POPLA have now made the following announcement
POPLA has taken the decision to consider the cases previously adjourned due to Byelaws. We initially placed these appeals on hold after receiving complaints that we did not have the remit to consider if a Byelaw had been breached. After considering our position, we feel it is important to offer an appeal service to motorists so that they can have an independent assessment made. As such, we will look at the appeals we have placed on hold since September 2016. As of 5 January 2017, we had approximately 1,300 appeals on hold. If you have an appeal on hold for this issue, we would ask for your patience while we work through these. We would remind you that while an appeal is with POPLA, the parking operator is unable to pursue payment.
In a byelaw case the authorities have 6 months from the parking date to bring a claim in the magistrate court. If the claim succeeds then the monies go to the state and not to the parking company.
Any cases put on hold since September 2016 will therefore almost certainly have timed out. The Prankster wonders whether POPLA or the BPA will be compensating parking companies if they rule the appeal is not valid but the parking company is already too late to ask the authorities to file a claim in the magistrates court.
However, in a byelaws case the Protection Of Freedoms Act schedule 4 states there is no keeper liability. The parking company will therefore have to prove who the driver is to have any chance of success.
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If its bylaws and they missed the chance to send it to the mags then no income has been lost, fine goes the HM.
ReplyDeleteThis seems a sensible decision by POPLA, in most byelaw cases the penalty payments offered in lieu of prosecution are almost certainly not legal, but motorists should still have the opportunity to kill them off without hassle. Winning a byelaw case is simple anyway, don't ID the driver, no PoFA and the PPC has no case in POPLA's eyes, unless of course part of the 'deal' is they will stop allowing that appeal point.
ReplyDeleteWere a TOC or PPC ever to pursue one of these then it would be a prosecution not a claim. If the cases retained by POPLA and have timed out (statute of limitations requiring that an information is laid within 6 months) then there is nothing to pursue.
ReplyDeleteWhat expertise has POPLA to adjudicate in the matter of a criminal allegation - bearing in mind that in such a prosecution the burden of proof is beyond a reasonable doubt.
One wonders what the formidable legal minds of Warrington make of them potatoes?
Would one be mistaken in believing that nail technician training covers such legal complexities?
DeletePatrick, some of those highly trained professionals adjudicating on these cases have drama degrees, they certainly do have the training to deal with the more complex cases.
DeleteHow about those prior to this who's cases thrown out by Wright Hassle??
ReplyDeleteAny case prior to this would already be timed out.
DeleteBreaching of bye laws is a criminal offence, how's that going to work if POPLA decides the motorist is in breach?
ReplyDeletePresumably, if the matter is criminal and not civil then their decision amounts to nothing more than a non-binding paper decision that is perhaps used on a persuasive basis only. I think Hotel Oscar said these byelaw cases must be proved beyond reasonable doubt but what is the mens rea in cases like these? Is it strict liability or something more?
DeleteLike most similar such offences they are strict liability. There is no necessity for mens rea. That is not to say that offences are slam dunk as the TOC/agent is still required to prove that the land is covered by the byelaws; that the person requisitioned/summonsed was "the person in charge"; that the required signage was in placed etc.
DeleteAs far as any POPLA adjudication is concerned in a criminal setting it wouldn't count as an opinion (given that the author is unlikely to even have a right of audience in the court of Toytown let alone a Mags Court).
The average cut 'n' paste-style adjudications we see from POPLA suggest that adjudicators have only the haziest understanding of "balance of probabilities". We should therefore be extremely wary of their ability to apply an even more rigorous burden of proof.
In any event precisely what role in the prosecution process is it that POPLA they are fulfilling? I am lost and one suspects they are too. It is difficult to overcome the sense that it is the heavy hand of Haywards Heath we see in this decision.
I can see this being another cluster. Have POPLA got the guts to rule that unless the PPC can prove that the RK was also the driver, there is no case to answer and throw out the claim. I doubt it very much.
ReplyDeleteWell that's exactly what they do do right now.....
ReplyDeleteWhere Byelaws apply, the £100 charge is an offered contract. "You pay us £100, we promise not to prosecute". There is no law anywhere that says an offered contract must be accepted. So no liability for anyone to pay this £100. Not the driver. Not the keeper. Not the owner. Nobody. Doesn't POPLA understand this? They cannot adjudicate because there is nothing to adjudicate on. They clearly have no remit to make decisions in regard to a criminal prosecution for a Byelaw breach, because this must take place in a Magistrate's Court. FFS!
ReplyDeleteFOI FOIR5531
ReplyDeletein which , the DVLA clearly (cop out) state "The scope and application of the Railway Byelaws is a matter between Train
Operating Companies and the Department for Transport. "
What a bunch of dumbos popla are. All they need do is write to the ATAs and say we dont do byelaw cases.
ReplyDeleteNo stations,ports, airports etc.
Even if there are bylaws in place. Who is stopping the parking company offering a nice parking place and making a civil contract with the driver? Fair enough the parking company can not use POFA as strict keeper liability but who is stopping them even obtaining DVLA keeper data on the probability that the keeper was the driver?
