Asbo

Not in Scotland as far as I am aware.

[yorkie_chris]

Fair enough, whole different debate anyway.

Yay! Another Police bashing thread!

Scots Law is designed with the need for corroboration in mind, therefore eliminating the nasty "one-v-one" allegations. Detaining a suspect under terms of Section 14 of the Criminal Procedure (Scotland) Act 1995, can only be done if the suspected offence is punishable by imprisonment. In reality, these means that it is only used for more serious offences, such as assaults, thefts, and cannot be used for pishy Road Traffic offences or urinating etc etc.

A detention does not give anyone a criminal record, and can only be used once, so most officers will try and gather evidence long before using it. For example, say that Joe Bloggs flags down PC Smith and PC Jones in the street and points to another male and says "that guy just robbed me". This statement is uncorroborated and there is insufficient evidence to arrest the suspect, however there is now reasonable suspicion to allow the officers to detain that suspect. The suspect is taken to a station and lodged into custody, which then allows 6 hours for the officers to note statements fro the victim, trace other witnesses, look at CCTV, and to interview the suspect. If there is sufficient evidence within that time, the suspect is arrested and charged. If there is not sufficient evidence gathered, the suspect is released without charge, not a scratch on his character. He cannot be re-detained for that offence, but he can be later arrested for it should further evidence come to light.


OP, from a Scottish cop to another Scottish resident:

S126 of the Anti-Social Behaviour (Scotland) Act 2004 is quite complex, and I think MBK hasn't quite interpreted it correctly (no offence intended at all btw!). It provides that a constable in uniform can seize vehicles which are used in a manner which causes alarm, distress or annoyance to members of the public if that constable has reasonable grounds for beleiving that a motor vehicle is being used on any occasion in a manner which contravenes Section 3 or 34 of the Road Traffic Act 1988.

Section 3 of the act is careless and inconsiderate driving, and is committed when any 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 that road or other public place.

Section 34 of the act is when a person, without lawful authority, to drive a motor vehicle on to or upon any common land, moorland or land of any other description, not being land forming part of a road, or on any road being a footpath or bridleway.

Bit of a mouthful eh?

Section 126 of the Act, provides that the constable my use these powers if he reasonably beleives that a person using the motor vehicle has

1. contravened either of those sections of that Act; and
2. caused, or was likely to cause, such alarm, distress or annoyance.

A VEHICLE CANNOT BE SEIZED IF ONLY ONE OF THESE FACTORS IS COMPLETE. BOTH THESE POINTS MUST BE SATISFIED.

The only offence under this legislation is if the person controlling the vehicle refuses to stop the vehicle and remain stopped when required to do so by said Constable. Of course, the offender could (and should) still be charged with either the Section 3 or 34 offence if there is sufficient evidence.

This power is commonly known as an "ASBO Vehicle seizure". Before a vehicle can be seized, the owner/driver needs to have been warned regarding the manner of driving. It is sufficient to administer a warning on the evidence of one person, be it Constable or member of the public. The warning is kept on file of the vehicle VRM and the drivers details for a period of 12 months. If the vehicle, or the driver, uses another (or the same vehicle) in a similar manner within that 12 months, and there is corroborative evidence of this use, then the vehicle can be seized.
The vehicle is then seized and the owner can retrieve it within 7 days by paying the recovery fee and any storage costs associated with the recovery of the vehicle. If the vehicle is not claimed within 3 months, the local authority can dispose of it.

The legislation was introduced to stop morons doing wheelspins down the High Street, or donuts in ASDA car park. The Off road bit is designed to stop off road motorbikes being used on public parks (or on Rugby pitches whilst a game is in progress, as recently happened to me).

In the OP's scenario, I would be highly surprised if any such action could be taken against the OP by the police. The vehicle is on private property, and not "on a road" (as per that definition) so cannot contravene Section 3 of the Act, and it is not on common land, moorland, bridleway or footpath, so cannot contravene Section 34. It may be irritating to your neighbour, but provided you are on your own property which no other person has a right of access to (right of ways etc), and also provided you're not breaking any other laws, then you're A-OK.

Thinking about it, if you were on a road or other public place, you would probably have been booked for having no MOT or VEL

If they did, I would let them dig their own graves and then complain like buggery through your solicitor for a hefty wedge of compensation and a nice letter of apology from the Deputy Chief Constable, as the officers have clearly misused their powers.


