Resisting1Enforcement authorities go to extreme lengths to resist refunding penalty charge payments by all means and excuses possible even when it is blindingly obvious that they have unlawfully demanded and taken penalty charges that they had no lawful right or power to take.

Almost universally it seems that when wrongful enforcement by a local authority has been established they adopt an attitude they have no responsibility to remedy their wrongful conduct.

No power to keep unlawfully acquired property

Enforcement authorities become nervous on discovering that have unlawfully issued a Penalty Charge Notice. They immediately know (but rarely admit) that, in most cases, there are other or very many other PCNs that have been also unlawfully issued in the same circumstances. With some commendable exceptions where full refunding of penalties has been made, many authorities adopt specious and otherwise evasive strategies to resist the refunding of penalties by all means and excuses possible.

It is a shameful commentary on the over-rated local democratic process that, upon discovery of unlawfully-issued PCNs, some council members, instead of dispassionately checking the facts of the situation, energetically close ranks with the errant officers responsible for the situation contrary to the proper function of a councillor representing the electorate.

Council Officers and members use several excuses to resist interference with their parking enforcement.

The “Legal Advice” excuse

When an enforcement authority discovers that many PCNs have been issued when, for a reason common to them all, they should not have been issued they will usually procure legal advice from counsel as to their situation. As NMAG readily recognises, that is perfectly sensible and probably necessary but, too frequently it is used primarily as a tool to purport that refunding is not appropriate or, ridiculously, as ‘not necessary’.

This unsatisfactory in at least two respects. The first is that these authorities will never make public the counsel’s advice on which they rely.

Legal professional privilege attaches to all advice provided by a legal practitioner to his/her client and rightly so, this being of crucial importance in situations where possible litigation might ensue. However, when large numbers of the motoring public discover that they are being denied refunds of their penalty payments when it is clear that their PCNs should not have been issued in the first place, they and NMAG have a reasonable expectation to be told the reason relied on by the enforcement authority to refuse refunds and not to be given an evasive fobbing-off excuse.

The secrecy that always attaches to seemingly-perverse refusals to refund wrongly-taken penalty charges does not accord with the necessary transparency of local government.

Following appeals to District Auditors, NMAG has seen some of the advice. What counsel has advised may not be untruthful but it often contains irrelevant and apparently very partial information, legal acrobatics being performed to attempt to justify a failure to refund.

A second unsatisfactory aspect is that enforcement authorities effectively tell campaigners and aggrieved motorists ‘we're right and we’ll only discuss the matter in court’. It is this inequality of arms as between enforcing authorities with taxpayers' money to support them, and individuals who cannot afford to fight authorities in court that NMAG intends to change by means of the Motorists’ Legal Challenge Fund.

Court actions are crucial to exposing the flimsy legal advice that councils hide behind. In one complaint to the Local Government Ombudsman service of an aggrieved motorist who was refused a refund of his unlawfully-imposed penalty charge to which he was entitled resulted in a finding of ‘no maladministration’ primarily because the council ‘had taken legal advice’. The ombudsman did not question the validity of that legal advice – because the authority had gone through the ritual of taking advice there was therefore no maladministration!

The “One Appeal Success Isn’t Binding” excuse

NMAG recognises that appeal decisions of parking tribunal adjudicators are not binding on another tribunal adjudicator who might find differently. It is only judgments of the High Court (and above) that are binding on related tribunal cases.

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However, one pillar of the law is that it cannot accommodate illogicality.

If, for example, a parking adjudicator finds in the appeal of one driver that his PCN had been issued at a part of the road where the restriction was not actually authorised by the relevant traffic order and was accordingly not enforceable that is a finding of fact which, plain for all to see, affects identically every motorist who was penalised unlawfully at the subject location.

It is appalling routine conduct of some enforcement authorities who, to resist penalty refunding absurdly argue that the situation that was adjudicated affects only that one motorist who successfully appealed his penalty charge.

Parking appeals all turn on the facts in the individual appeal and the great majority of successful parking appeals are won on some issue specific to the individual driver. However, where an adjudicator has shown in a parking or traffic appeal that the restriction allegedly contravened by a driver was not in fact contravened because of some authority error rendering the purported restriction or the enforcement documentation to have been unenforceable, then enforcement should not have commenced in the first place and there was no lawful basis for any of the PCNs issued in the same circumstances.

Apparent enforcement authority acceptance of liability

In most instances where a there has been a successful appeal to a parking adjudicator (or even the court) in which it was established that the alleged contravention itself was not enforceable the local authority, or police speed enforcement organisation, will cease enforcement (as should happen in every case).

When enforcement authorities do cease enforcement in recognition of such developments they need to provide an extremely convincing reason for failure to refund penalty payments to the others who were penalised in the same circumstances and should not have been.

Unfinished authority correspondence

When an enforcement authority has ceased enforcement by reason of a tribunal appeal decision or because of a discovery of unenforceability either of its own volition or by others there is an immediate and important situation of unfinished correspondence.

