The local press is also aware of the developing situation.
(NB. Mr. Hodkinson has pointed out that he is not Head of Legal Services)
Mr. R. Hodkinson
Head of Legal Services
The Council House
Bourne Hill
Salisbury
Wiltshire
SP1 3UZ
28th March 2006
Dear Mr. Hodkinson,
I would be grateful for answers to the following questions in relation to Salisbury District Council's Decriminalised Parking Enforcement (DPE) regime (please treat as a Freedom of Information request wherever necessary):-
1. Can you confirm the date DPE commenced in Salisbury and the total number and value of Penalty Charge Notices (PCNs) issued to date?
2. Can you confirm that before implementing DPE council officers involved in preparing the DPE application to the Department for Transport were aware of the legislative requirements of the 1991 Road Traffic Act and in particular the statutory requirements relating to the wording of the Penalty Charge Notice (Section 66(3) 1991 Road Traffic Act)?
3. Can you also confirm that the officers involved in the application, implementation and operation of DPE followed the Department for Transport Circular 1/95 Guidance on Decriminalised Parking Enforcement, and paid particular attention to the model PCN described, and sought advice from the legal department with regard to the statutory legal wording before printing was approved?
4. At what point (please indicate the date), and how, did Salisbury District Council become aware that their PCNs did not conform to the statutory requirements?
5. Can you please confirm the date the PCNs were then changed in order to include the words 'date of issue' or 'date of notice' and please provide copies of all communications between the legal department and parking services regarding this matter, including copies of the original PCN and the amended PCN, and the PCNs used with the word 'regulation' blacked out?
6. Can you confirm that, up to that point (the date the PCN was amended) , the PCNs did not contain the correct legal wording and did not conform to the requirements of Section 66(3) Road Traffic Act 1991?
7. In a telephone call to Parking Services this morning, Mrs. Domain Griffiths (my apologies if spelling not correct) advised that the wording on the PCNs had been amended and was now correct, and that the PCN that I had in front of me from December 2005, with no 'date of issue and the word 'Regulation' blacked out, was one which had been issued when Salisbury Council 'had ran out' of the correct PCNs, and 'it was the printer's fault.'
Further to this, in a call to Mr. Higgins, Head of Parking Services, he said that such PCNs had been used, and what was he expected to do, cease enforcement? ( I think that the words of the adjudicator at this point are rather apt ... “Surely good administration commences with compliance with the Law?” )
I would be grateful therefore, if you could confirm that Salisbury Council had ran out of the correctly worded PCNs and began using ones with no date of issue and the word 'regulation' blacked out with black marker, and provide copies of instructions given by the legal department to confirm that this was lawful, and confirmation that the blame lies with the printer.
8. Can you confirm that Salisbury Council received the National Parking Adjudication Service (NPAS) Circular MacArthur v Bury (NPAS 04/05) and on what date, and why was it not acted upon at that point?
9. Mr. Griffiths confirmed to me in a telephone call that Salisbury Council intends to continue pursuing PCNs it knows to be 'unlawful' as they contain no 'date of issue,' and will do so until told otherwise by NPAS. As you are no doubt well aware, NPAS does not issue legal advice. It is up to local authorities to ensure that their PCNs are compliant with the law and take their own legal advice.
For your information, and to place on the record, I have enclosed a copy (below) of Sunderland City Council's most recent press release (issued after they took leading Counsel's advice):
Sunderland City Council Press Release (extract)
ST 117For Immediate ReleasePenalty Charge NoticesFOLLOWING a case involving Bury Council, Sunderland City Council, like manyother local authorities, will not pursue payment of outstanding unpaidPenalty Charge Notices (PCNs) which do not display a date of issue.
Can you confirm, as a matter of urgency, that Salisbury Council will now suspend pursuit of PCNs which do not contain the words 'date of issue' forthwith?
If you do intend to use public money to 'vexatiously' or 'frivolously' pursue PCNs deemed 'unlawful' by both NPAS ( in MacArthur v Bury) and also by the Parking and Traffic Appeals Service (PATAS) (in Moses v Barnet) can you please place the legal justification for doing so on the record?
10. Can you please indicate the following:
(i) the number and value of PCNs issued since the inception of DPE up until the point the PCNs were amended (ie. which did not conform to Section 66(3) requirements...having no 'date of issue.')?
(ii) the number and value of PCNs which do not bear the words 'date of issue' or 'date of notice' which are outstanding or unpaid?
(iii) the number and value of PCNs issued when you 'ran out of correct ones' (ie. the ones with no 'date of issue' and the word 'regulation' blacked out with a marker) and for clarity please indicate when you began and when you ceased using such PCNs?
(iv) the number of cases referred to the National Parking Adjudication Service where the PCN has not conformed to statutory requirement, and how many have been found in favour of the Council?
11. Do you intend to inform Northampton County Court (Bulk Enforcement Centre) that PCNs have now been altered and that evidence supplied previously may not have been correct?
Mrs. Domain Griffiths claims that PCNs issued 'in good faith' before Salisbury Council knew that they were unlawful, cannot be challenged. I would be grateful for clarification from yourself that 'ignorance of the law' is now a legitimate excuse.
12. Do you intend to 'raise the matter with / bring it to the attention of' the District Auditor that Salisbury District Council's accounts may now be challenged as they potentially contain items of unlawful income?
13. Can you confirm whether Salisbury District Council will be refunding people who have paid PCNs which did not contain the correct legal wording. If not, can you please give your reason as to why not?
14. Have the Chief Executive and Leader of the Council been informed that the PCNs for the DPE regime in Salisbury were unlawfully worded and have been changed?
15. Does the Council intend to conduct their own internal investigation as to the failings of various council officers to implement and operate DPE correctly?
