I had cause to go on to the POPLA site this morning ( 16/11/18) and found this on the opening page regarding PCNs issued on railway bye-law land:

"There has been a delay in POPLA considering appeals against parking tickets issued on land subject to Byelaw. This was due to relevant stakeholders clarifying with government whether Notices issued under Railway Byelaws could be heard by POPLA.

POPLA has now received confirmation from the Department for Transport that it considers issuing penalties on Byelaws land a legitimate practice. It has also confirmed that as a matter of good practice – parking operators should offer an independent appeal against such penalties.

Due to the lack of progress on government guidance the British Parking Association (BPA) took the decision to remove the requirement for parking operators to signpost motorists to POPLA for penalty charges issued under byelaws from 18 September 2017. The BPA has now instructed its operators to signpost motorists to independent appeal for all penalties issued on Byelaws land after 1 November 2018."

There are a considerable number of adjourned appeals within the POPLA system. It was thought that we would hear these appeals once we received clarification from the government. However, the parking operators in question have taken the decision to not contest these appeals. This does not mean the notices were issued incorrectly – the parking operators have made this decision due to the significant delay. All motorists with appeals adjourned for this reason will have the penalties cancelled and will receive notification in due course."

My view is still that PCNs issued on land covered by railway bye-laws are wrong, but there has been considerable discussion on that matter on here. It is well known that the DfT have issued incorrect guidance for years on this and other matters, one that springs to my mind is the s19 minibus operations which have been ruled illegal by a number of courts, but the DfT guidelines are taken as "the law". The same comments apply to government guidance. surely any "guidance" is the law and case law.

The Penalty Notice appeals in the system have probably been no-contested because the deadlines to refer the cases to the magistrates are long past
As far as I know, there is still no mechanism to enforce the actual Notices

This does at least mean that we're back to the situation where failed appeals can be "parked" at POPLA for a few weeks on the way to the six months time-out

Edit : Have just received three emails from POPLA that Indigo isn't contesting the appeals

Interesting update, thanks Roy the Bus.

Looks like the DfT and POPLA have screwed up again. See the document on the POPLA website at

Link

They say only the owner can be pursued - NO NO NO IT'S ONLY THE DRIVER!

They say "While POFA 2012 does not apply on Railway Land" - NO, IT'S ONLY SCHEDULE 4 OF POFA THAT DOES NOT APPLY - the rest of POFA does apply because the rest of POFA is not restricted to "relevant land" !!!!

I give up...

Some interesting points :

It confirms that the Penalty Notice is an offer to avoid prosecution
There's no mechanism for the parking company to recover the demand itself

It's aware of the six months limit to prosecute
Does this mean that POPLA will give priority to penalty notices so the operators can't accuse it of timing out their notices ?

What's POPLA going to do with an appeal that says that the allegation isn't a Byelaw offence ?
The obvious example is Indigo's "Failure to Display"

Dft, TOCs and PPCs will never give clear answers on this - way too much money being taken on the back of the misleading statements confusion.
Indigo makes clear on their website that they are mere agents of the TOC
https://uk.parkindigo.com/en/railway-byelaws-terms-of-use

domino.

It’s not what they say and YES YES YES it’s is what the Byelaws say, the the OWNER may (note MAY) be liable for a penalty, it doesn’t say anything about the driver being liable for the penalty, nor keeper or RK.

But that part of byelaw 14 is too vague to create actual owner liability (did Parliament really intend to make the likes of Motability and PCP lease firms liable for PPC penalties?) and, if it wasn't, it would in any case be ultra vires the enabling legislation (s 219 Transport Act 2000).

As Redivi correctly says (the advice I received from a barrister says the same thing), the byelaw does not create any enforcement mechanism, and the PPC penalties should more properly be understood as an offer (or, as many might say, ransom demand) not to prosecute the RK for the underlying byelaw 14 offence, despite typically having no evidence at all, let alone evidence to prove beyond reasonable doubt, that the RK personally committed the alleged offence. Magistrates Association guidelines makes clear that simply being RK is insufficient in itself to prove beyond reasonable doubt that the defendant was driving.

