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Sunderland City Council Parking Ticket 'Amnesty' Decision Could Cost London Councils and Transport for London Hundreds of £millions in outstanding parking fine revenue.
Sunderland City Council has been involved in headline news over the past year concerning the legality of its Decriminalised Parking Enforcement (DPE) regime. To date refunds totalling over £34,000 have been made to motorists ticketed unlawfully. This is only the tip of the iceberg with many thousands more to come.
However, the latest revelations and admissions are going to have other DPE local authorities urgently consulting lawyers, and particularly those London authorities that are about to find themselves facing the same legal dilemma as Sunderland City Council.
Following complaints about the legality of Sunderland's DPE regime an internal investigation has revealed problems on a massive scale. One particular problem concerns the correct legal wording of the Penalty Charge Notices.
Freedom of Information requests have revealed that Sunderland City Council became aware that their tickets did not conform to statute on 16th May 2005 (after receiving the NPAS Circular 1 MacArthur v Bury). An instruction on 14th June 2005 from the City's Legal Department to Parking Services ordered that the PCN be changed to include the date of issue 'without delay.' Two days later the contractors, NCP (National Car Parks, who also incidentally hold the contract for Westminster City Council) were told to add the date of issue to the electronic version of the PCN (yet this wasn't done until 30th November 2005).
Recent cases involving London authorities have confirmed the 'Bury decision' (Moses v Barnet 2 was even appealed by Barnet after the initial 18th February 2006 decision but the Parking and Traffic Appeals Service, PATAS, reiterated the adjudicator's decision).
However, the latest and most significant development is that during the investigation in Sunderland they took leading Counsel's advice (believed to be Stephen Sauvain QC) with regard to the legality of unlawfully worded PCNs. As the result of further questions regarding the legality of Sunderland's PCNs by campaigner, Neil Herron, Sunderland City Council issued a press release 3. in which they state, "Sunderland City Council, like many other local authorities, will not pursue payment of outstanding unpaid Penalty Charge Notices (PCNs) which do not display a date of issue."
This declared 'amnesty' therefore has serious legal implications for EVERY other DPE local authority that issues, or has issued Penalty Charge Notices which have had no date of issue.
It appears as though Transport for London Penalty Charge Notices along with those of the City of Westminster fall into the same category as Sunderland.
This means that they do not conform to Section 66(3) of the 1991 Road Traffic Act 4., as they only have the 'date of contravention' and not 'date of notice' or 'date of issue', and it is only a matter of time before an adjudicator confirms this It appears as though Lambeth Council is the only authority so far to have altered its PCNs.
Other London Authorities that have PCNs with no 'Date of Issue' along with Barnet, Tower Hamlets and Lambeth (all of which have been successfully appealed before the Parking and Traffic Appeals Service) along with Transport for London, City of Westminster and Camden whom have appeals pending.
The People's No Campaign Director Neil Herron states, "we have been campaigning against Decriminalised Parking Enforcement locally and nationally for some time now as it is clear that the level of lawlessness has escalated out of control with many local authorities taking shortcuts and showing scant regard for the law in their desperate attempt to maximise revenue from what has now become no more than a stealth tax on the motorist.
As a campaign, we got involved in the first instance to highlight the conflict that the 1991 Road Traffic Act with regard to our constitutional rights after the legal precedent set in the 'Metric Martyrs Judgment.'
Closer examination of the technical aspects of Decriminalised Parking Enforcement however, has revealed lawlessness on such a scale that Parliament must now intervene. Decriminalised Parking Enforcement is in such a shambolic state nationally that its life expectancy must now be measured in a matter of months. It is quite clear that the Department for Transport is acutely aware that there are so many problems that DPE is unlikely to survive a serious legal challenge.
As for the amnesty set in Sunderland, the same precedent must be applied to all other local authorities in a similar position. To pursue anyone in light of the decisions already in the public domain would be seen as vexatious and a misuse of public money.
However, the bigger dilemma arises from PCNs whose wording has been declared 'unlawful' but which have already been paid ... once a court sets a precedent and orders such a PCN to be paid then we are talking about hundreds of millions that will have to be refunded with many local authorities facing massive bills to refund motorists hit with unlawful fines.
Questions regarding the competence and independence of both NPAS and PATAS (both of whom are solely funded from PCN revenue) will be addressed in the coming weeks. Bear in mind these two bodies have deliberated on thousands of appeals and failed to notice that the primary piece of evidence, the Penalty Charge Notice, failed to conform to statutory requirements."
Contact:
Neil Herron,
Campaign Director The People's No Campaign / Metric Martyrs Campaign
12 Frederick Street
Sunderland
SR1 1NA
Tel. 0191 565 7143 Fax. 0191 514 4606 Mob. 07776 202045
e-mail: mail@thepeoplesnocampaign.co.uk
www.thepeoplesnocampaign.co.uk and www.neilherron.blogspot.com
The cases:
1. MacArthur v Bury (NPAS Circular 04/05) Case Number BC188 NPAS state, "The Bury PCN does not have a date.
Although the date of the contravention is stated, the date of the notice appears only on the tear-off payment slip. Thus, it differs not only from the statute but also from the DoT model, which says 'Date of Issue' at the top. The Adjudicator decided that to comply with Section 66(3) (c) a PCN must have a date.
