Can't pay, won't pay

The Independent, 29 March 2005
Robert Verkaik reports on a novel challenge to the whole system of fixed penalties

There has been much principled discussion recently about the threat to civil liberties from anti-terror legislation. Now Britain's motorists believe they have identified an even more insidious attack on our unwritten constitution - one allowed to go unchecked for more than 14 years.

Since the fixed-penalty notices system was "decriminalised" in 1991, the partly privatised fines-enforcement industry has grown into a multi-million-pound revenue-gathering business. Now motorists are set to challenge the premise on which this industry is built.

Neil Herron, 42, a former fishmonger and market trader, plans to contest the right of a local authority to impose fines against an unlawfully parked motorist without first giving him a fair hearing.

Mr Herron has collected a number of parking tickets in his home city of Sunderland which he is refusing to pay. He argues that the system for fine collection in this country is in breach of the 1689 Bill of Rights, which protects citizens from "fine or forfeiture before conviction".

Dozens of other motorists have joined his campaign for a right to a fair trial. One is Robin de Crittenden, a pensioner from Sandwell, Birmingham. He too is refusing to pay a parking tickets. Both men have tried to provoke their local councils into taking them to court but they have not taken the bait.

These cases have far-reaching implications for collection of fines. The legal authority on which councils rely when imposing fixed penalties is the Road Traffic Act 1991. This legislation meant that parking in a restricted place was no longer a criminal offence. It enabled a revolution in revenue collection, sparing councils the burden of prosecuting defaulters.

But Herron and de Crittenden believe the legislation breached the British constitution. And only now, they argue, has anyone been prepared to go to prison to challenge the law. If this hard-line campaigning has a familiar ring, this is because it is born out of the same kind of martyrdom that characterised the legal challenge to the abolition of metric weights and measures in the UK.

Herron is a founder-member of the metric martyrs and intends to use the same judgment that defeated this cause to support his present campaign. The men have already anticipated what they believe will be the councils' defence: that the parking appeal tribunal provides an opportunity to fairly contest the imposition of a parking ticket.

"These tribunals are not independent; they are funded by the local authority collecting the fine," argues Herron.

In the metric martyrs case Lord Justice Laws relied on the doctrine of constitutional hierarchy, which gives legal documents such as the Bill of Rights primacy over subsequent legislation, unless there is an expressed intention to overrule the established law.

In the 2002 judgment he said: "We should recognise a hierarchy of Acts of Parliament: as it were "ordinary" statutes and "constitutional" statutes. The special status of constitutional statutes follows the special status of constitutional rights. Examples are the Magna Carta, the Bill of Rights 1689... Ordinary statutes may be impliedly repealed. Constitutional statutes may not." This was an argument that helped to defeat the metric martyrs' challenge.

Says Herron: "If the Divisional Court's ruling is true, every local authority, government agency and police force that fines people through the post, or on the spot, is now acting unlawfully, since the Bill of Rights Act 1689 was specifically classified as a constitutional Act. The Road Traffic Act 1991 and others like it are, by contrast, "ordinary" Acts."