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Tamara
my personal non-legal point of view is that he may have obtained his DL in error, we do not yet know, but surely to call it fraudulent implies knowledge that he was not entitled?
I used the word in the light of my legal experience and training and professional background.
I understand Doug went to UK to take the test. Not to live there and thus he did not cancel his EU Citizens Registration in Spain, as he would have been obliged to have done, if he had been intending to leave Spain to live in UK. .
If that is so, completing a form, saying he was living in the UK and showing his place of residence there, as opposed to visiting, almost certainly amounts to fraud and would justify legal proceedings.
I would be surprised if the DVLA and or Trafico would take a different view.
QUOTE:_
The term ‘normal residence’ is defined in relevant European legislation, in Article 9 of the second EC Directive on Driving Licences (91/439/EEC), which states:
“This is used to help define residency for EC/EEA nationals. For the purpose of this Directive, ‘normal’ residence means the place where a person usually lives, that is for at least 185 days in each calendar year, because of personal or occupational ties; or in the case of a person with no occupational ties, because of personal ties which show close links between that person and the place where he is living.”
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Tamara, i think the word that Johnzx uses, "fraudulently" is used by him in the context that what Doug did , Knowingly or unknowingly, did not comply with legislation, and as the licence was not obtained within the terms of defined legislation it was attained "fraudulently". I dont think in the circumstances Doug knew or intended that regulations were breached, but as Johnzx says, it makes the obtaining of the licence fraudulent. It would be up to the authorities at the DVLA to decide whether this would have been an intentional fraud, or done unwittingly at the point of application, and personally i feel the considered opinion would be sympathetic to Doug if he approached them regarding this.
My considered opinion is to approach the DVLA and explain that it has been found the licence might be considered "fraudulent" and ask if there is any way to remedy the situation, rather than hoping the situation will go away.
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Johnzx, i feel that the weblink i quoted, and you query as to whether it covers more than tax liabilty, relates more to actual residency also as why would a taxation leaflet have the title of "Residence, Domicile, and the remittance basis" ?
The words Residence, and Domicile relate to where you live, and do not have any dictionary defintion relating to tax liabilities, but may through being present in that country render you liable to tax, which is where "the Remittance Basis" comes into it.
This message was last edited by robertt8696 on 19/04/2013.
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I used the word in the light of my legal experience
You have no legal training or qualifications whatsoever as is more than evidenced by your lack of understanding of the principles involved (time and again on this forum), your inability to grasp the critical issues, by your misuse of specific terminology, by your numerous 'inventive' but deeply flawed suggestions (which I am sure you think are awfully clever) and by your history of providing misleading and innaccurate 'advice' on a whole range of topics.
You are - as I understand it - merely an ex-policeman of some kind. To refer to this as "my legal experience" is absurd. Anyone taking that at face value is likely to be seriously misled.
For those 'debating' the residence issue, the simple fact is that what matters is being "ordinarily resident" when you apply for a licence and take the test. There is no 'absolute' test for this. There is room for interpretation. In order for that to occur all relevant facts must be known and taken into account. We clearly do not know all the facts here, so the OP would be well advised to discuss this situation with a qualified solicitor who can provide further guidance.
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66D unlike you, in my profile, I have provided 'some details' of ‘who I am’. I didn not thoink it necessary to show my full CV. However, in showing I was a police officer, I have left myself vulnerable to rash, uniformed comments from some posters, who may have reason to dislike the police. Se la vie.
From your post, it appears you have little or no knowledge of the training, expertise, and functions of the police.
Throughout my 30 year career as a detective, the CID invested every kind of suspected crime, from shoplifting, involved company fraud, riots, murder etc.. All criminal cases: There was no other body to do it.
In the Met Police, even the most junior detective, straight from qualifying at Detective Training School made decisions on whether to charge a suspect with a criminal offence.
The job of a detective was to conducted the entire investigation into all cases without the requirement of guidance from any other professional than, if necessary, their senior CID officers. Detectives then either prepared all the evidence for a police solicitor or barrister to present in (now called) the Crown Court, but in many cases presented cases at Magistrates courts called witnesses, cross examined the defence etc.
Even one of my very junior detective, presented with the circumstances which Doug, in his own explanation, appears to have followed, would almost certainly have decide to charge him with an offence.
