Response from Elaine Waugh, City Solicitor, 13th August

Mr N Herron
48 Frederick Street
Sunderland
SR1 1NF

Dear Mr Herron

Penalty Charge Notice SX06021491 issued 21.4.04

I am replying to your letter of 1 July 2004 addressed to the Chief Executive.

I confirm that responsibility for enforcing the Road Traffic (Permitted Parking Area and Special Parking Area) (City of Sunderland) Order 2002 (SI 2002 No.3266) (“the 2002 order”), which renders the provisions of S.66 of, and Schedule 6 to, the Road Traffic Act 1991 applicable to parking in Sunderland, lies with the Council of the City of Sunderland.

The Council has taken advice from Leading Counsel on the contents of your letter. It is satisfied that it may properly exercise its powers under s.66 and schedule 6 of the Road Traffic Act 1991, as rendered applicable by the 2002 order, without contravening the guarantees contained in the Bill of Rights 1689; and that its actions in issuing and enforcing PCNs are not inconsistent with the dicta of Lord Justice Laws in Thoburn v City of Sunderland [2002] 3 WLR 247 in respect of the doctrine of implied repeal as applied to “constitutional” statutes.

The clause in the Bill of Rights 1689 to which you refer protects a citizen from fines and forfeiture of his property imposed as a matter of criminal (penal) law unless these penalties have duly been imposed by a criminal court following conviction.

The issues of a PCN is not a criminal/penal matter. It is an administrative procedure under which, at that preliminary point, a person suspected of having contravened parking regulations may discharge his potential liability.

With regard to the judgment of Laws LJ in the Thoburn case, in view of the fact that the PCN is not a fine imposed under criminal law, there is no conflict with the Bill of Rights 1689 and therefore no issue as to implied repeal arises. However, even id the Council’s view is wrong, the actual test for (partial) repeal of a constitutional law statute propounded by Laws LJ in Thoburn is satisfied. The words used in the Road Traffic Act 1991 are so specific that the inference of an actual determination by the legislature to effect the result contended for (i.e. that it is permissible to issue PCNs without there being a prior conviction by a criminal court) is irresistible.

Your letter indicates, by its enclosures, that you are aware of the normal administrative procedure under Schedule 6 of the Road Traffic Act 1991. Please be advised that this procedure will be applied in respect of PCN SX06021491 as with any other PCN.

Yours Sincerely




Assistant City Solicitor

c.c Chief Executive
Head of Transport and Engineering, FAO Mr E Belshaw