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fitzy89
Hello all, I'm looking for some advice for a parking ticket before I start the appeal process. I was directed to this forum by the guys at Money Saving Expert for some advice.

I'll start by explaining my current situation. Before Christmas, me, my partner and then 18 month old son were declared homeless after our landlord had to sell the house we were in, we couldn't afford to private rent and there were no properties in a suitable location that were affordable. After a couple of weeks sleeping on friends sofas we were offered a flat by the council (a private rent but much cheaper than normal rates) so we snapped it up straight away and moved in 3 days before Christmas. We didn't realise until then that there was no parking space included which is quite a problem. There's no permits available for the car parks nearby.

So until now I've been parking in the free laybys near our flat which have time restrictions and I'm constantly moving the car every hour to the next one, a right pain and inconvenience. However, for the last 3 weeks I have put a notice in my windscreen detailing our situation and asking if they could ring our doorbell (a stones throw from where I am parked!) before leaving a ticket. This has worked, I have also spoken to one of the parking guys who was very nice and understanding about it and said he wouldn't give us a ticket himself, he had let me off several things in the past so have no reason to doubt him, was very kind of him and I appreciate it. But there are 3 parking guys who patrol the area on different days, one is very nice, one is tolerable, and the other is a complete **** for lack of a better word.

Now on to the ticket. I guess I overstayed my welcome on a day when the bad guy was working and went out to find the yellow sticker of doom on my windscreen. I'll admit fault at this one, I had stayed longer than I should have but I believe their evidence used for this may be incorrect so I am hoping to challenge this, anyone in their right mind should do and hopefully you all won't think badly of me for trying.. The ticket shows the times 10:41 and 14:37 under the contravention details. The layby where I was parked has a 1 hour stay with no return within an hour. So if they are using these two times, how do they know I didn't go out for an hour in between (which I am hoping to use as my reason)? So assuming I arrived at 10.41, an hour takes us to 11.41, then if I left for an hour and came back that would take us to 12.41. Are they assuming I was there for the whole period without having evidence to back it up? There is no CCTV or ANPR cameras in the area and patrols are done on foot and this is also very infrequent, often days will go past between patrols (I monitor it with a CCTV camera out my window).

Picture of the ticket:


While we are very careful with money as me and my partner are both on a low income (and my partner being made redundant in a couple of months, ironically from the same council who issued the ticket) it wouldn't cause significant issues if I did pay it, but I would rather not if there is any option to wriggle out of it. I have spoken to a friend who works for a private parking company who although doesn't know all the facts about council tickets, thinks I am within my rights to challenge it and stand a good chance of winning an appeal. Any advice would be very much appreciated.
DancingDad
Have you got a picture of the restriction pls.
I assume something like 1 hour max, no return in one hour ?

Normally, a CEO on foot would observe vehicles in these sort of bays and record brief details that can be used if the car is still there on their next round.
Classic is valve positions on two wheels. Possibly photos in these times but CEO notes are still the prime evidence.

If you did move the car and returned after any restriction on return, challenge and explain what you did. IF CEO failed to take evidence and simply based the PCN on seeing the car earlier, should win though likely to have to go to adjudication.
If you want to take a gamble and hope that the CEO failed to detail evidence and that an adjudicator will believe you, your choice, we cannot advise telling porkies.

Post up the back of the PCN and any pictures of the parking spot and let's see if we can find something better for you.
Mad Mick V
Duplicity ---I'll dig out the reference.

Mick

Here you go --- the "at and and" is an issue if it suggests two "counts" on the PCN. IMO the times noted are too far apart to be ignored and the PCN is bad for duplicity:-


Elaine Patricia Lavall
-v-
London Borough of Hammersmith and Fulham

Case No: 2040135996 PCN: HF91175210


1. This is an application for review by the local authority. Mr Spurling represented the local authority at the hearing. The Appellant did not attend or submit any representations on the application.