Nowadays, that might be an official caution, which in Law would amount to a conviction. ( That is because, if a person does not admit their guilt they cannot be cautioned).
This message was last edited by johnzx on 20/04/2013.
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From your post, it appears you have little or no knowledge of the training, expertise, and functions of the police.
I actually do. I worked for the CPS for several years.
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Surely John, as the senior detective, if your junior detectives had charged Doug with fraud, you would have needed to explain to them that they were perhaps a little premature? Understandable on their part, keen to jump in wi a quick charge, but as their supervisor and mentor you would have surely shown them that there needs to be DISHONEST INTENTION in order for something to be fraud by failing to disclose information. Otherwise - just think how many of us have occasionally made genuine mistakes, or failed to completely understand the complexities of a situation - would we ALL be charged with fraud? Whilst recognising that we are talking about a mistake made in the UK, so Spanish law is entirely irrelevant (I mention that, knowing it would be pointed out to me if I didn't do so first), I have a very close friend who was until last year a Chief of Police in Spain. We chatted about this instance, and he was shocked that English detectives in John's team would be so rash as to charge someone who is living in a quite complex situation (not everyone finds it complex, but to a young man like Doug moving to Spain and getting to grips with residency, tax, DL, etc it could be seen as complex), with a serious crime such as fraud when it obvious to most people (on the Clapham omnibus or the Barcelona tram) that a young British man not speaking Spanish took his test in the country he'd been living in for most of his life and did not have dishonest intention, did not seek to make a gain by it. However, he is only a Chief of Police in Spain and therefore his opinion is irrelevant. How disheartening to hear that the British police are so much more quick to classify Doug as a criminal rather than someone who made a fairly understandable error. Fraud by failing to disclose information (Section 3) The defendant: failed to disclose information to another person when he was under a legal duty to disclose that information dishonestly intending, by that failure, to make a gain or cause a loss. Like Section 2 (and Section 4) this offence is entirely offender focussed. It is complete as soon as the Defendant fails to disclose information provided he was under a legal duty to do so, and that it was done with the necessary dishonest intent. It differs from the deception offences in that it is immaterial whether or not any one is deceived or any property actually gained or lost.
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Blog about settling into a village house in the Axarquía. http://www.eyeonspain.com/blogs/tamara.aspx
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Fortunately, decisions over charging (for alll but the most minor offences) were removed from the police's jurisdiction 10 years ago.... and instead referred to qualified legal professionals who actually took a more measured and informed view of the case. Very large numbers of cases were being lost, and large sums wasted, on ill-concieved prosecutions that should never have taken place. The police 'mentality' (in my experience) tends to be unduly authoritarian, leading to biase and incorrect assumptions. I think we have seen some examples of that here....
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i have just come to read the latest posts this morning, and i am surprised at what i have found. Tha atmosphere seems to have turned somewhat nasty from some contributors (i mention no names, i do not point a finger), and the subject seems to have gone TOTALLY away from "British driving licence and Residence in Spain"
I think all contributors have put forward some very pertinent points and thoughts, but why has it descended to this? Oh, and talking about Police, where is the site Moderator while all these posts are being posted?
Peace to All, Friend of the people, Rob.
This message was last edited by robertt8696 on 20/04/2013.
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As a Decision Maker for DWP some years ago if an overpayment of benefit occurred it was classified as either Official Error, Mistake or Fraud. The Fraud classification could only be used if there had been a successful prosecution, cases were only considered for prosecution if after a thorough investigation by the DPW Fraud Team and on the balance of probability the claimant had knowingly obtained benefit by deceit. Certainly if information had been witheld (knowingly or not) but there was no loss to public funds there is no way a prosecution would be considered. I think it's perfectly reasonable that Doug thought being a British citizen with a right of abode in the UK that to take his test in UK was OK and if it was wrong for him to do this my classification would be Mistake. Ooops appear to be off topic still.
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Poppyseed
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Tamara
…………… if your junior detectives had charged Doug with fraud, you would have needed to explain to them that they were perhaps a little premature?
Please note. Not being fully aware of all the facts I did say , “ Even one of my very junior detective, presented with the circumstances which Doug, in his own explanation, appears to have followed, would almost certainly have decide to charge him with an offence.
66D.
I see why you did not disclose the fact that you working for the CPS in your profile, I woud not have done so either.