ReplyDeleteSo by the end of the day POPLA will make a grand fudge and assume all drivers are keeper and the parking company had made a civil contract with the driver @ £100 for a 10 minutes overstay. We have to remember POPLA are paid for by the parking companies.
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DeleteBut it's not just overstays, is it?
DeleteSomeone who has a monthly parking contract may well find no available spaces so has to park in a position such as a verge which may not be making life difficult for others. Plenty more reasons for the issue of a NTK as well.
So suppose someone declines the invitation to pay a charge, which seems to be a legitimate thing to do, the PPC cannot pass keeper details over to the TOC as this is forbidden in KADOE.
In any event, since this is an invitation to pay instead of going to a magistrates court a keeper is within his rights to refuse the invitation and ask for the TOC to take the matter up, and there's the other problem from that. TOC has to start all over again by applying for details of the keeper. Time out.........
The whole thing need a Supreme Court sort of decision, but not just on the narrow perspective of whether the amount is reasonable as was the case with Beavis that left all other appeal points still on the table.
Again even though that POFA does not come into play because there is a bye-law in place who is stopping the parking company making a separate contract? They do not even have to own the place. This is not an invitation to pay instead of going to the magistrates’ court. This is a contract between driver (assumed to have been the keeper) and the parking company. This would be even more so if the parking company had put some extra value into the car park (like lines ect.).
DeleteThey'd have to change their signage and NtKs to exclude any reference to 'byelaws' and 'penalties', which they currently seem to revel in dishing out to frighten the unwary. But no matter how they try to dress it up, the land on which they are operating is subject to byelaws and is 'not relevant land' in the context of PoFA. It is neither in the gift of the PPC nor the TOC to disengage the byelaws. They're pretty much stuck with them. Pity!
DeleteThere is nothing to go to the Supreme Court for. The TOC's need to make their mind up: do they give up the byelaws or at least s.14 (by getting new byelaws enacted which omit it), or do they give up the money-making machine? To continue to attempt to ride both horses is both iniquitous, deceptive and disingenuous. It shouldn't be forgotten that the civil law is about putting people back into the situation they were before they suffered an alleged wrong not penalising or punishing people (all other things being equal) and least of all enrichment. That, of course, is the truth that dare not speak its name.
Delete@helpinghand - some PPCs do enforce under contract eg NCP. The parking charge is for breach of the parking contract, no mention of the magistrates' court. They then falsely assert in their NTKs that the keeper is obliged to either pay up or disclose who was driving. Most people believe it and obey; the few people who challenge it usually succeed.
DeleteIt is even more. The ppc assumes that the keeper was the driver and will quote farly and fenton to back themselves up.
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DeleteI a nutshell we are still waiting for DVLA to make it clear.
Delete1) whether the Byelaws in relation to parking represent a statutory scheme that must be followed if enforcement takes place,
2) whether the Byelaws are merely permissive, and it is open to the train operator to chose another method of enforcement.
It's strange that after 11 years of happily accepting the TOCs can seek recovery via civil law if they want to, the DVLA suddenly got twitchy about it. I wonder what their grounds are for thinking there can't be a two-track enforcement process - ie either civil or criminal - as there is for abstraction of electricity, for example. The important thing is, the TOCs should not be allowed to jump from one track to the other.
DeleteI believe the problem stems from the TOC's not wanting anything to do with parking. It's not their core business, just an obligation of station ownership, just like on station commercial outlets.
DeleteNor are the majority enthusiastic about using the byelaws in respect of parking. After all, could you imagine the outcry if they dragged a £5000 annual season ticket holder into magistrates court, because he parked against a fence when the station car park was full, because the TOC didn't provide enough spaces for everyone.
Herein lies the problem. The PPC's saw an oportunity to make a fast buck by "offering" to take the burden of managing the car parks off the TOC's, doing their usual amount of research into the subject. Had they done so, they would have realised that in law, it is impossible for them to make any money from their usual tricks. So they have constantly tried to create new variations and interpretations to try and circumnavigate the fact that only the driver can realistically be prosecuted in railway car parks, only by the TOC, and then only via magistrates. That eliminates the cash flow stream that they thrive on.
I think the DFT told them they could not employ first contract then byelaws. They had to choose one or other. If they use contract law they can only pursue the driver. So they switched to Byelaws thinking they could pursue both driver and owner. In fact the Byelaws only say the owner is liable for the breach, and they must have been present at the time and place of the incident. DFT is refusing to admit this latter point but it is clearly stated in Transport Act 2000 that Byelaws only regulate conduct while on railway assets. As stated previously, no one at all has any legal liability for the £100 charge which is part of the (illegal) offered contract, aka the solicited bribe.
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DeleteAnother reason they switched to using Byelaws was that if they used contract law the charge would have to be genuine pre estimate of loss, because the Beavis ruling does not apply here.
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DeleteThe point is that the PPC's are not using the byelaws, because in the vast majority of cases, they have no evidence of who the driver of the vehicle was (the only person who can be liable).
DeleteInstead, they lie about the threat of using byelaws to frighten the unwitting registered keeper into paying something for which he/she has no liability whatsover.
the PPC cannot pass the keepers details to the TOC unless the TOC is a member of a recognised ATA
ReplyDeletethe land is exempt from relivent land under POFA2012