Re: [TomAiello] Illegal base jumping
In reply to:
Would you have to apply for (and be denied) a permit in order to use this argument?
You’re gonna wish you hadn’t asked that.
Not necessarily. In order to bring an application for Judicial Review you have to have "standing". That used to be fairly well restricted to people who were directly effected by the decision... however over the past 20 years it’s been relaxed significantly so that pretty much any "publicly spirited individual" could challenge the decision.
I would suggest then that it's likely that pretty much any BASE jumper would have at least a good argument for having standing... on the other hand; you would certainly have it if you had previously been denied.
The main problem you'd have is that you have to apply for JR within 3 months of the decision (and you have to have exhausted all avenues of appeal), thus in practice the best way to do it is simply apply yourself and be refused... yes I know – then the park service know who you are.
Only then would you actually get to court to make your "Irrationality" argument (the "fettering" point I outlined above).
So, while JR is the proper mechanism by which a challenge of the park service's actions should be made... it would from the outset be a full on assault on the park service and really ought not to be undertaken unless the individual is really serious about it (and well aware of the potential costs consequences were something to go wrong).
In practice, your best way to bring this up is simply when you're up in front of the bench for BASE jumping. Simply stick that park service policy statement under the Judge's nose and point out to them their illegal stance. The prosecution's likely to jump up and down about it but hey, once the beak's seen the policy statement the damage is done.
As I presume you'd be up their being prosecuted under whatever legislation requires a permit (ie for failing to have the appropriate permit)... the judge is going to find it hard to convict you after you've shown how the park service is flouting that very same legislation by refusing to even consider permits.
The outcome I would be pushing for if I was defence counsel would be you to get off scott-free and the park service to get a good slap on the wrist. Still... nothing’s ever a given... if it was I’d be out of a job.
As before, this is all based on UK law and may not necessarily directly translate to Australia – get your own local advice before even considering doing anything silly.