act article 6 (the unqualified right to a fair trial) for the prosecuting authority to be the agency to undertake direct action works on there own behalf ?

i am not sure if "direct action works " is the correct term but i will give you more detail.

the law in question is section 215 of the town and country planning act ,the LPA specify in the schedule of a section 215 order the action required relating to "the proper maintenance of land"

and then they have the power of "works action" to enter the property ,do what ever work they consider necessary and charge the land owner.
Submitted: 3 years ago.
Category: Law
Expert:  Nicola-mod replied 3 years ago.
Hello,

I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.

I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.

Thank you!
Nicola
Customer: replied 3 years ago.

Hi Nicola, i have until October before i have to have a solid and definitive answer so i can wait,and thanks for offering to continue searching,if not your group of experts i can't get any Human rights statments


 


Thanks

Expert:  Nicola-mod replied 3 years ago.
Hello,

We will continue to look for a Professional to assist you.

Thank you for your patience,
Nicola
Customer: replied 3 years ago.

i will continue to wait

Expert:  Nicola-mod replied 3 years ago.
Hello,

We will continue to look for a Professional to assist you. No need to reply further at this time.

Thank you for your patience,
Nicola
Customer: replied 3 years ago.

Thank you

Expert:  Ash replied 3 years ago.
Hello I am Alex and will help with this.

Article 6 only applies to criminal trials. It does not apply to civil matters and as such would not apply. In any event the right to a fair trial is qualified rather than absolute which means it can be limited.

I hope this helps and if you need anything further please let me know.

Customer: replied 3 years ago.

Hello Alex, i hoped i would not have to disagree with my "expert",so to avoid that situation can i get you to answer the question while assuming that the the law in question comes under the scope of "criminal trial"


 


if in answering my question you come across any thing that is "Quaiified " please highlight it.


 


if you look at "Blackstones guide to Human rights act 1998"8.182 page 141


it states "The Article 6 (1) right to a fair trial is absolute, but the constituent rights are not and may be limited ..."

Expert:  Ash replied 3 years ago.
If you are proseucted in the Magistrates Court then the right is about fairness and the speed of the trial. This is no enshrined in the criminal procdure rules. The right itself states - everyone shall have a fair and public hearing by an independent and impartial tribunal. The general right itself is absolute but parts may be limited. That is wha I meant when I say limited.

It would be for a court to enforce who decides the matter. If the person seeking the order also granted the order without a right of appeal, this would be unfair. However what you are seeking is a judicial review of a public body decision in the absence of an appeal. This is the process you need to follow, appeal if appropriate and then judicial review,

This exercises your right as the matter is cmsidered by a judge indpeednant of the original tribunal. I hope this makes sense.

Customer: replied 3 years ago.

Thank you for the additional information,


 


 


i need to make a human rights defense case, in an appeal to the Crown court retrying, the appeal to the Magistrate court hearing


 


in a hypothetical situation (as it is, in fact, at the moment) i have lost an appeal against the section 215 order the prosecuting authority are the same as the agency who would be empowered to do the direct works


would it be a valid claim under article 6 that the execution of the "direct works" represented an unfair trial ?


 


 


 


 

Expert:  Ash replied 3 years ago.
No. It is only unfair if you show that the Judge was biased in some way. Generally the Judiciary are appointed independently of any other body and if there is an interest, they will declare it and not sit. So you could try and advance that argument but it would fail for all the reasons I have given. Alex

Customer: replied 3 years ago.

Hi Alex , thanks for your help, it looks as if i am not getting my point over.


 


I will try to simplify the question by breaking it down to avoid ambiguity, i have tried this system with another expert and it was unsuccessful


 


So if you want to help me say so ,if you don't i will put the simpler question to another expert


 


First simplification:-


According to the literature under the human rights act the term "trial" has a very wide scope and covers local council actions.


 


Would you agree or disagree that the decisions taken by the councils planning officers,or agents in a "direct actions of works" (again not sure if this is the correct term) qualify as a "trial" under the human rights act


 


The severity of "direct actions of works" in depriving ,argualaby ,a person of there property in contravention of another qualified right to the "enjoyment of there posessions" is sufficent to encompass the right to a fair trial

Expert:  Ash replied 3 years ago.
Yes i do wish to help you, it maybe that I misunderstand what you are saying. Local council actions would cover a fair trial. But the term fair trial only applies to the judiciary. It means that those who hear the trial should be fair. This means the judge ought not be be biased. Those prosecuting should bring the prosecution and comply with the criminal procedure rules. Fair trial would cover council actions but they must comply with those rules. If you are aggrieved about the council carrying out work then this would be the process. A notice would have been served and you would have appealed that decision. If the notice was not complied with the council can do the work or seek a court order requiring the work to be done. This means that a fair trial would be set down in accordance with the rules, which would be the act that gives the council the power. Have I understood the question?

