Laws that contain no offence or penalty

plodder

Out of a discussion on another forum, I was wondering what is the significance of laws that say you must do something, but don't refer to any offence (and resulting penalty) for not complying.

I'm talking specifically about road traffic law as it applies to pedestrians. The law says you must use a footway, when there is one, but I don't see any offence or penalty for failing to comply. Is there some catch-all (generally acting the maggot) type of offence that the gardai could charge you with?

What is the point of such legislation otherwise?

Cpt Sh!t Craic

plodder wrote:

The law says you must use a footway, when there is one, but I don't see any offence or penalty for failing to comply. Is there some catch-all (generally acting the maggot) type of offence that the gardai could charge you with?

Any legislation that doesn't provide penalty is simply a suggestion, if you have an example please share!

Section 98 road traffic act is pretty straightforward obstruction to traffic.

There is an offence of endangerment under Section 13 non fatal offences against the person act in serious cases where there is a threat to life

plodder

Ah never mind. I took a proper look this time. I was referring to the road traffic general bye-laws 1964, which don't mention anything about offences. But, it's there in the main 1961 act, that :-

(5) A person who contravenes a bye-law under this section shall be guilty of an offence.

It arose out of a discussion about the rules of the road. Some people seem to have the notion that the "rules" don't have the force of law behind them..

Cpt Sh!t Craic

plodder wrote:

It arose out of a discussion about the rules of the road. Some people seem to have the notion that the "rules" don't have the force of law behind them..

I see, I haven't been on boards that long but I have noticed some people with notions all right...

seamus

plodder wrote: »

It arose out of a discussion about the rules of the road. Some people seem to have the notion that the "rules" don't have the force of law behind them..

Chinese whispers.

The Rules of the Road - as in, the book produced by the RSA/government - is not a legal document. Failure to abide by the rules of the road as set out in that book, does not in itself constitute an offence because the ROTR is not legislation.

That's possibly where this confusion arises. As the book itself states;

It is an interpretation of the law from a road safety view; it is not the law.

However, this doesn't mean that you cannot be or won't be prosecuted for breaking the rules of the road - since the rules are already underpinned by legislation, 99.9% of the time, breaking a rule of the road is also covered by an offence in legislation.

The 0.1% discrepancy comes from instances where an individual may breach a rule of the road but because of a judicial ruling, a legal loophole or a misinterpretation by the ROTR, they haven't actually broken any law.

plodder

I agree, though I think it's an anomaly that the ROTR refers to dozens of offences that apply to road traffic, but none to pedestrians, even though there are rules that say pedestrians MUST do certain things. It doesn't say you would be committing an offence by breaking them.

I've never heard of the gardai prosecuting pedestrians, but there definitely is a legal basis for it. The madatory rules that apply to pedestrians are definitely offences when breached. So, why doesn't the ROTR point that out?

Cpt Sh!t Craic

plodder wrote:

I've never heard of the gardai prosecuting pedestrians, but there definitely is a legal basis for it. The madatory rules that apply to pedestrians are definitely offences when breached. So, why doesn't the ROTR point that out?

Everything in the ROTR book has a basis in legislation, otherwise it's all just suggestions. I don't know why they don't , I presume they just don't want to scare people by constantly referring to legislation and penalties.

It all comes down to how strictly the legislation is interpreted and wether enforcement is in the public interest

The ROTR book says pedestrians should look left, look right, ensure there is no oncoming traffic etc before crossing the road. If a person omitted doing this before crossing the road and then caused an obstruction to traffic: is he guilty of an offence? Technically yes, but it's minor and probably not in the public interest to prosecute.

Section 98 RTA: A person shall not do any act (whether of commission or omission) which causes or is likely to cause traffic through any public place to be obstructed.

On strict interpretation, this could also be used to prosecute people for simple J walking, but fortunately our Garda are not as money hungry as the capitalist American police.

hullaballoo

Here's a proscriptive law that applies to drivers for which there is no associated penalty that I can find: http://www.irishstatutebook.ie/2009/en/si/0548.html

IrishStatuteBook.ie wrote:

1. These Regulations may be cited as the Road Traffic (Display of Test Disc)
Regulations 2009.
2. In these Regulations “test disc” means that part of a test certificate, for the
time being in force in respect of a mechanically propelled vehicle, which may
be detached from the certificate to be affixed to the vehicle in accordance with
Regulation 3.
3. A test disc shall be affixed to the inside of the front windscreen of the
vehicle to which it relates. The disc shall be affixed so that it is visible for
inspection.

It doesn't say not affixing a test disc is an offence and it does not in itself state what, if any penalty is to be applied for failure to comply. Genuinely baffles me, this SI.

GerardKeating

plodder wrote: »

Out of a discussion on another forum, I was wondering what is the significance of laws that say you must do something, but don't refer to any offence (and resulting penalty) for not complying.

I'm talking specifically about road traffic law as it applies to pedestrians. The law says you must use a footway, when there is one, but I don't see any offence or penalty for failing to comply. Is there some catch-all (generally acting the maggot) type of offence that the gardai could charge you with?