In practice, such prosecutions are vanishingly rare when the ransom demand is issued by a TOC (such as Northern) and wholly unheard of when the ransom demand is issued by a PPC, precisely because they ought not to succeed in the absence of any evidence at all, and in any case most PPCs do not have the expertise or the desire to prosecute, given that any fine would go to the State.

There was one case on this forum where a PPC pulled a 'bait and switch', insisting on signage, in paperwork and in their letter before claim that the charge was a statutory penalty, solely, and then, when the RK didn't pay, switching tack and suing in the county court for a 'contractual charge'. The unanimous advice was that the claim was certain to fail, and that the defendant would likely be awarded costs for unreasonable behaviour, but instead the judge, incredibly, upheld the claim, while additionally erring further by allowing the PPC inflated and fictitious costs as well.

Post Beavis, the PPCs likely could enforce punitive contractual charges if presented as such, subject to the hurdle of driver identification on railway land, but instead they find it more profitable to issue fake byelaw 14 penalties, and to instead use wilful misrepresentation of the nature of their invoices combined with the (invariably hollow) threat of prosecution to extort more money from their victims. This fraudulent misrepresentation means that the charges are likely unenforceable, although there is always the danger of running into a clueless judge.

Redivi

According to Indigo they say in that link that

failure to display is a by law offence ... Failure to purchase (AND DISPLAY) a ticket........

Surely they haven't amended the bylaws and added the bit in brackets by themselves? ( said with tongue very firmly in cheek )

There is no law in England making it a criminal offence to be the owner of a vehicle which has been parked in breach of byelaws by someone else. So if the owner is not the same person as the driver, the owner could never be guilty. The byelaws do indeed mention the driver, because they refer to the "person in charge" of the vehicle.

Byelaws in themselves do not give local authorities power to make new law. Only Parliament can do that. Many of the problems with railway byelaws stem from the fact that they do not accurately reflect the enabling legislation. For example there is no fixed penalty regime for station car parks included in Transport Act 2000 but byelaw 14 tries to create one nevertheless. And the DfT and POPLA assume that is the law! Another example is the use of clamping. Byelaws mention this but are now out of date because POFA 2012 made clamping illegal without specific lawful authority. Byelaws on their own cannot provide this authority.

Open letter to John Gallagher.

Dear Mr. Gallagher,

Re: guidance on appeals against tickets issued on railway land, which can be found at https://popla.co.uk/docs/default-source/def...ws.pdf?sfvrsn=0

It’s good to hear that the BPA has decided, after a gap of over a year, to require its members to offer motorists an appeal to POPLA against parking tickets issued on railway land. You have obviously gone to a great deal of trouble to work out the new guidance for dealing with Byelaws cases and I am sure I speak for motorists in general in expressing genuine thanks for the time you have given to it.

Unfortunately, however, there is a serious problem: the entire guidance is based upon a premise which is wrong in law. The DfT has led you to believe that train operating companies (TOCs) have the power to impose their own pre-conviction penalties for a criminal offence. They do not.

It is no surprise to see how badly you have been misled. In my own dealings with the DfT I have been fobbed off on a number of occasions with flagrant misdirections on the law (a couple of examples are given at the end of this letter). In this case, you have understandably relied upon the DfT’s “clarification letter” which is attached to the Guidance in Appendix 1. That letter is, frankly, a disgrace. It glosses over the issues rather than confronting them; it is wrong in law in a number of material ways; and it is so loosely worded as to invite mis-interpretation. Rant over: back to the matters in hand.

There are currently 4 methods of enforcement on railway land:-
i) Prosecution for breach of the byelaws – driver only.
ii) “Penalty notice” (type 1): in reality this is simply an offer to the driver to accept a sum of money in lieu of prosecution. Whether to accept the offer and pay, or refuse and risk prosecution, is entirely at the driver’s discretion; therefore no-one, whether owner, keeper or driver, is legally obliged (ie liable) to pay it.
iii) Parking charge notice: civil remedy for breach of contract – driver only.
iv) “Penalty notice” (type 2): an attempt to impose a pre-conviction penalty for breach of byelaws – owner only.