Customer: replied 3 years ago.

Thank you for your commitment to 100% satisfaction


 


i have read (and think i understand) your response. it appears that i can't


simplify and separate the question.


 


if there no "judgment " relating to the "works" then the works process is not unfair ,so my simplified example is not any good


 


 


Simplified example 2:-


 


(a) the council makes a section 215 order , this is a judicial process


(b) there is no appeal (for clarity) a challenge under the HRA is lodged


(c) the council instigated "direct action works"


 


the original action by the council is in breach of article 6 because they are the same authority that deprives me of my property


 


 


 


 

Expert:  Ash replied 3 years ago.
The process is this, the Council serve a notice pursuant to Section 215 of the Town and County Planning Act 1990. If you disagree then you have a limited time to appeal to the Magistrates Court. This is your right to a fair trial - you are being given a chance to appeal. If you do not appeal then the Council can carry out the works. Therefore the Article 6 right is complied with because you do have a right to appeal - if you chose not to then you lose that right. For guidance please see: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/11491/319798.pdf - Alex

Customer: replied 3 years ago.

i know all that , assume i am out of the country for 30 days and it goes on without my knowledge or i fail to pay the court fee and am refused an appeal ?

Expert:  Ash replied 3 years ago.
Yes. You could seek to appeal out of time, but you would need the courts permission. But you would have to pay the court fee of course. Alex.

Customer: replied 3 years ago.

That was not the meaning of my response ,


 


"assume i am out of the country for 30 days and it goes on without my knowledge or i fail to pay the court fee and am refused an appeal ?"


 


the question was from the previous reply


is the original action by the council is in breach of article 6 because they are the same authority that deprives me of my property

Expert:  Ash replied 3 years ago.
I see. Article 6 would only be breached for example if there was no right of appeal. Just because you did not appeal or pay the fee does not violate your right in this regard. You had a right to appeal and you may or may not have exercised that right. Alex

Customer: replied 3 years ago.

you are not answering my question, i think there is no point in progressing.


 


thank you for your efforts

Expert:  Ash replied 3 years ago.
Forgive me, perhaps it is my fault for not understanding. I want to resolve this for you, so may you ask it again but be clear so that I understand?
Customer: replied 3 years ago.

Thank you for your patience, i will give you a broader view .


 


I have been hounded by my local council for 13 years and in the last ten years,been bullied and threatened and finally prosecuted ,i have lost my ability to work as a skilled professional and subsequently lost my employment now i have no money and have been driven into mental illness.


 


i have formed the opinion that the council abuse the law in the form of section 215 of the town and country planning act. and it is a law designed to be abused. I complained to the members of the council i made official complaints to the council i complained to the ombudsman and was institutionally ignored. the ombudsman actualy said to "you can resolve your problem by doing what the council tell you to do,


 


the law is further abused by the court system and i did not receive a fair trial at the magistrates hearing where i had £9,923.00 award against me in costs.


 


i am now facing a crown court hearing with worsening mental health, no legal representation no money and the additional problem that i can not ever get a straight from any lawyer to build my appeal case.


 


i started to ask big questions of "Just answers" and just got evasive answers avoiding addressing the the points i required clarity for.


 


when i changed my approach and asked narrow questions, i posted three,you got one of them the other two are unanswered ,they are simple questions and should be no problem for a qualified professional legal people.


 


 


 

Expert:  Ash replied 3 years ago.
I see. The crown court is that where you have appealed the decision of the magitrates?
Customer: replied 3 years ago.

yes, my grounds of appeal are that section 215 is in opposition to the HRA article 6


 


the process is in opposition to HRA article 8 article 14 and schedule 1 article 1


 


there is a defense under all four of the appeal clauses of section 217


 


There are article 6 arguments against the pre section 215 issue under the councils own concordat


 


there is abuse of power in the issuing of a Certificate of lawfull use in 2001


 


i asked you one of the many article 6 questions


 


my 1st article 6 argument :-


 


section 215 is on its own a breach of article 6 and an invitation to abuse planning law, the "trial" is undertaken by the planning authority in the absence of the defendant the LPA then has the role of judge jury and the power of sentence. the defendant then is advised that he has 28 days to appeal before he is punished by criminal law.


 


Section 215 is a breach of article 6 because if you can not pay the court costs you are punished by criminal law after 28 days


 


Section 215 is in breach of article 6 because it circumvents the right to be guaranteed to be innocent until proved guilty ,the term appeal proves that the "trial" has to have occurred. the standard of proof in the appeal is to prove that the result of the "trial" is incorrect.


