Dispute Resolution Archives - Benest & Syvret

There’s no such thing as a free lift

hello@inboundthings.com — Wed, 05 Jun 2024 11:34:27 +0000

GREG HEROLD-HOWES

I recently secured the acquittal of a client in what I understand to be the first case of its kind in Jersey – the prosecution of a person for providing ‘Jersey lifts’.

This is a controversial topic, which over the years has been the subject of much debate. On the one hand, it is seen by users as community assistance, where a lift can be requested at seemingly any time in return for a contribution towards the cost of the journey (the word payment is deliberately avoided here).

On the other, the practice raises serious questions regarding passenger safety and insurance, and causes frustration for those who work within the regulated taxi industry.

Whilst many describe the giving of lifts as operating within a grey area, sitting somewhere between lift sharing and a cab service, I do not agree. The law is clear on what is required in order to make out the offence. Those offering lifts should be aware that they are at risk of prosecution, with a maximum £10,000 fine.

In addition, offering lifts may trigger connected offences such as driving without insurance.

One of the reasons for the rise of ‘Jersey lifts’ is that demand for taxis frequently outweighs supply. On busy nights in town, the wait for a taxi can be a long one; perhaps less of an issue in the summer, but a grim experience when the weather is poor. For many, ‘Jersey lifts’ seem to be the solution.

At the time of writing, there are over 40,000 members in the two principle ‘Jersey lifts’ groups on Facebook (obviously there will be some membership crossover). It is an active community, with a network of drivers offering lifts or passengers requesting them. One of those groups states on its frontpage that ‘it’s not illegal to do free lifts’. Whilst that disclaimer may be accurate, the reality is rather more complicated.

Legitimate, not-for-profit lift sharing – for example where friends might contribute towards the cost of a journey – is lawful and specifically permitted in certain circumstances under the law. What amounts to ‘profit’ however is up for debate.

Critics of the practice say that the taxi-industry is for valid reasons heavily regulated in terms of both entry to the profession and what drivers are able to charge passengers. PSV badges are only issued by the Inspector for Motor Traffic provided certain conditions are satisfied, with matters such as the fitness (physical and character) and capability of the driver being considered. Their conduct can be regulated and sanctions issued or a badge withdrawn.

A person with a poor driving record would likely struggle to obtain a badge to transport members of the public. By contrast, with ‘Jersey lifts’, passengers (who may have been drinking or otherwise potentially vulnerable) have very little information about their driver. They cannot have the same confidence that the standards which regulation provides are met.

In addition, there are serious potential insurance implications. Much will turn on the wording of the policy but underwriters may decline claims where they reach the view that otherwise insured drivers were driving for hire or reward, an aspect excluded under most standard motor policies. That creates a significant risk for those providing legitimate ride sharing in the event of an accident and also should have a cautionary effect on those seeking lifts. Should the worst happen, they might not be able to claim against the driver’s insurance for compensation or medical costs.

The prosecution in my recent case contended that my client was driving a public service vehicle without authority in breach of the Motor Traffic (Jersey) Law 1935 and that there was an agreement with passengers, from which a profit would be made. The Magistrate, having heard the evidence and submissions on the law, concluded that the prosecution had failed to make out its case to the criminal standard and returned not guilty verdicts. There will however be other examples where the facts will allow a successful prosecution.

I have no doubt that there are drivers out there who are breaching the law and regularly profiting from offering lifts. If caught and successfully prosecuted, they will face sanction. A potential solution might be an amendment to the law to widen the scope for which a driver might be prosecuted. For now, despite the risks faced by both drivers and passengers, the practice shows no sign of abating.

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Panel of Criminal Lawyers

Benest Syvret — Thu, 02 Feb 2023 17:55:25 +0000

You may have heard that there is now a panel of specialist accredited lawyers who deal with criminal law in Jersey. This ensures that your lawyer is an experienced specialist lawyer with expertise in this area of law.

Due to the recent changes to Legal Aid, if you are eligible for Legal Aid you can now choose your own lawyer from this panel of specialist criminal lawyers. This is an exciting development as it means that clients now get the benefit of choice of lawyer even if they are legally aided. They can choose someone they trust and can feel confident in their representation.