What is the point of such legislation otherwise?

it used to be the case that Driving (while on a Provisional Licence) with no accompanying Drive was an offence, but no punishment was defined, but they "fixed" that a few years day.

Some times it's an oversight.

Cpt Sh!t Craic

hullaballoo wrote:

It doesn't say not affixing a test disc is an offence and it does not in itself state what, if any penalty is to be applied for failure to comply. Genuinely baffles me, this SI.

What you've quoted is not the legislation.

NamelessPhil

hullaballoo wrote: »

Here's a proscriptive law that applies to drivers for which there is no associated penalty that I can find: http://www.irishstatutebook.ie/2009/en/si/0548.html


It doesn't say not affixing a test disc is an offence and it does not in itself state what, if any penalty is to be applied for failure to comply. Genuinely baffles me, this SI.

The penalty that applies is under the associated Section 11 of the principal act. Section 11 permits a minister to make regulations in relation to the use of vehicles in public places and sub-sections 4 and 5(a) of Section 11 state that:-

"(4) A person shall not use in a public place a vehicle which does not comply with a regulation under this section applying in relation to the vehicle.
(5) (a) A person who contravenes subsection (4) of this section or a regulation under this section shall be guilty of an offence and, where the contravention is of the said subsection (4) and such person is not the owner of the vehicle, such owner shall also, in such cases as may be prescribed, be guilty of an offence."

NamelessPhil

To understand such SIs as the one quoted by hullaballoo above, you have to refer to the associated sections of the principal acts. Essentially you have to reverse engineer them. The SIs do not exist in a vacuum, they need the context of the Acts.

buckfasterer

plodder wrote: »

I agree, though I think it's an anomaly that the ROTR refers to dozens of offences that apply to road traffic, but none to pedestrians, even though there are rules that say pedestrians MUST do certain things. It doesn't say you would be committing an offence by breaking them.

I've never heard of the gardai prosecuting pedestrians, but there definitely is a legal basis for it. The madatory rules that apply to pedestrians are definitely offences when breached. So, why doesn't the ROTR point that out?

Does this apply to runners that run on the road and not the pavement? It's almost a daily occurance now where there are groups of runners at that run where they want.

hullaballoo

Cpt Sh!t Craic wrote: »

What you've quoted is not the legislation.

I don't follow. I never mentioned any legislation.

NamelessPhil wrote: »

The penalty that applies is under the associated Section 11 of the principal act. Section 11 permits a minister to make regulations in relation to the use of vehicles in public places and sub-sections 4 and 5(a) of Section 11 state that:-

"(4) A person shall not use in a public place a vehicle which does not comply with a regulation under this section applying in relation to the vehicle.
(5) (a) A person who contravenes subsection (4) of this section or a regulation under this section shall be guilty of an offence and, where the contravention is of the said subsection (4) and such person is not the owner of the vehicle, such owner shall also, in such cases as may be prescribed, be guilty of an offence."

Thanks for that, but where is the penalty associated with the offence?

I can find other offences that ascribe an €80 fixed penalty for an offence under s. 11 but these are enumerated in schedules. I cannot find anything that specifically relates to the offence under SI 548/2009.

I don't expect anything to say, the penalty for not affixing a test disc is X but even reverse engineering this, as you suggest, I cannot find a tie between not affixing a disc and a penalty.

Pro Hoc Vice

hullaballoo wrote: »

I don't follow. I never mentioned any legislation.


Thanks for that, but where is the penalty associated with the offence?

I can find other offences that ascribe an €80 fixed penalty for an offence under s. 11 but these are enumerated in schedules. I cannot find anything that specifically relates to the offence under SI 548/2009.

I don't expect anything to say, the penalty for not affixing a test disc is X but even reverse engineering this, as you suggest, I cannot find a tie between not affixing a disc and a penalty.

I assume the following has been amended,

http://www.irishstatutebook.ie/1961/en/act/pub/0024/sec0102.html#sec102

General penalty.
102.—Where a person is guilty of an offence under any section or subsection of a section of this Act and, apart from this section and disregarding any disqualification that may be capable of being imposed, no penalty is provided for the offence, such person shall be liable on summary conviction—

(a) in the case of a first offence under that section or subsection—to a fine not exceeding twenty pounds,

(b) in the case of a second offence under that section or subsection, or of a third or subsequent such offence other than an offence referred to in the next paragraph—to a fine not exceeding fifty pounds, and

(c) in the case of a third or subsequent offence under that section or subsection which is the third or subsequent such offence in any period of twelve consecutive months—to a fine not exceeding fifty pounds or, at the discretion of the court, to imprisonment for any term not exceeding three months or to both such fine and such imprisonment.


The section covers SI as a breach of an SI is a breach of the Principle Act

http://www.irishstatutebook.ie/1961/en/act/pub/0024/sec0088.html#sec88

(5) A person who contravenes a bye-law under this section shall be guilty of an offence.

