The Times this week reported that some car parking companies are attempting to bring back clamping.
The situation arises at station car-parks where byelaws are in force. The British Parking Association has recently told its members that they do not need to offer an independent appeals service for tickets issued at these car parks, which means that POPLA is no longer available to motorists.
This immediately sets alarm bells ringing. Indigo, one of the companies who manage railways car parks, lost 90% of their POPLA appeals in 2016.
As any parking tickets are issued under byelaws, the next available step to a motorist who wishes to dispute a ticket is to wait for the parking company to prosecute the driver at a magistrates court.
Essentially, the payment of the £100 charge to the parking company is equivalent to a bribe to stop them taking the process to court.
However, the court route opens up more problems than it solves. The first problem is that the Protection Of Freedoms Act 2012, sch 4 does not apply, and only the driver is liable to any charge. As this would be a criminal case, the burden of proof is on the prosecution and that burden is significantly higher in criminal than civil cases. We have seen that similar cases where POFA does not apply and the driver is not known are routinely thrown out of civil court, and this would therefore be even more likely in criminal court. The byelaws do also provide that the owner may be liable, but this is not necessarily the same as the registered keeper. As all the TOC knows is the name of the keeper, this leaves them with a tricky problem. For instance, with many vehicles, the actual owner is a finance company. In addition, there is the possibility that the supposed ability to fine the owner may be ultra vires, as the enabling regulation (Transport Acts) only refers to "conduct of persons while on railway property".
Chances of successful prosecution are therefore seriously diminished.
The second problem is that any case must be filed within 6 months. Unlike civil cases, where a debt can be pursued for up to 6 years, there is a much stricter time limit for bye-law cases. If the parking company dilly dallies, they will find themselves timed out.
The third and more fundamental problem, is that the penalty for breaking a byelaw is a fine, and any fines levied go to the state. The parking company gets nothing. There is therefore no financial incentive for them to take a driver (even if they can identify them) to court.
Some creative person at the parking companies has therefore decided to chance their arm and reintroduce clamping. “Clamping in operation” signs have started appearing in certain station car parks operated by Govia Thameslink Railway (GTR). The signs warn:
i) Any vehicle parked contrary to the railway byelaws may be clamped and/or removed by
the Operator or authorised person;
ii) The costs incurred by the Operator for this may be recovered from the owner of the
iii) In addition to any parking penalty, a clamp release fee of £125 will apply
GTR have stated that they will "target only persistent offenders who aren’t buying tickets and owe us large sums as a result."
The premise being that if somebody continues to dispute that a parking charge is owed, then one day they will return to the station to find their car clamped. The car will not be released until all the parking charges are paid, together with a release fee.
However, the legal basis for this appears to be extremely shaky. The Prankster has seen an extremely insightful analysis by a former barrister which identifies five reasons why clamping in these circumstances is probably unlawful.
In summary, these are;
a) Train Operating Companies do not have lawful authority to clamp/remove. Any attempt to use the Railway Byelaws 2005 to grant that authority is ultra vires, for the power to make such a byelaw was not granted – either expressly or impliedly - by Transport Act 2000.
b) The words of Byelaw 14/4/ii are not enough to constitute lawful authority within the
meaning of the Protection of Freedoms Act 2012. In order to create the lawful authority that
Parliament had in mind it would have to (a) define how, when and where clamping can take
place, and (b) incorporate the required level of regulation.
c) Even if Byelaw 14/4/ii did amount to “lawful authority” it clearly does not permit
clamping when the authorised person only has reason to believe a breach has occurred. Any
clamping carried out on the basis of a merely alleged breach (which would, in any event,
require an associated appeal process) would be illegal.
d) Even if Byelaw 14/4/ii did amount to “lawful authority”, there is no lawful authority to
charge a release fee in addition to costs. Any attempt to demand such a fee before removing
the clamp would be another form of extortion.
e) A demand that a motorist pay an unenforceable “penalty” is wholly unwarranted. To use
a clamp in order to force him to pay it would be an act of blackmail
There is a similar previous case on the record. In Mayhook v NCP, NCP confiscated Mr Mayhook's car and refused to return it. After a long legal battle they found themselves a five figure sum lighter.
The Statute of Marlborough 1267 (the relevant sections of which are still in force):
makes it a criminal offence to seize property over alleged unproven debts.
In summary, the removal of the motorists right to independent appeal and the reintroduction of clamping appeal to be ill thought out and likely to introduce more issues than it solves.
What should a motorist do if they find their vehicle is clamped on returning to the station?
POFA 2012, schedule 3, chapter 2 provides that it is a criminal offence to immobilise a vehicle without lawful authority. The above analysis strongly suggests that lawful authority is not present.
One option would therefore be to involve the police. Although they might not be sufficiently au fait with the nuances of the law, they will at least be able to take down the details of the clamper so that they can be prosecuted for criminal activity at a future point in time. The police might also be persuaded to order the removal of the clamp in order to prevent a breach of the peace, but this is not guaranteed.
Attempting removal of the clamp is another gray area. This may or may not be lawful depending on circumstances.
It might be that the most prudent manner is to pay the charge, then immediately start the legal processes needed to reclaim any amounts paid, and also to invite the commencement of criminal proceedings against the clamper.
The Parking Prankster