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PCN incorrect make and CEO not in correct uniform
CryptoRod
post Fri, 13 Sep 2019 - 16:39
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Hi all,

On the 28th August I was 20 metres from my car not looking at it, when I then noticed a guy loitering next to it etc. I walked up to my car and drove off. He wasn't dressed as a CEO with any of the correct markings and he didn't affix a ticket the windscreen of my car. I thought nothing of it.

On the 2nd Sept I was sent a PCN relating to that day which incorrectly stated the make of my car as a Blue Seat when in fact it is a Blue Suzuki (I think the car parked way behind mine was a Blue Seat which is why there is a picture of a Blue Seat taken randomly below by the CEO).
Based on the PCN and their evidence attached below, can I appeal this ticket, or do I need to go full nuclear on them with this type of challenge copied below from a google search?

Thanks for your help





'I wish to appeal against the penalty charge as the make of car detailed in the PCN is incorrect. It should have been a Suzuki. I hope you accept this appeal as being truthful and cancel the penalty charge. If you do not accept this appeal on the point above then I require you to give proper consideration to the following other appeal points.

Although you accuse me of this contravention you have not provided any evidence that confirms that the restriction is supported by a legally enacted traffic order. You may possess a few photos of my vehicle against the backdrop of a traffic sign but this is meaningless as evidence of a supposed contravention unless it is supported by a valid traffic order.

Therefore it is necessary for you to provide me with a full copy of the traffic order that you believe has been contravened and I require you to explain fully what article or articles I allegedly contravened and to direct me to the specific entry for the location concerned within the relevant schedule and to explain fully why you believe that I do not qualify for one of the given exemptions within the traffic order. It is paramount that the traffic order includes the preamble and all the articles as well as the schedules and is sealed and dated and accompanied by all maps. If the original order has been amended then it is necessary that these amendments are also provided in full. I will remind you that in the case between Terence Chase v Westminster City Council, the adjudicator emphasised that a council has a legal duty to provide all evidence at the earliest opportunity to an appellant. Failure to do so is considered by the courts to be prejudicial as it is likely to effect the appellant’s judgement on whether their case for further appeal is strong or whether they should take advantage of any discount period.

In addition, I am aware of the provision under section 76(3) of the Traffic Management Act;

(3)Civil enforcement officers—
(a) when exercising specified functions must wear such uniform as may be determined by the enforcement authority in accordance with guidelines issued by the appropriate national authority, and
(b) must not exercise any of those functions when not in uniform.

The council has provided no evidence that the CEO was wearing a uniform in compliance with section 76(3)(a) and with the guidance given in section 42 of the Secretary of State’s Statutory Guidance;

42. When exercising prescribed functions a CEO must wear a uniform. The
uniform should clearly show:
· that the wearer is engaged in parking enforcement;
· the name of the local authority/authorities of whose behalf s/he is acting;
and
· a personal identity number.

As the wearing of uniform by the CEO is mandatory when serving a regulation 9 PCN, it is reasonable to conclude that an efficient and conscientious enforcement authority will inspect and keep a record of each officer before they begin their patrol to ensure a uniform is worn and that it complies with the guidance. Since it is a mandatory requirement, the burden of proof must remain with the enforcement authority. This principle is supported in the adjudication case between Derek Jack Hayward v London Borough of Croydon. Therefore, I require unequivocal evidence that the officer who served the PCN upon my vehicle was wearing the correct uniform in the correct manner. Without any evidence to the contrary, it is not unreasonable to assert that the PCN was served by the CEO in contravention of section 76(3)(a) thus invalidating the PCN served. A parallel can be drawn here in that where an authority fails to provide evidence that a PCN was affixed to the vehicle then an adjudicator will often allow the appeal. The wearing of a uniform is given no less mandatory weight in law than the affixing of a PCN and if the council cannot provide any records to satisfy the burden of proof then there is nothing to swing the balance of probabilities in their favour. The simple fact that a PCN was served is not in itself evidence that a uniform was worn correctly at the time of service and should not be construed as such.

I also bring to your attention the important fact that PCN fails to comply with regulation 3(2)(b) contained within Statutory Instrument 2007/3482 and it is therefore my belief that the PCN is not lawful.

3(2) A penalty charge notice served under regulation 9 of the General Regulations must, in addition to the matters required to be included in it under paragraph 1 of the Schedule to the General Regulations, include the following information—
(a) that a person on whom a notice to owner is served will be entitled to make representations to the enforcement authority against the penalty charge and may appeal to an adjudicator if those representations are rejected; and
(b) that, if representations against the penalty charge are received at such address as may be specified for the purpose before a notice to owner is served—
(i) those representations will be considered;

Although the PCN does say that representations will be considered, it fails to make the recipient aware of the period of time they are lawfully entitled to in which to submit such representations. The lawful period is given by regulation 3(2)(b) and it is given as any time before the NtO is served and as such a PCN must convey this fact to the recipient. This requirement is repeated in paragraph 8.40 of the DfT published ”Operational Guidance to Local Authorities”;

“that, if representations against the penalty charge are received at such address as may be specified for the purposes before an NtO is served”:

Failure to include this specific statutory information on a PCN could prejudice the recipient and consequently such a failure should not be considered immaterial. For example, a person (where the NtO has not yet been served) may only remember about the PCN on the 30th day after its service and as the PCN only makes reference to “challenges” in sentences that refer either to a 14 day or 28 day period, that person may conclude that it is too late to make representations even though that person is lawfully entitled to make representations at any time before an NtO is served. Thus the failure of the PCN to convey the information given by regulation 3(2)(b) is, or could be, critical to the response of the driver/owner to the PCN.