2. The local authority challenged the Adjudicator’s decision that the Penalty Charge Notice was bad for duplicity. It said that the decision had wide implications for the validity of large numbers of its Penalty Charge Notices and therefore that the interests of justice required a review. It very properly indicated that since it was the general principle with which it was concerned, it would not pursue enforcement of the penalty even if it were successful. I accepted that for the reasons put forward by the local authority a review was desirable and accordingly conducted a review.

The Adjudicator’s Jurisdiction

3. At the hearing, Mr Spurling first raised a new preliminary point with which I must first deal as it raises an important point about the jurisdiction of a Parking Adjudicator. He argued that the Adjudicator in any event had no power to consider the validity of the Penalty Charge Notice as a challenge to the validity of the Penalty Charge Notice did not fall within any of the grounds on which representations can be made by the recipient of a Notice to Owner specified in paragraph 2(4) of Schedule 6 to the Road Traffic Act 1991. He said that a challenge to the validity of the Penalty Charge Notice could only be made by judicial review proceedings in the High Court.

4. In considering this submission, it is necessary to remember that prior to the implementation of the decriminalised scheme of enforcement under the 1991 Act, parking contraventions were a criminal offence dealt with in the Magistrates’ Courts. Indeed, that remains the case in many parts of England and Wales where decriminalisation has not been introduced. In the decriminalised system, the Parking Adjudicators have essentially the same function to perform as the Magistrates’ Courts in the criminal system.

5. There is no doubt that in a criminal case the defendant would be entitled to raise the validity of the summons in his defence; there would be no question of his having to bring judicial review proceedings to do so. It is clear that a defendant in criminal proceedings may raise public law issues in his defence and is not obliged to resort to judicial review: Boddington v British Transport Police [1998] 2 All ER 203. As Lord Slynn of Hadley said in that case:

For magistrates to be required to convict when they are satisfied that an administrative act is unlawful is unacceptable. It is not a realistic or satisfactory riposte that defendants can always go by way of a judicial review.

6. In the decriminalised regime, the Penalty Charge Notice is the equivalent of the summons. It would be an absurdity if in the decriminalised regime the judicial body charged with deciding appeals against liability did not have the power to decide on the validity of the Penalty Charge Notice, thus putting motorists in a different and less favourable position so far as liability is concerned before the Parking Adjudicator compared with a defendant in the Magistrates’ Court.

7. Again, it is no answer to say that the motorist could seek judicial review on the point. This would still mean the parking adjudicator did not have full power to determine all matters relevant to that liability. It would place obstacles in the way of the motorist obtaining a determination of their rights and put them to additional and disproportionate trouble and expense. It would in all probability be a breach of article 6 of the ECHR, particularly where appellants before the parking adjudicators would be in a less favourable position than defendants in the criminal courts.

8. As to the argument that the circumstances do not fall within one of the statutory grounds for contesting liability in paragraph 2(4) of Schedule 6 to the 1991 Act, they seem to me to fall within ground (f): that the penalty charge exceeded the amount applicable in the circumstances of the case. If the PCN was not valid, the penalty payable would be nil and therefore would exceed the penalty claimed by the local authority. In any event, in R v Parking Adjudicator Ex p. Bexley [1998] RTR 128, the Court expressly rejected the argument that challenges on collateral matters of law could only be brought by way of judicial review and held that parking adjudicators have the power to consider issues of collateral challenge. The arguments put forward in this case have in truth already been considered by the Court in Bexley and rejected. I would also note Wandsworth LBC v Winder [1985] 1 AC 461 in which the House of Lords held that a defendant in civil proceedings brought by a public authority could raise a public law issue in his defence.

9. It might be argued that as it is the Appellant who initiates the proceedings before the adjudicator, he is raising the issue as a claimant and not in his defence; and therefore that the Boddington and Winder principle does not apply. However, enforcement is initiated by the local authority in serving the Penalty Charge Notice and the appeal to the adjudicator is the last stage in the procedure prescribed for the motorist to contest liability. Therefore, in reality the appellant is raising the issue as a defence to the allegation in the Penalty Charge Notice.

