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.
Andrew Barfoot
Tribunal Manager
2 comments:
] We will not make justices, constables, sheriffs or bailiffs save of such as know the law of the kingdom and mean to observe it well.
Magna Carta
.
Ashby v White 1704.
If a 'person has a right, the law provides a remedy to enforce it. As Holt, CJ, said in Ashby v. White : "If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal."
One Matthew Ashby commenc'd and prosecuted an Action at Common-Law against William White Constable of Aylesbury, a Borough where Sir John Packington was Lord of the Manor, and the Constable of his or his Tenants making, who had refus'd to admit Ashby's Vote at the Election of Burgesses to serve in Parliament; and Ashby (by Direction of my Lord Wharton, and at his Expence) brought this Action against White for having by Contrivance fraudulently and maliciously hinder'd him to give his Vote at the Election for Burgesses for Aylesbury, where Sir John Packington stood Candidate: In this Action a Verdict was found for Ashby in the Country, but Judgment was given against him in the Court of Queen's-Bench, which was revers'd upon a Writ of Error brought in the House of Lords, where he obtain'd Judgment to recover his Damages, and afterwards had Execution upon that Judgment. The five other Inhabitants of Aylesbury, John Paty, John Oviat, John Paton, Henry Bass and Daniel Horn, followed the Example of Ash by, and brought Actions against White and other Aylesbury Constables, in order to recover their Damages.
From: 'The first parliament of Queen Anne: Second session - The case of Ashby and White - begins 1/4/1704', The History and Proceedings of the House of Commons : volume 3: 1695-1706 (1742), pp. 308-88.
Doesn't this circular suggest that the NPAS are offering advice to Councils?
From their website directly underneath the video clip it reads:
"As an independent tribunal, the National Parking Adjudication Service cannot OFFER ADVICE to appellants or COUNCILS on the merits of individual cases."
http://www.parking-appeals.gov.uk/welcomeEN.asp
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