 


section 215 is in breach of article 6 because the prosecuting authority is also the authority that interprets and actions the section 215 schedule on the order, in direct action works.


 


section 215 is in breach of article 6 because your right to have access to the evidence against you, clearly as you are not at the trial you can not see the evidence that is used against you


 

Expert:  Ash replied 3 years ago.
Normally article 6 would only be raised in terms of judicial review proceedings. That is where a local authority is acting beyond its powers or the decision taken is unreasonable. This would be the proper place to raise a human rights argument in terms of right to a fair trial.

However the problem you have is this. There was a notice by the council, you appealed that decision, the appeal was heard in the Magistrates court and you lose. You are now appealing that decision to the Crown Court. The Crown court is unlikely to want to go into human rights arguments as judicial review is the place for that. The crown court will simply want to be satisfied that the court below made the right decision.

In terms of disclosure you should have received a bundle of documents before the magistrates court. If not then this is a breach of the article 6 right and the procedure rules and a ground of appeal. But the appeal is based on the rules rather than the human right. Alex.
Customer: replied 3 years ago.

your answer is in direct conflict with the books i have been reading, the previously mentioned Blackstones guide to the human rights act ,appears to state that human rights legslation can be raised in any interaction with the state, be it courts, tribunals, local government ,prisons.


 


human rights claims can also be preemptive and stand alone the overriding condition is that there has to be a "victim"


 


i was able to raise human rights issues at the magistrates court hearing ,but they were not addressed by the judge in a satisfactory manner, that is why i am tring to get expert advise to make a more robust case in the crown court.

Expert:  Ash replied 3 years ago.
Yes I understand what you are saying, you are appealing on a point of law. Normally human rights by a public authority are dealt with by judicial review. But I see you want to raise it now. No need to reply to this.

What Customers are Saying:

 
 
 
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
< Previous | Next >
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
  • A quick response, a succinct and helpful answer in simple English. I believe I can now confront the counter party with confidence -- worth the 30 bucks! Rick
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C.
  • This expert is wonderful. They truly know what they are talking about, and they actually care about you. They really helped put my nerves at ease. Thank you so much!!!! Alex
  • Thank you for all your help. It is nice to know that this service is here for people like myself, who need answers fast and are not sure who to consult. GP
  • I couldn't be more satisfied! This is the site I will always come to when I need a second opinion. Justin
  • Just let me say that this encounter has been entirely professional and most helpful. I liked that I could ask additional questions and get answered in a very short turn around. Esther
 
 
 

Meet The Experts:

 
 
 
  • Jo C.

    Jo C.

    Barrister

    Satisfied Customers:

    30316
    Over 5 years in practice
< Previous | Next >
  • http://ww2.justanswer.co.uk/uploads/EM/emus/2015-7-7_192327_bigstockportraitofconfidentfemale.64x64.jpg Jo C.'s Avatar

    Jo C.

    Barrister

    Satisfied Customers:

    30316
    Over 5 years in practice
  • http://ww2.justanswer.co.uk/uploads/BE/benjones/2015-12-1_0437_ennew.64x64.jpg Ben Jones's Avatar

    Ben Jones

    UK Lawyer

    Satisfied Customers:

    11553
    Qualified Solicitor - Please start your question with 'For Ben Jones'
  • http://ww2.justanswer.co.uk/uploads/BU/Buachaill/2012-5-25_211156_barrister5.64x64.jpg Buachaill's Avatar

    Buachaill

    Barrister

    Satisfied Customers:

    1754
    Barrister 17 years experience
  • http://ww2.justanswer.co.uk/uploads/JO/jojobi/2013-3-19_0265_maxlowryphoto.64x64.jpg Max Lowry's Avatar

    Max Lowry

    Advocate

    Satisfied Customers:

    894
    LLB, 10 years post qualification experience
  • http://ww2.justanswer.co.uk/uploads/UK/UKLawyer/2012-4-12_9849_F2.64x64.jpg UK_Lawyer's Avatar

    UK_Lawyer

    Solicitor

    Satisfied Customers:

    750
    I am a qualified solicitor and an expert in UK law.
  • http://ww2.justanswer.co.uk/uploads/KA/Kasare/kasare.64x64.jpg Kasare's Avatar

    Kasare

    Solicitor

    Satisfied Customers:

    402
    Solicitor, 10 yrs plus experience in civil litigation, employment and family law
  • http://ww2.justanswer.co.uk/uploads/OS/osh/2015-7-7_19268_gettyimagesb.64x64.jpg Joshua's Avatar

    Joshua

    Lawyer

    Satisfied Customers:

    8199
    LL.B (Hons), Higher Prof. Dip. Law & Practice