So its really simple, if a section provides a penalty then thats it, if not then the General Penalty applies.

hullaballoo

Pro Hoc Vice wrote: »

I assume the following has been amended,

http://www.irishstatutebook.ie/1961/en/act/pub/0024/sec0102.html#sec102

General penalty.
102.—Where a person is guilty of an offence under any section or subsection of a section of this Act and, apart from this section and disregarding any disqualification that may be capable of being imposed, no penalty is provided for the offence, such person shall be liable on summary conviction—

(a) in the case of a first offence under that section or subsection—to a fine not exceeding twenty pounds,

(b) in the case of a second offence under that section or subsection, or of a third or subsequent such offence other than an offence referred to in the next paragraph—to a fine not exceeding fifty pounds, and

(c) in the case of a third or subsequent offence under that section or subsection which is the third or subsequent such offence in any period of twelve consecutive months—to a fine not exceeding fifty pounds or, at the discretion of the court, to imprisonment for any term not exceeding three months or to both such fine and such imprisonment.


The section covers SI as a breach of an SI is a breach of the Principle Act

http://www.irishstatutebook.ie/1961/en/act/pub/0024/sec0088.html#sec88

(5) A person who contravenes a bye-law under this section shall be guilty of an offence.

So its really simple, if a section provides a penalty then thats it, if not then the General Penalty applies.

http://www.irishstatutebook.ie/2006/en/act/pub/0023/sec0018.html

Mystery solved. Maximum fine of €1,000 for a first offence with €2,000 for subsequent offences.

Now that that's sorted, is that constitutional?

plodder

buckfasterer wrote: »

Does this apply to runners that run on the road and not the pavement? It's almost a daily occurance now where there are groups of runners at that run where they want.

that's the context the question arose from

It's interesting that the UK highway code only says people SHOULD use paths/the pavement when one is provided. So, presumably it's not mandatory there.

But, given that prosecution of pedestrians is so rare (if it in fact ever occurs), like any law, it might as well not exist, if it's not actually used and enforced.

Victor

plodder wrote: »

It's interesting that the UK highway code only says people SHOULD use paths/the pavement when one is provided. So, presumably it's not mandatory there.

It needs to be read in the context of must / must not against should / should not. Would you use the footpath if there was a rabid go chained there?

http://www.highwaycodeuk.co.uk/download-pdf.html

Introduction

Many of the rules in The Highway Code are legal requirements, and if you disobey these rules you are committing a criminal offence. You may be fined, given penalty points on your licence or be disqualified from driving. In the most serious cases you may be sent to prison. Such rules are identified by the use of the words ‘MUST/MUST NOT’.

Rules for pedestrians

1. General guidance
1. Pavements (including any path along the side of a road) should be used if provided. Where possible, avoid being next to the kerb with your back to the traffic. If you have to step into the road, look both ways first. Always show due care and consideration for others.

It is more explicitly explain int he Irish version: http://www.rulesoftheroad.ie/rules-of-the-road-eng.pdf

It uses must and must not to draw attention to behaviour the law clearly demands or forbids.

It uses terms such as should and should not to tell you how best to act in a situation where no legal rule is in place.

big tommy

what about slow drivers that never look in their mirrors and dont give a **** about any other road user that might actually be in a hurry and dont want to break speed limits etc but sometimes are forced to by these drivers.

Pro Hoc Vice

hullaballoo wrote: »

http://www.irishstatutebook.ie/2006/en/act/pub/0023/sec0018.html

Mystery solved. Maximum fine of €1,000 for a first offence with €2,000 for subsequent offences.

Now that that's sorted, is that constitutional?

Why would it not be constitutional?

hullaballoo

big tommy wrote: »

what about slow drivers that never look in their mirrors and dont give a **** about any other road user that might actually be in a hurry and dont want to break speed limits etc but sometimes are forced to by these drivers.

Probably one of the wishy-washy offences like driving without due care and attention.

Unfortunately, it's not really one the Gardaí have the time or resources to hunt down and certainly not prosecute.

That said, I have seen slow drivers pulled over by Gardaí when safe to allow traffic to pass. Presumably there would have been a good talking to.

hullaballoo

Pro Hoc Vice wrote: »

Why would it not be constitutional?

We'd yo-yo for weeks answering questions with questions on this forum.

Are you saying it is constitutional? :pac:

big tommy

or drivers that hug the fast lane ...............

plodder

Pro Hoc Vice wrote: »

Why would it not be constitutional?

If not unconstitutional, it's a good example of fine inflation. From 20 punts to 1000 euro, and 50 punts to 2000 euro is quite an increase.

Peregrinus

hullaballoo wrote: »

We'd yo-yo for weeks answering questions with questions on this forum.

As long as nobody offers any reason for thinking that it's unconstitutional, the possilibility of much yo-yoing is pretty slight.

hullaballoo wrote: »

Are you saying it is constitutional? :pac:

There's a presumption of constitutionality. The courts will presume legislation to be constututional unless and until somebody is prepared to mount an argument to show that it isn't.

Pro Hoc Vice

plodder wrote: »

If not unconstitutional, it's a good example of fine inflation. From 20 punts to 1000 euro, and 50 punts to 2000 euro is quite an increase.

The original Act was 1961, the average industrial wage in 1969 was almost £20.