UPDATED JULY 2013

Fallacious 1

When someone who has paid a parking or traffic penalty has reason to ask for his money back, many enforcement authorities will automatically fob them off by purporting that payment of the penalty “is deemed to have been an admission of liability”.

This reprehensible response is often nonsense; made automatically without any consideration of all relevant facts it is usually a false statement made for the sole purpose of persuading the aggrieved motorist to shut up and go away. It encroaches on misconduct for any enforcement authority to mislead complaining motorists with this excuse.

It may be correctly argued that, faced with either paying a penalty charge or challenging and later appealing it, a motorist has “accepted liability” by choosing to pay the charge but that is likely to have been on his assumption that the charge was actually lawfully payable.  If the traffic order was defective or the signage was not in enforceable good order, or the PCN itself was not in lawful good order (as is too often the case) then the motorists will have been misled into believing that he was under a liability when there wasn't.

What is worse, NMAG is aware of legal advice procured by a council (at taxpayers’ expense) to find reasons (excuses) to avoid refunding penalty payments which actually argued that by paying the penalties the motorists had automatically discharged their liability to the council (regardless of the facts of the situation)! This is the sort of reprehensible thing that the long-suffering motoring public has had to put up with for too long.

The very fact of arguing grounds for a refund provides a prima facie reason to show there had probably been no liability.

Liability for what?

Liability to payment of a penalty charge or fine can exist only if a penalty demand or fine has been made on a fully lawful basis; it cannot be otherwise. If the payment of a penalty or fine is subsequently disputed, actual liability to have made the payment can be established only by the courts, not by pronouncements of council officials and members.

If there has been a serious irregularity or legal defect associated in any way with the penalty demand or fine then no contravention or legal liability to pay a penalty can possibly have occurred (and, therefore, no actual liability that a payer can sensibly have admitted to).

Many payers of parking penalties will readily admit after receiving a Penalty Charge Notice that they had indeed parked exactly as alleged: for example longer than was indicated on the sign, or had driven in a bus lane, or had parked on yellow lines. The facts of the incident may well be clear beyond doubt and agreed by everyone but that has nothing to do with guilt or liability, only assumed guilt and liability.

Any ‘admission of guilt’ or ‘admission of liability’ that may have been believed in ignorance by the motorist upon paying the demanded penalty or fine can have been believed only for having assumed that the contravention that was alleged actually occurred. If parking signage was established to have been fatally defective or the CCTV camera used to monitor the bus lane was not an Authorised Device (and thereby rendered all consequential PCNs invalid for being prohibited from issue), or the traffic order did not authorise yellow lines to be marked in the actual position on the road as they had been where the PCN was issued, then no contravention could possibly have occurred.

No motorist should ever admit to having been involved in a contravention, whatever his belief, and should not admit to any liability to pay a penalty charge even when making payment.

Likewise, if the PCN or other enforcement document is itself found to be fatally defective for non-compliance with a material statutory requirement then no liability to make payment can have arisen. The High Court decided in 2006 that: “under (the civil enforcement scheme) motorists become liable to pay financial penalties when certain specified statutory conditions are met (by the enforcement authority). If the statutory conditions are not met, then the financial liability does not arise”.

NMAG has reported at length all of these situations and more where they have occurred and caused penalty refunds for the simple reason that no liability to the payments had actually occurred on the part of the motorists who paid had paid the penalties.

In addition to that, very many motorists immediately pay penalty charges promptly at the discounted rate because they cannot afford to waste their time and money in contesting the PCN even when they are certain that it was wrongly issued. All that can possibly be established from payment of a penalty or fine is that the payer made the payment to bring an end to the immediate situation and avoid further involvement.

Some penalty payments have been made in fear, under duress, and under protest. The notion of ‘admission of liability’ in the context of paying parking penalties and fixed speeding fines is a meaningless nonsense too frequently purported mischievously by enforcement authorities and their apologists.

The High Court has twice examined the status of guilt/liability upon paying a fixed penalty, first in July 2009 in R v Gore and Maher and again in August 2010 in R v Hamer.

The fixed penalty notices in question were issued by the police in relation to “penalty offences”. A police officer may, for certain categories of misbehaviour penalise the offender by the issuing of a fixed penalty notice.

The judgments of both Courts considered the meaning and consequences of a fixed penalty notice. In Maher it was said that: “Payment of the penalty involves no admission of guilt on the part of the person to whom it is given”. This was repeated in Hamer where it was added: “Fixed Penalty Notices and Penalty Notices for Disorder are in this respect quite distinct from cautions, where a person acknowledges that he has committed a crime”.

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