Plainly each method will require a different approach at appeal. You do not explain how this will be done but since the guidance refers throughout to “owner liability” I shall assume that the only method under consideration is method (iv): pre-conviction penalties.

Pre-conviction penalties – the law
It is unlawful in this country to demand payment of a pre-conviction penalty for an alleged criminal offence. Even the police cannot do it. (Note: a fixed penalty notice for speeding is not a demand; it is “a notice offering the opportunity of the discharge of any liability to conviction…” - see s52, Road Traffic Offenders Act 1988 – and as with all offers, the recipient is entitled to refuse if he so wishes.) The reason for this is unarguable: anyone accused of a criminal offence is presumed innocent until proven guilty. And an innocent person cannot lawfully be punished.

Thus for parking offences a finding of guilt can only be made by the Magistrates’ Court. Until then the driver is innocent. TOCs might have you believe they can impose a penalty on an owner even when the driver is innocent, but that is clearly absurd. Byelaw 14(4)(1) does not – cannot – say that. The position was confirmed by the DfT in a letter dated 18 February 2016. It says:
“no other person or body other than the Court is able to impose a penalty for breach of the Byelaws [including Byelaw 14 (1-3)] made under Section 219 of the Transport Act 2000 (as amended) and made operational on 7 July 2005.”
This letter can be found at https://www.whatdotheyknow.com/request/3110...e_passthrough=1

This presumption of innocence is the inalienable right of every citizen. It’s so fundamental to our society that to change it would not only take earth-moving legislation; it would also cause public uproar. It is nonsense to suggest that a mere byelaw, which is a basic level of secondary legislation and unscrutinised by Parliament, can flout centuries of established British law; or over-ride the clear provisions of the European Convention on Human Rights; or, most troubling of all, break the celebrated Golden Thread.

By keeping this unassailable law in mind it becomes clear that an appeal against a Byelaws ticket can only properly be conducted on the following basis:-
a) as long as the driver is innocent (ie pre-conviction), no-one - whether owner, keeper or driver - can be legally obliged to pay any penalty whatsoever; and
b) any attempt by a TOC to impose its own pre-conviction penalty is unlawful and must be met with summary dismissal.

Two other legal issues
For the sake of completeness, I should just draw your attention to two further legal issues. They both concern owner liability:-
a) No power was granted in the Transport Act 2000 (which is the Byelaws’ enabling legislation) for TOCs to pursue a third party, namely the owner. Thus as far as Byelaw 14(4)(1) purports to impose liability on an owner – in particular one who was not “on railway assets” at the time – it is ultra vires and of no legal effect.
b) You have decided to “import” the presumption that the registered keeper is the owner unless he proves otherwise. This is simply not the law. It is for the TOC to prove its case; the defendant is not obliged to prove anything. That is precisely why Parliament specifically granted the power to Councils to presume the keeper is the owner. To cherry-pick that provision and drag it across, without the associated regulations, is certainly tempting. It is also extremely inadvisable. It renders an assessment wrong in law ab initio – and therefore pointless. It also begs the question: what next? Why not drag Schedule 4 of POFA across as well, and transfer liability to the keeper when tickets have been issued under contract on railway (ie not relevant) land?


Of course, as a private non-statutory body POPLA’s decisions do not have to fall strictly within the established law; and as with all ADR there is room for common sense and compromise. But if you stray too far from the law and proceed along the lines set out in the Guidance, POPLA’s credibility will be severely dented and its appeals will be worthless.

As stated above, this discussion deals only with enforcement method (iv), pre-conviction penalties. I look forward to hearing how POPLA will deal with method (ii), “penalty notices” which are in reality offers to avoid prosecution which the recipient is entitled to accept or reject as he wishes. In particular I wonder what standard of proof you will require – criminal or civil?

I do hope this letter has helped to clarify the law and that you will feel able to amend your guidance accordingly.