10. The local authority relied upon the judgment in Westminster v the Parking Adjudicator [2002] EWHC 1007. However, the issue in that case was quite different from that in the present case. In Westminster, the issue was whether the adjudicator, having decided a contravention had occurred, was entitled to consider mitigating factors and reduce the penalty when assessing an appeal on the ground that “the penalty charge exceeded the amount applicable in the circumstances of the case”. The court held that, on the proper construction of those words, the adjudicator could not consider mitigating factors or reduce the penalty, which is fixed by the substantive law. It is the case that the criminal and decriminalised regimes are different in that the penalty is fixed in the latter but not in the former. Therefore the amount of the penalty is within the jurisdiction of the magistrates but not the adjudicators. That is what the Westminster case was about. However, there is no difference between the two regimes in terms of the required elements for there to be a contravention. It is my view inconceivable that Parliament intended that in finding whether a contravention had occurred the Parking Adjudicators should not be entitled to look at all relevant matters, as the magistrates could.

11. I therefore find that I do have the power to consider the validity of the Penalty Charge Notice and whether it is bad for duplicity.

12. I would add that on the face of it this is an attempt by a public body having the power to impose penalties on the public to fetter the ability of the public to protect itself against unlawful use of those powers and to limit the extent of judicial control of them. This seems to me to be a highly unattractive position for it to adopt.

The Duplicity Issue

13. I turn now to the duplicity issue. Under section 66 (3) of the Road Traffic Act 1991, a Penalty Charge Notice must state “the grounds on which the parking attendant believes that a penalty charge is payable with respect to the vehicle”. It seems to me to be unarguable that it must do so in a way that is not bad for duplicity. Indeed, the local authority accepted this. Its argument was that this Penalty Charge Notice was not bad for duplicity.

14. The rule means that a Penalty Charge Notice must not allege more than one contravention. This is judged by reference to the wording of the Penalty Charge Notice; the evidence is irrelevant.

15. Blackstone’s Criminal Practice 2005 summarises the rule as follows.

“…a count is not to be held bad on its face for duplicity merely because its words are logically capable of being construed as alleging more than one criminal act … if the particulars of a count can sensibly be interpreted as alleging a single activity, it will not be bad for duplicity, even if a number of distinct criminal acts are implied. Thus, the rule … rests ultimately on common sense and pragmatic considerations of what is fair in all the circumstances.”

I also note that in DPP v Merriman [1973] AC 584 Lord Diplock said that the rule “has always been applied in a practical, rather than a strictly analytical, way …”

This is not a criminal matter of course, but the proper approach is the same.

16. I would first dispose of one of the local authority’s points. It said:

“A PCN is a multi-purpose document; it makes an allegation; it records evidence in support of the allegation; it notifies the recipient that a penalty is due; it specifies the penalty, the deadline by which it must be paid, and the address to which it must be sent. The description of the contravention relates to the allegation. The record of observation times [the two times recorded on the Penalty Charge Notice] relates to evidence in support of the allegation.”

This passage is accurate except in one important respect. The fundamental purpose of the Penalty Charge Notice is to inform the motorist of the breach of the parking regulations allegedly committed, what the penalty is and what to do about it. It is not the purpose of the Penalty Charge Notice to record evidence. Of course, the statement of the allegation is bound in a sense to contain evidence in support of the allegation, since the fact that it will contain details of the vehicle shows that the parking attendant was in possession of those details. But this is a by-product of the fundamental purpose of the Penalty Charge Notice to state the allegation, rather than the recording of evidence being one of the purposes of the Penalty Charge Notice. The place for recording the observations of the parking attendant is in his electronic and/or manuscript record. I hope that these remarks will assist the local authority in reconsidering what it is necessary to include in the statement of the allegation on the Penalty Charge Notice for that purpose only, divorced from the recording of evidence. This should help to avoid the sort of issue that has arisen in this case.