Considering this fact I expect you to cancel this penalty charge forthwith. If you do not cancel then I will require you to explain fully why you think the PCN does comply with regulation 3(2)(b).

Under the provisions of the Traffic Management Act 2004 I am entitled to a submit an appeal that you have a duty to consider and to which you have a duty, should you reject my appeal, to provide me with clear and full reasons in reply to my points of appeal. This duty is set down in the Secretary of State’s Statutory Guidance and the Traffic Management Act 2004 under section 87 clearly advises that local authorities must have regard to this statutory guidance. Therefore should you fail to reply specifically to each point and provide the required evidence then I will be, due to your improper consideration, including a further charge of procedural impropriety when my defence is submitted for adjudication and in addition I will proceed with a formal complaint, regarding your maladministration, to the office of the council’s Chief Executive.

In the event of this appeal being rejected then I require the council to formally and immediately acknowledge the following request as a request for information under the Freedom of Information Act 2000. It is somewhat ironic that to assist my further appeal I have to put the council to an expense that far exceeds the worth of the penalty charge. However this request is necessary to enable a more informed appeal to be submitted by myself at the next stage.

1) Please provide all notes and photographs taken by the Civil Enforcement Officer in regard to this Penalty Charge Notice (PCN).
2) Please provide a print out of the case summary /log history and on street log history in regard to this PCN from your PCN processing system.
3) Please provide the full title of the traffic order I am alleged to have contravened in regard to this PCN.
4) Please confirm if the traffic order named above has been amended. If it has, then please confirm on how many occasions and provide the full title of each amending order and the date each one came in to force.
5) Where traffic orders are named in reply to 3 and 4 above, please provide copies of the Notice of Proposal and Notice of Making in each case and confirm in each case where and when these notices were advertised.
6) Please confirm the number of council employees or contracted staff whose duty it is to consider parking appeals.
7) Please confirm the number of staff that have attended accredited training courses on the provisions of the Traffic Management Act 2004 or any other Civil Parking Enforcement courses.
8) Where courses have been attended then please give the date of attendance and indicate how many staff attended and provide the course title and the full name and address of the training providers.
9) Please confirm whether the council obtain registered keeper details direct from the DVLA or whether the council use a third party to do so. If the council use a third party then please name the third party.
10) If a third party is used then please provide details on how this third party satisfies regulation 27 of the Road Vehicles (Registration and Licensing) Regulations 2002.
11) Please provide all maintenance records for the week prior and the week after the date of the alleged contravention for all the ticket machines located in the car park where the PCN was served.'

Thanks!
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Neil B
post Mon, 16 Sep 2019 - 14:05
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QUOTE (hcandersen @ Mon, 16 Sep 2019 - 12:52) *
We do NOT know when the CEO began to prepare the PCN.

We do know that this could not be before they believed that a contravention had occurred because this is the law.

Whether we choose to guess that the CEO had not begun to prepare the PCN even by entering a single character into the HHC, fine.

In all of that you appear to presume that the time on a PCN is that when printed.

It is far more likely, given the whole purpose of the provisions of Reg 10, to be the time the CEO first enters
details; that being when he has 'formed the belief --'.


--------------------
QUOTE (DancingDad @ Fri, 11 May 2018 - 12:30) *
Neil is good at working backwards.

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DancingDad
post Mon, 16 Sep 2019 - 14:53
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QUOTE (hcandersen @ Mon, 16 Sep 2019 - 14:36) *
???

The CEO states:
The contravention occurred at 9.25.
There is a photo timed at 9.25 which in this context would substantiate the postal PCN.
There is NO evidence that the CEO had not begun to prepare, but there is to the contrary i.e. it states as much in the PCN.
This may be challenged, but there is no evidence to this effect which is in play, only speculation.

SO I am not gung-ho because there is no evidence to this effect.


0925 CEO begins to prepare, OP returns, CEO takes another photo.
0925 OP returns, CEO is beginning to prepare but takes time out to take a photo of OP driving off but OP too quick.

But anyway, the OP has sent off their reps so we can but wait.



I am not speculating.
The General Regs stipulate that amongst other things "(d)the date and the time at which the alleged contravention occurred" must be on the PCN.
The wording is clear, not the time of the notice or the date it was posted or when the CEO finished his typing, "the time at which the alleged contravention occurred.

Yet there is a clear photo of an empty parking place, taken by the CEO, timed at 9.25.


Had the PCN time be shown at 9.24, I would accept your line of reasoning, difficult to argue that the vehicle was not still in contravention.
But as the time says 9.25 there simply was no contravention.
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