Yours sincerely,

Dramaqueen

Addendum
Examples of mis-direction on the law by DfT
1. In 2015 I complained to DfT that Southeastern were claiming keeper liability for parking tickets issued under contract law. In a letter dated 15th January 2015 I was advised to familiarise myself with Schedule 4 of POFA, which “makes a vehicle’s registered owner liable for fines from members of the BPA if they decline to identify the driver”. Quite a few errors there.
2. Conversely, when I tried to engage in a discussion with the DfT regarding the TOCs’ ability to clamp, and what would constitute “lawful authority” under s54 POFA, I was told that POFA - and therefore the clamping ban - does not apply to station car parks.

Needless to say, on all such occasions I have given the DfT the benefit of my advice.

Agreed, doesn’t change the fact that what I said was right and what GB says was wrong though!

Only the driver can be summonsed, only the driver could be sued for a material loss (such as non payment), but the owner is the only one that could have a penalty, even though under the legistlation that’s impossible right now.

Is driver known to PPC? No.

Are PPC attempting to invoke PoFA? Yes.

Is the land subject to byelaws? Yes.

Is the land 'relevant land' under PoFA? No.


End of story.

Sequel:

Is the parking event more than 6 months ago? No.

Play postal ping pong until 6 months is up. Fini.

Before expiry of 6 months:

Has TOC issued proceedings in magistrates? Yes.

Pay!

FTFY

From where will they have obtained (a) evidence of the infringement, (b) details of the driver/owner/RK?

Evidence of the crime is easy, witness and photo would be enough. Owner and RK can’t be prosecuted so not relevant, they would be relying on a driver to out themselves.

Notwithstanding that the chances of actually being prosecuted are incredibly remote in practice (as shown by FoI statistics), I would be tempted to defend such proceedings on the grounds that the prosecution has not produced any evidence whatsoever that the defendant personally committed the alleged offence (if indeed it is an offence). Just as it is normally impossible for the prosecution to prove the identity of the driver in camera-detected motoring offences to the required standard in the absence of a confession (which is exactly why s. 172 exists), so too it is normally impossible for a TOC or PPC to prove the identity of the driver in railway parking cases beyond reasonable doubt.

It is true that rsooty (of this forum) was convicted despite a NG plea and despite the prosecution not producing any evidence whatsoever that he/ she committed the offence, but this was clearly wrong and almost certainly would have been overturned on appeal to Crown Court.

Of course, if the prosecuted RK genuinely wasn't driving, then he or she should most definitely defend rather than pay!

So it appears that e.g. Park Indigo are not providing any verification code for an independent POPLA appeal, certainly on a number of appeals that they have rejected from me. These PCNs were given out in September this year. How can one therefore get an independent appeal for cases such as these in limbo?

Midland

Email the BPA stating that, now they are requiring an appeal to POPLA be allowed, they msut require their operators to issue codes.

Is there an optimal email address to use for BPA?
Thanks

I'm wondering what the situation is with London Underground car parks. It appears TfL/LUL have contracted parking out to NCP. Certain stations were transferred from being purely owned by the London Passenger Transport Board which has over the years morphed into Transport for London; the underground as we know is operated by London underground Ltd.

Certain other stations were formerly goods yards owned and operated by the various forms of British Railways and may have been transferred to TfL/LUL and their predecessors when BR ceased operating trains on those lines.

My question then is: are such car parks covered under Railway Bye-Laws or whatever Act TfL/LUL operates under?

My understanding is that LUL does operate under its equivalent to the Railway Byelaws but NCP issues Parking Notices under contract law not Penalty Notices under byelaws

But, if the land is covered by any sort of byelaw, it's not relevant land for PoFA.

Agreed

Write to Steve Clark - helpful, set in the context of being paid his salary by the PPC network. Will do what he can.

steve.c@britishparking.co.uk

Well no, it would have to be a relevant byelaw, a byelaw for not chewing gum wouldn’t mean it not relevant land!

Land subject to statutory control is only "not relevant" with respect to Schedule 4 of POFA. This means there is no keeper liability. The rest of POFA does indeed apply to this land, including a section 54, which makes clamping illegal without lawful authority.

Sorry if it's a bit late, but the list in this FOIR might help:
https://www.whatdotheyknow.com/request/tube...outgoing-843442