We have just been forwarded a circular sent (August 05) by NPAS (National Parking Adjudication Service) to all participating Local Authorities. It refers to the case of Higgins v Sefton Borough Council (case no. SF 272)
NPAS CIRCULAR 05/05
ISSUED AUGUST 2005
Higgins v Sefton Borough Council (Case NO SF 272)
This circular informs you about a recent decision on an issue which has already attracted press coverage in the national press and is potentially relevant to all DPE councils.
In this case the main ground of appeal relied upon by Mr Higgins was that the PCN issued by Sefton Borough Council and the whole of the decriminalised parking enforcement scheme brought in by the Road Traffic Act 1991 is illegal because it is in breach of the Bill of Rights Act 1689. Mr Higgins argued that the Bill of Rights Act 1689 is still in force and makes it illegal for a Penalty Charge to be imposed before the recipient has been convicted in a court of law. The particular provision relied on is that "all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void." The argument was made against a PCN issued by Sefton Borough Council, but could be raised by any appellant against any DPE council in any case as it concerns the underlying legality of decriminalised parking enforcement and PCNs.
The Adjudicator rejected this argument and dismissed the appeal. His decision is attached in full. However, we have summarised the key points made by the Adjudicator in arriving at this decision.
- The 1689 Act is relevant, but there is no conflict between it and the decriminalised parking scheme brought in by the Road Traffic Act 1991.
- The intention of the 1689 Act was to ensure a person has a right of challenge to any financial penalty imposed on him or her.
- When a PCN is issued the Road Traffic Act 1991 imposes a statutory duty on DPE councils to consider and respond to representations against the issue of a Notice to Owner which must be issued before a Penalty Charge can be enforced, and a right of appeal to an independent tribunal against the issue of the PCN if the council rejects those representations.
- The Road Traffic Act 1991 does, therefore, provide a right of challenge to the imposition of a Penalty Charge and is consistent with the 1689 Act.
- The High Court has considered the Road Traffic Act 1991, and the powers of Parking Adjudicators and did not raise any issue in relation to the 1689 Act.
We anticipate that, in light of the national press coverage about this issue being raised by other individuals in relation to other DPE councils, we will see further cases where this argument is pursued. If you are in any doubt as to how this issue may affect your council you should consult your legal department. In any event you may want to provide a copy of this circular and the Higgins decision to your legal department.