I look forward to your response.
I would be grateful to an immediate response, in the public interest, to point 9.
I appreciate that there is a different timescale involved for matters involving the Freedom of Information Act.
Can you please confirm receipt of this e-mail and confirm that a copy will be forwarded to both the Chief Executive, Leader of the Council and all elected members via Members' Services.
Yours sincerely,
Neil Herron (Mr)
The People's No Campaign
12 Frederick Street
Sunderland
SR1 1NA
Tel. 0191 565 7143
Mob. 07776 202045
cc. Mr. P. Higgins, Head of Parking Services
cc. David Vallis, Salisbury Journal
cc. Caroline Sheppard, National Parking Adjudication Service
Notes for Information purposes only:
The cases:
1. MacArthur v Bury (NPAS Circular 04/05)
Case Number BC188 NPAS state, "The Bury PCN does not have a date. Although the date of the contravention is stated, the date of the notice appears only on the tear-off payment slip. Thus, it differs not only from the statute but also from the DoT model, which says 'Date of Issue' at the top. The Adjudicator decided that to comply with Section 66(3) (c) a PCN must have a date. The date of the contravention is not the date of issue even if, in most cases, the PCN will be issued on the same day as the contravention. A real possibility of prejudice arises from potential uncertainty as to when the 28 day and 14 day periods for payment begin and end. This finding will be of particular interest to those of you whose standard PCNs state the date of contravention on the face of the PCN but specify the date of notice itself only on the tear-off payment slip."
2. Moses v Barnet 18th February 2006
Barrie Segal of AppealNow.com who handled the most recent case of Moses v Barnet says (of Barnet's appeal against the Moses decision) “The rejection document is one of the most important documents to be published in the history of parking.”
Yet Barnet in their appeal submission to the adjudicator astonishingly state that if they lost their appeal it would make many parking tickets issued by Barnet council and other London Authorities unenforceable. The Parking Adjudicator dismissed this argument [sic] by stating “Surely good administration commences with compliance with the Law?”
He finally says “It is up to Local Authorities to ensure that PCNs are drafted in compliance with statute.These appeals show only too clearly that the findings of the adjudicators over several years have been disregarded - a most unattractive basis for asserting good administration. I find that Mr. Thorne (the original adjudicator) was correct to find as he did that the PCNs in these appeals were not compliant and could not be enforced."
Barry Segal's other cases on the same point were Freidman v Tower Hamlets and Gerald Poole v Lambeth
3. Sunderland City Council Press Release in Full
ST 117For Immediate ReleasePenalty Charge NoticesFOLLOWING a case involving Bury Council, Sunderland City Council, like manyother local authorities, will not pursue payment of outstanding unpaidPenalty Charge Notices (PCNs) which do not display a date of issue.All PCNs carry the date of the contravention, which in almost every case isthe same as the issue date. The City Council has corrected thistechnicality and all PCNs now bear the date of issue as well as the date ofthe contravention.The City Council's legal advice confirms that all PCNs which have beenissued without an issue date, but were not appealed against and paid at thetime, remain valid and therefore no refunds will be made in thesecircumstances. A small number (46) of PCNs for which payment had been madeafter legal advice was received on November 25th 2005, are beingreimbursed.Any payments outstanding for PCNs which bear the date of issue as well asthe date of the contravention, will continue to be pursued.Ends07/03/2006Issued by:Rose Peacock,Tel: 0191-553 1136Fax: 0191 553 1138Email: rose.peacock@sunderland.gov.uk
4. The Legislation
The legislation is Section 66 (3) Road Traffic Act 1991 which states
(3) A penalty charge notice must state—
(a) the grounds on which the parking attendant believes that a penalty charge is payable with respect to the vehicle;
(b) the amount of the penalty charge which is payable;
(c) that the penalty charge must be paid before the end of the period of 28 days beginning with the date of the notice;
(d) that if the penalty charge is paid before the end of the period of 14 days beginning with the date of the notice, the amount of the penalty charge will be reduced by the specified proportion;
(e) that, if the penalty charge is not paid before the end of the 28 day period, a notice to owner may be served by the London authority on the person appearing to them to be the owner of the vehicle;
(f) the address to which payment of the penalty charge must be sent.
5. Further Notes and information for potential appellants
Misfeasance in public office is a developing tort. It has recently had a boost by a decision in the House of Lords in a BCCI case. In that case a local authority is suing the Bank of England because it failed to regulate BCCI. The essence of misfeasance is the exercise of power by a public officer in bad faith that causes loss to the claimant.
There are two types of misfeasance.
The first type requires proof that the public officer has acted with the intention of injuring the claimant.
The second form occurs when the officer acts in the knowledge that he is exceeding his powers and that his act would probably injure the claimant.
This tort was somewhat restricted until the House of Lords gave its judgment in the BCCI case.
Whilst previously, subjective bad faith had to be proved, it is now sufficient simply to have a knowledge of unlawfulness and the likely consequence.
Cases alleging maladministration can also be taken up with the Local Government Ombudsman. See Local Government Ombudsman
Cases for PCNs without a 'date of issue' can also be taken before the National Parking Adjudication Service but their independence and competence must now be called into question as they have deliberated on many cases where the primary piece of evidence, the PCN, has not even been examined or questioned by the adjudicator.
6. Salisbury District Council's Penalty Charge Notice showing no 'date of issue' and quite alarmingly the Act of Parliament upon which Salisbury District Council are reliant is correct only due to the fact that a black line has removed the word 'Regulation.'
It could be argued that may be prejudicial to the motorist who could assume that this PCN has been tampered with in some way, as it is incredible that any local authority would even consider issuing such a document with the intention of demanding money for an alleged contravention.
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