With regards to the 41 db thing being bandied about. This is a Local Authority level and is totally unconnected with the Police. If a LA agent measures the noise emitting from a particular property and it is in excess of the specified level, that agent can issue a Warning Notice on that property with a notice that they must not exceed the same level again within a period of time (specified on the notice). If that person does, then the Local Authority, or a relevant officer, can issue a fixed penalty of £100. Paying the fixed penalty is not a conviction or a charge, and no further action is taken. Failure to pay within 28 days means the local authority will proceed with prosecution through the Procurator Fiscal. The Authority can also apply to the court for a warrant to sieze the noise making equipment.

Frankly I think that legislation is pretty toothless, and I have never yet come across anyone who has had success with it.

I think if there is a continued course of conduct (ie Loud music every Friday and Saturday night without fail) then the council can apply to the court for a civil ASBO against the householder, which then carries more weight.

Judging by the OP's scenario, I would say that his chances of being in trouble with the LA is extremely slim. Extremely extremely slim! I think the police officer attending has perhaps "enlightened" you regarding the possibilities of this ASBO seizure, without telling you what it actually entails, with the idea that it scares you into not doing it again.

Overall, I would sleep easy in my bed at night, but I would still try and open some avenues of communication with the grumpy neighbour. Perhaps discuss the situation with some of the other neighbours to see if the have any objections? They may be of some use in the unlikely event of further problems.

My goodness, what a post! That's longer than most of my prosecution reports. Keep us posted with how you get on OP.

Originally Posted by Nelson

Yay! Another system bashing thread!

Corrected for you

[DarrenSV650S]

Thanks for that Nelson. That is quite reassuring

Originally Posted by Nelson

Lots of what seems to be very well informed stuff

Thanks for that, clears up most of the thread.

Originally Posted by Nelson

I think the police officer attending has perhaps "enlightened" you regarding the possibilities of this ASBO seizure, without telling you what it actually entails, with the idea that it scares you into not doing it again.

Guess the question here is, did he understand the legislation, or was he trying to scare. If the latter, did Darren really need a scare?

Originally Posted by Nelson

Detaining a suspect under terms of Section 14 of the Criminal Procedure (Scotland) Act 1995, can only be done if the suspected offence is punishable by imprisonment.

Originally Posted by Milky Bar Kid

and detain the other guy under terms of Section 14 of the Criminal Procedure (Scotland) Act 1995 on suspicion of a breach of the peace, allowing me 6 hours to investigate it further.

Is breach of the peace punishable by imprisonment?

Yes.

Originally Posted by Milky Bar Kid

Yes.

The more and more we dig into the law, the more and more it baffles the common man!

(I'm sure there was a head banging emotion somewhere but I can't see it so just imagine banging my head on the table instead)

Originally Posted by Davadvice

hi,

not read the whole post but in scotland (i think) thanks to tommy sheridan they cannot come on to your property to sieze anything. in a way if somone steps on your drive then you have the right to ask them to leave and if they don't they are effectively breaking the law.

If someone comes onto our property and doesn't move when they are told to, they are very likely going to get whacked about the body with an old RD400 fork stanchion with a gaffer tape handle on one end, courtesy of my very stocky housemate, and possibly get a few belts from this courtesy of me.

Originally Posted by Milky Bar Kid

Darren,

Hmmm, this is a tricky one. For the ASBO legislation to be utilised you need to have either committed a Section 3 RTA 1988 (careless driving) or Section 34 (driving a motor vehicle elsewhere than on a road). In my opinion, the Section 3 does not cover it but it could be seen as a contravention of a Section 34 HOWEVER, it could also be argued that a driveway falls into the definition of a road in Scotland which under the Roads (Scotland) Act 1984 is:

"anyway, other than a waterway, which there is public right of passage (by whatever means and whether subject to toll of not) and includes the road's verge, and any bridge (whether permenant or temporary) over which, or tunnel through which, the road passes and any other parts thereof."

And IIRC, it has been argued in court that a driveway and a pathway does have a public right of passage as members of the public can access it to approach your house.

We recently had a case where a guy was revving the tits of his old clapped out mini and driving up and down his driveway, purposely to annoy his neighbours. After a lot of discussion and debate we decided we couldn't ude the ASBO legislation. However, that is only my experience and it is a bit of a grey area.

Nelson, wish I had stuck to my original post instead of getting myself tangled up in knots with everyone firing questions at me!!! That's why I hate traffic legislation...

The only thing I would pick up on your post is saying its not a road...that has been argued and I think it is still a grey area.

And I wasn't suggesting they were gonna detain Darren, detention was only mentioned as a response to a question asked by Ralph.