Tuesday, April 04, 2006

Now Peterborough Council in Fine Mess

Amanda Midgely
Legal Services
Strategic Resources Directorate
Town Hall
27th March 2006

Dear Amanda,

Please accept my apologies for not formally addressing you but the letter I that has been forwarded to me does not indicate whether you are Mrs. Miss or Ms. and has simply been signed off as Amanda Midgley.
It is disappointing that the Prime Minister's 'Respect Initiative' does not yet appear to have filtered down to many public servants at local authority level.

I would be grateful for answers to the following questions in relation to Peterborough 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 Peterborough?

2. Can you confirm that on 23rd February 2006 the Penalty Charge Notices were changed to include the words 'date of notice'?

3. Can you confirm that, up to that point, the PCNs did not contain the correct legal wording and did not conform to the requirements of Section 66(3) Road Traffic Act 1991 or to the Department for Transport model, as they did not contain the wording 'date of issue' or 'date of notice.'

4. Can you confirm that Peterborough Council received the National Parking Adjudication Service (NPAS) Circular MacArthur v Bury (NPAS Circular 04/05) and on what date, and why was it not acted upon at that point?

5. For your information I have copied below a press release from Sunderland City Council (after they took Counsel's advice) who issued over 75,000 unlawfully worded PCNs.

Sunderland City Council Press Release (extract)
ST 117

For Immediate Release
Penalty Charge Notices
FOLLOWING a case involving Bury Council, Sunderland City Council, like manyother local authorities, will not pursue payment of outstanding unpaid Penalty Charge Notices (PCNs) which do not display a date of issue.

Can you confirm that Peterborough Council will not be pursuing any PCNs which do not contain the words 'date of issue'? If you do intend to use public money to 'vexatiously' or 'frivolously' pursue PCNs deemed unlawful by both NPAS and also by the Parking and Traffic Appeals Service (PATAS) in the case of Moses v Barnet can you please place the legal justification for doing so on the record?

6. Can you please indicate the following:
(i) the number and value of PCNs issued since the inception of DPE up until 23rd February 2003 (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 a date of issue which are outstanding or unpaid?
(iii) the number of PCNs and value which did not bear a 'date of issue' which resulted in enforcement action by bailiffs?
(iv) the number of appeals that have gone to NPAS and whether the PCN was supplied as evidence in all cases?

7. Do you intend to inform Northampton County Court (Bulk Enforcement Centre) that PCNs have now been altered and that evidence supplied previously as being correct did not conform to statute?

8. Do you intend to raise the matter with the District Auditor that Peterborough Council's accounts may now be challenged as they contain items of unlawful income?

9. Can you confirm whether Peterborough Council will be refunding people who have paid PCNs which did not contain the correct legal wording. If not, can you please give your legal reasoning as to why not?

10. Could you please supply a copy of the instruction given by Legal Services to the relevant Directorate to facilitate the change of the wording of the PCN?

11. Have the Chief Executive and Leader of the Council been informed that the PCNs for the DPE regime in Peterborough were unlawfully worded and have been changed?

12. Finally, in relation to the Bill of Rights matter which you have given comment upon, you state, "the 1991 Act (the Road Traffic Act 1991) is a totally separate piece of legislation which has been given full effect by Parliament. If there is any inconsistency between acts, then the doctrine of 'implied amendment' would come into force. This states that where a latter act does not expressly amend the earlier one, it is deemed to do so by implication."
This statement seems to be in conflict with the legal precedent set in City of Sunderland v Thoburn ( Case Number CO/3639/2001 before the Supreme Court of Judicature, Queen's Bench Division 18th February 2002 ... for reference link to full judment here) which stated at par 63 "Ordinary statutes may be impliedly repealed. Constitutional statutes may not." after having qualified at par 62 that the Bill of Rights was one such 'constitutional statute.'
Can you confirm as to whether you have had sight of this judgment and in light of the legal precedent contained therein do you still stand by your statement above?

I look forward to your response. 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

Tel. 0191 565 7143
Mob. 07776 202045

cc. Parking Services, Peterborough Council
cc. David Old, Peterborough Evening Telegraph
cc. Members Services, Peterborough Council
cc. BBC Radio Cambridgeshire

Notes for Information:

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 117
For Immediate Release
Penalty Charge Notices
FOLLOWING 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 is the same as the issue date. The City Council has corrected this technicality and all PCNs now bear the date of issue as well as the date of the contravention.
The City Council's legal advice confirms that all PCNs which have been issued without an issue date, but were not appealed against and paid at the time, remain valid and therefore no refunds will be made in these circumstances. A small number (46) of PCNs for which payment had been made after legal advice was received on November 25th 2005, are being reimbursed.
Any payments outstanding for PCNs which bear the date of issue as well as the date of the contravention, will continue to be pursued.
Issued by:Rose Peacock,
Tel: 0191-553 1136
Fax: 0191 553 1138
Email: 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. City of Sunderland v Thoburn, 18th February 2002

62 Where does this leave the constitutional position which I have stated? Mr Shrimpton would say that Factortame (No 1) was wrongly decided; and since the point was not argued, there is scope, within the limits of our law of precedent, to depart from it and to hold that implied repeal may bite on the ECA as readily as upon any other statute. I think that would be a wrong turning. My reasons are these. In the present state of its maturity the common law has come to recognise that there exist rights which should properly be classified as constitutional or fundamental: see for example such cases as Simms [2000] 2 AC 115 per Lord Hoffmann at 131, Pierson v Secretary of State [1998] AC 539, Leech [1994] QB 198, Derbyshire County Council v Times Newspapers Ltd. [1993] AC 534, and Witham [1998] QB 575. And from this a further insight follows. We should recognise a hierarchy of Acts of Parliament: as it were "ordinary" statutes and "constitutional" statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b). The special status of constitutional statutes follows the special status of constitutional rights. Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998. The ECA clearly belongs in this family. It incorporated the whole corpus of substantive Community rights and obligations, and gave overriding domestic effect to the judicial and administrative machinery of Community law. It may be there has never been a statute having such profound effects on so many dimensions of our daily lives. The ECA is, by force of the common law, a constitutional statute.

63 Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the repeal of a constitutional Act or the abrogation of a fundamental right to be effected by statute, the court would apply this test: is it shown that the legislature’s actual – not imputed, constructive or presumed – intention was to effect the repeal or abrogation? I think the test could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible. The ordinary rule of implied repeal does not satisfy this test. Accordingly, it has no application to constitutional statutes. I should add that in my judgment general words could not be supplemented, so as to effect a repeal or significant amendment to a constitutional statute, by reference to what was said in Parliament by the minister promoting the Bill pursuant to Pepper v Hart [1993] AC 593. A constitutional statute can only be repealed, or amended in a way which significantly affects its provisions touching fundamental rights or otherwise the relation between citizen and State, by unambiguous words on the face of the later statute.

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