The date of the contravention is not the date of issue even if, in most cases, the PCN will be issued on the same day as the contravention. A real possibility of prejudice arises from potential uncertainty as to when the 28 day and 14 day periods for payment begin and end.
This finding will be of particular interest to those of you whose standard PCNs state the date of contravention on the face of the PCN but specify the date of notice itself only on the tear-off payment slip."
2. Moses v Barnet 18th February 2006 Barrie Segal of AppealNow.com who handled the most recent case of Moses v Barnet says (of Barnet's appeal against the Moses decision)
"The rejection document is one of the most important documents to be published in the history of parking." Yet Barnet in their appeal submission to the adjudicator astonishingly state that if they lost their appeal it would make many parking tickets issued by Barnet council and other London Authorities unenforceable. The Parking Adjudicator dismissed this argument [sic] by stating "Surely good administration commences with compliance with the Law?"
He finally says "It is up to Local Authorities to ensure that PCNs are drafted in compliance with statute. These appeals show only too clearly that the findings of the adjudicators over several years have been disregarded - a most unattractive basis for asserting good administration. I find that Mr. Thorne (the original adjudicator) was correct to find as he did that the PCNs in these appeals were not compliant and could not be enforced."
Barry Segal's other cases on the same point were Freidman v Tower Hamlets and Gerald Poole v Lambeth
3. Sunderland City Council Press Release in Full ST117 Penalty Charge Notices
FOLLOWING a case involving Bury Council, Sunderland City Council, like many other local authorities, will not pursue payment of outstanding unpaid Penalty Charge Notices (PCNs) which do not display a date of issue.
All PCNs carry the date of the contravention, which in almost every case is the same as the issue date. The City Council has corrected this technicality and all PCNs now bear the date of issue as well as the date of the contravention.
The City Council's legal advice confirms that all PCNs which have been issued without an issue date, but were not appealed against and paid at the time, remain valid and therefore no refunds will be made in these circumstances. A small number (46) of PCNs for which payment had been made after legal advice was received on November 25th 2005, are being
reimbursed.
Any payments outstanding for PCNs which bear the March-06 Page 7 date of issue as well as the date of the contravention, will continue to be pursued.
07/03/2006 Issued by: Rose Peacock, Tel: 0191-553 1136 Fax: 0191 553 1138
Email: rose.peacock@sunderland.gov.uk
4. The Legislation The legislation is Section 66 (3) Road Traffic Act 1991 which states:
(3) A penalty charge notice must state:
(a) the grounds on which the parking attendant believes that a penalty charge is payable with respect to the vehicle;
(b) the amount of the penalty charge which is payable;
(c) that the penalty charge must be paid before the end of the period of 28 days beginning with the date of the notice;
(d) that if the penalty charge is paid before the end of the period of 14 days beginning with the date of the notice, the amount of the penalty charge will be reduced by the specified proportion;
(e) that, if the penalty charge is not paid before the end of the 28 day period, a notice to owner may be served by the London authority on the person appearing to them to be the owner of the vehicle;
(f) the address to which payment of the penalty charge must be sent.
Questions Arising
1. Do the adjudicators expect every motorist in Local Authority areas highlighted to appeal on the already decided 'date of issue' point and clog up the adjudication process? The appeal rate is currently less than 1%. If every motorist knew that the wording on the PCN was unlawful then it could be expected that the number of appeals would go off the scale.
2. If a local authority such as those highlighted above (or any other in a similar situation) decides to appeal then this can be seen as frivolous or vexatious and an abuse of process and waste of public money, especially in light of the clear indications given by both PATAS and NPAS. Will the adjudicator award costs against the authority in such circumstances?
3. If the PCN is the most fundamental and primary piece of evidence, why is it that both NPAS and PATAS adjudicators have only just picked up on this case?
4. What is the position of the Secretary of State in light of the evidence in this press release?
5. What does the Secretary of State intend to do regarding this matter, as it has the potential, following a successful legal challenge and refund in the instances of 'unlawful' PCNs which have been paid, rather than those still outstanding, to bankrupt one or more local authorities?
6. Is it possible that the Legislative and Regulatory Reform Bill currently going through Parliament would give Ministers the powers to prevent retrospective repayments of unlawfully levied fines and Penalty Charges?
7. What legal consequences will arise for local authorities from bailiffs who have purchased unrecovered debts from decriminalised parking authorities? They have been sold an asset that is illegal in law and therefore worthless. If they try to apply their right to "walking possession and attendance with a van to remove" the personal effects of an 'illegal' parker they would be breaking the law. Compensation would therefore be due to the victim.
8. What are the Audit implications for local authorities deriving 'unlawful' income from unlawfully worded Penalty Charge Notices?
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