For those who do not know:-
The CPS was ‘invented’ just shortly before I retired. I will not bother to give details of some of the incredibly incompetent errors, the then second rate staff made in its first year or so. (Second rate because the pay was so low that no experienced, component lawyer, nor even legal assistant, would apply for a post).
I assume over the intervening years they have improved, although considering the number of cases that are not proceeded with, and the number of cautions which are recommended by the CPS, even for serious cases involving burglary, robbery, etc, that they are still taking the easy root and short-changing the public who deserve a lot better.
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Poppyseed, off topic still, but quite possibly a worthwhile contribution, Thanks!
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even for serious cases involving burglary, robbery, etc, that they are still taking the easy root and short-changing the public who deserve a lot better.
I need hardly add anything other than point out that a person who does not even undersand the difference betwen "root" and "route" is hardly in any position to deliver lectures to anyone.
I begin to see why you have such a problem understanding even simple pieces of legislation, much less being able to interpret them accurately.
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i have just come to read the latest posts this morning, and i am surprised at what i have found. Tha atmosphere seems to have turned somewhat nasty from some contributors (i mention no names, i do not point a finger), and the subject seems to have gone TOTALLY away from "British driving licence and Residence in Spain"
I would suggest that when you have self-appointed "experts" acting as judge and jury, and accusing people of acting "fraudulently" when it is self-evident that the most likely cause of the problem was an entirely innocent mistake, it is not surprising that some of us take exception to that. There are complex issues here of residence and entitlement to apply for licences. They are sufficiently complex to cause even those with substantial knowledge of the area to have to consider the facts and relevant legislation very carefully indeed. It is hardly surprising that an ordinary person could very easily make an innocent mistake. Talking about "charging him with an offence" is absolutely ludicrous and totally innappropriate. It is perfectly obvious that criminal intent was entirely lacking.
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66D
need hardly add anything other than point out that a person who does not even undersand the difference betwen "root" and "route" is hardly in any position to deliver lectures to anyone.
Well if that is the best reply you can come up with, I see why the CPS continue to make so many unprofessional errors, resulting in criminals, whom the public should be protected from, walking free.
PS As it is so very important to you, you missed the other typing error in my post 'woud'
And in your post, amusingly, 'undersand and betwen' !!! But don't worry, I know what you meant.
This message was last edited by johnzx on 20/04/2013.
This message was last edited by johnzx on 20/04/2013.
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Right , assuming Doug has obtained his licence not exactly 'legally' then can someone throw some light on two local spanish youngsters who have gone to work in the UK , some 2 years back, & whilst there have taken & passed UK driving tests whilst still being classed as spanish residents as they did not sign the ' Spaniards working abroad' register to temporarily relinquish spanish residency . Assuming when they come back & try to exchange licences they'll get knocked back ? Seems llike nonsense to me.
I can't believe too many of the 100k + spaniards working & living in the UK have signed the register ?
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Todos somos Lorca.
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Let's please not make this "personal" and stay on track while at the same time showing respect for eachother.
I don't think this thread is about "spelling"! Typos are common and to use them to judge someone's intelligence is offensive and will only incite them into argument, so stay on track and be polite at all times.
Thanks :)
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It would seem to me that they have obtained their licences properly, and although they haven't signed the "register", this doesn't mean that they were actually spanish residents, it just means they'll have hassle. They would be well advised to retain evidence of their time spent in the UK.
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But Doug's done exactly what they have & taken a test in the Uk whilst a resident foreigner ?
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Todos somos Lorca.
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yes, Gus, Doug has done this, and it seems you know Spanish Nationals who have also broken the same regulation, so they should be treated in exactly the same manner. The problem is, we all know the fact is they will all be treated differently. In a perfect world, the regulations will be applied equally to all persons, and checks will be made to verify that regulations have been abided by, and any transgressions will be enforced.
Except none of us live in a perfect world, and some will be found and dealt with, some will not. Unfortanately a lot of this variance in applying rules and regulations is due to some person, in some office, somewhere dealing with the matter, and each person being an individual will apply regulations differently, and this is Human Nature, its what makes us all different i am afraid. But then again, if we were all uniform and did the same things, and made the same decisions, how boring would life be?
Certainly thought provoking if nothing else......
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