17. I should also mention a criticism by the local authority of the original Adjudicator. In saying that the Penalty Charge Notice would have been sound if it had stated “at … to …” or “from … to …” rather than “at … and …”, I do not consider the Adjudicator was suggesting that that form should be used if it would not reflect the facts because the parking attendant had not carried out a continuous observation. He was, I think, merely saying that if that were what the Penalty Charge Notice said, as a matter of form it would not be bad for duplicity.

18. Having got those points out of the way, I now turn to the question whether this Penalty Charge Notice is bad for duplicity.

19. As the original Adjudicator said, the inclusion of two times will not necessarily render the Penalty Charge Notice bad for duplicity; and the local authority concedes that the inclusion of two times might in some cases render the Penalty Charge Notice bad for duplicity. So in fact there is agreement on the general principle. The question in this appeal, therefore, is really a narrow one confined to this case: is this Penalty Charge Notice bad for duplicity?

20. The two times recorded on the Penalty Charge Notice are only five minutes apart. The Penalty Charge Notice seems to me to be doing no more than stating as a fact that the parking attendant saw the vehicle at these two times, close together, and having done so concluded that as no pay & display ticket was clearly displayed the vehicle was unlawfully parked. Applying the test set out in paragraph 15 above, this interpretation seems to me to be entirely fair and sensible and to lead to the conclusion that it is not to be read as alleging two contraventions. Nor is there any indication that the Appellant was in any way misled or confused. I therefore do not consider that this Penalty Charge Notice is bad for duplicity.

21. Accordingly, I set aside the original decision to allow this appeal. Having done so, I must now decide the appeal on its merits.

22. The Appellant does not dispute the contravention. The parking attendant made a contemporaneous record of the incident and I find that the contravention occurred. The Appellant says, however, that she did not receive a Penalty Charge Notice. The parking attendant’s record includes details of the vehicle including its tax disc serial number, indicating that the parking attendant must have been close to the vehicle and so in position to serve the Penalty Charge Notice. The parking attendant recorded that the Penalty Charge Notice was fixed to the windscreen. I am satisfied from the evidence of the parking attendant’s record that it was. The fact that the Penalty Charge Notice may later have become detached, for example by being wrongly removed by a third party, does not affect the validity either of the Penalty Charge Notice itself or its service; nor does it affect liability for the Penalty Charge. I therefore refuse this appeal. However, as I have said, the local authority has said that it will not pursue enforcement of the penalty. There is therefore nothing for the Appellant to pay.



Martin Wood
Adjudicator appointed under Section 73(3) of the Road Traffic Act 1991

14 February 2005
RxBandit
Forget the duplicity angle. It's a code 30 - by definition the CEO must witness the veh at two separate times. The CEO cannot truthfully say the veh was seen "from A to B" as the obs wasn't continuous. The two times are fine. They don't allege more than one contravention. They are evidence of a single alleged contravention. On their own they're not enough to prove it, but as DD says, tyre valve positions are often recorded at both times. Some handhelds will even pick the appropriate contravention description (re-parked if they don't match, parked for longer than permitted if they do). Ofc we don't have a clue if the CEO did record the tyre positions.

Tbh given the OP has stated that they believe the contravention did take place I'd advise staying well away from arguments of the "I might have driven off and come back" type. Which ground exactly are we claiming here? Telling lies can get expensive, especially with tyre valve positions recorded in the CEO's handheld. Bringing up theoretical possibilities will set alarm bells ringing for the council. Why rely on what might have happened rather than what did?

Nothing wrong with requiring the council to prove its case, but be aware that this thread might be on the council's radar.
hcandersen
+1.

The OP acknowledges being stationary for several hours. Only the traffic sign will show whether on the face of it this is a contravention.

Authority's photos please or google maps if the sign is the same.

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