Advocate Darry Robinson is accredited to undertake this work. He has a wealth of experience dealing with criminal law matters and has represented numerous defendants in Jersey dealing with an extensive range of offences. Darry is known for his advocacy skills, attention to detail and his commitment to his clients. If you would like to know more about Darry please do not hesitate to contact us on 875875.

Are you eligible for Legal Aid for your criminal matter?

In order to be eligible for legal aid there are two tests that you need to satisfy;

The financial test;

You must evidence that you are financially eligible – your personal capital must be below £50,000 and your personal income below £50,000 or you are only in receipt of Income Support you may qualify for Legal Aid.
If either your capital or income exceeds the above you will not qualify.

The nature of the offence;

All criminal matters in the Royal Court;
All criminal matters in the Youth Court;
All criminal matters in the Magistrate’s Court, except minor motor-related and criminal offences.

If you think you may be eligible for Legal Aid please complete your application here Criminal | Legal Aid Jersey

If you are not eligible you can still contact Advocate Robinson and our criminal team in order to take advice on your criminal matter. Please contact us on 875875 or by email at Darry.robinson@benestsyvret.com and we will be happy to assist you.

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Human Rights in Jersey

Benest Syvret — Thu, 02 Feb 2023 17:37:20 +0000

The Royal Court has today published its judgment in a landmark Jersey Human Rights case involving a Jersey Family, where the Children’s Service and the States of Jersey Police have been found to have acted in breach of Article 8 of the European Convention for the Protection of Human Rights. The Court’s findings drew attention to the fact that that the actions of the Children’s Service were unlawful.

The underlying complaint is that the Children’s Service wrongly removed the children from the care of their parents and placed them in foster care. The police then wrongly exercised their protection powers to keep the children from the care of their parents.

The parents admitted to making an honest, well-intentioned misjudgement in the care of one child. It was the first instance of any misjudgement in the care of any of their otherwise loved and well cared for children. One of their children described the actions of the parents at school and the school contacted the Children’s Service to investigate the situation.

The mother was represented by Advocate Robinson an expert in Human Rights and Children’s law who said,

“The Children’s Service pressed the mother (who thought she had no alternative) to relinquish all of the children into foster care. The mother was not told she had any legal rights to object to her children being taken into care and she was not told that she could revoke any consent given.”

The Court found that the children’s mother and another family member were led to believe by the Children’s Service that the children would be returned to them on the Monday following removal of the children on the Friday. However, that did not happen, and all of the children were suddenly and traumatically separated from the care of their parents for over two weeks.

The Court held that even if the actions of the Children’s Service had been lawful, which they were not, they would still have been in breach of the Article 8 rights of this family because the actions of the Children’s Service were not proportionate in no less than nine different ways, which were all expressed in the judgment. The Children’s Service, being unwilling to see the children returned to their parents, made a request to the police to take the children into police protection and, in doing so, they subverted the process envisaged by the Children’s Law and bypassed court proceedings. The police did not in fact have reasonable cause to believe that each child would be likely to suffer significant harm if removed from the foster carers and returned to their parents, they relied on the wrongful opinion of Children’s Services.

The Court noted in their judgment that the mother’s advocate had written to the Children’s Service via the Law Officers’ Department, upon being appointed, explaining there were no grounds for emergency proceedings and asking for the immediate return of the children to the care of their

parents. Had the children been immediately returned to parental care at that point in time than the public costs associated with proceedings, which lasted for almost three years, might have been avoided.

Advocate Robinson also said,

“Central to this judgement are the children and the trauma they unnecessarily experienced due to the unlawful actions of the Children’s Service. A conciliatory sensible approach might well have avoided this unfortunate situation and the unnecessary distress caused to the children and their parents.”

We at Benest & Syvret remain committed to protecting the Human Rights of individuals and families in Jersey. For further information please contact Advocate Darry Robinson on tel. 875875 or by email at Darry.Robinson@benestsyvret.com

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