In respect of every motorist who has paid a wrongly-demanded penalty charge in connection with the unenforceable restriction the authority had written to them in the first instance to the effect that: “We believe that you contravened an authorised restriction which we believe to be in force. You owe us the sum of £x”. That is what a PCN amounts to.

On discovery of their fatal error the authority has come to know that this (reasonable) assumption and assertion on their PCN was wrong. In pursuance of honest and open administration it cannot be right for any enforcement authority not to correct their error by writing again to every motorist whom they had wrongly penalised to the effect that: “On (date) we claimed a payment of £x due to us because we then believed you had contravened an authorised restriction which we then believed to have been in force. We now discover that we were mistaken and find that you did not owe us the penalty charge as we claimed”(then followed with details of obtaining their penalty refund).

Apart from other serious considerations, it can only be maladministration for an authority in this situation having (albeit unwittingly) lied to a driver and then taken his money, wilfully not to advise their victim penalty payer the error of their penalty charge notice.

Closing the case

When anyone asks for a return of their penalty payment on discovering that it was not taken in accordance with the law (usually after someone else has won a tribunal appeal in identical circumstances of authority error) the authority often argues that payment of the penalty charge ‘closed the case’, this being to assert falsely that it has become too late for refunding of the penalty payment. At least one authority states on its PCNs that payment ‘closes the case’.

It is correct that payment of the penalty charge does close the case but that is only (in most cases) in respect of the civil enforcement procedures provided by the Traffic Management Act. What the motorist is correctly being told is that there is no provision in the Act for refunding or for any other consequences of an authority’s unlawful failure of to comply with the provisions of the Act and its secondary Regulations.

Criminality of not refunding

If an enforcement authority has money acquired from penalty charges or speeding fines which it, for any reason, should not have claimed, these monies will have been taken by wrongful persuasion of those who paid them. It follows that, notwithstanding arguments to the contrary that may be made by officers of the authority, and with or without the benefit of legal advice they may have obtained, the penalty money in their possession does not belong to them. If they had prior knowledge of the deficiencies then it has arguably been unlawfully acquired.

Enforcement authorities must operate in strict compliance with all statutory provisions and codes of practice when spending monies lawfully in their ownership but they have no powers whatsoever in respect of monies that have temporarily come into their possession by benign error (or by wilfully unlawful means). All such money must be removed from the authority’s possession as it is not their lawful property.

The restoration of all unlawfully-derived income acquired from motorists is a straightforward matter because identifying the registered keeper of every vehicle is (in most cases) a straightforward semi-automatic process. Where PCNs and speeding tickets are issued as a result of CCTV or speed camera observation the name and address of every penalty payer (as at the time of payment) is already known and recorded by the authority.

If an authority wilfully takes no action to enable every penalty payer to recover the payments they were wrongly persuaded to pay, the authority knowingly embarks on criminal activity because the avoidable retention of penalty monies that do not belong to the authority is clearly caught by theTheft Act (1968). Retention and usage of money by an authority that has not lawfully acquired it renders the authority open to prosecution either by normal procedure or by means of a private prosecution.

The London Motorists’ Action Group so informed the London Borough of Richmond when that council announced its intention to keep and spend the majority of the penalty payments received from unlawful mobile CCTV operation following their intended ineffectual refunding by means of press advertisement.

The Council protested that they were being accused of illegal activity but that was not so. They were merely advised that if they persisted in their determined ineffectual refund advertisement intention which they knew would result in the great majority of motorists entitled to their refunds being unable to receive them, the Council would automatically render itself liable to action for acting contrary to the Theft Act and potentially section 2 of the Fraud Act 2006. Much to the credit of this Council (as NMAG reports it then abandoned the ill-conceived intention to advertise the refunding opportunity in the local press with its inevitable follow-on criminal consequences and properly ensured that every penalty payer was contacted and informed of their entitlement to a refund.

Theft

resisting 3In the simplest terms theft is defined by the Act as dishonestly appropriating property belonging to another with the intention of permanently depriving the other of it.

Theft doesn’t require deliberate wrongful taking of property (although that exacerbates criminality); it is sufficient that there is unlawful retention of property belonging to another.

Dishonesty does not arise if there is a belief (a justifiable belief) that there exists a right to deprive the owners of their property but there is no right in law for a public authority to appropriate monies that have been acquired wrongly by some failure of the authority to have complied with all of the statutory requirements imposed on it.

In circumstances where authorities are aware of deficiencies in their orders, it is illuminating to consider section 21 of the Theft Act which deals with blackmail. It is described thus:

  • (1) A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief—
  • (a) that he has reasonable grounds for making the demand; and
  • (b) that the use of the menaces is a proper means of reinforcing the demand.

NMAG believes that a PCN or other penalty issued where the issuing authority is aware that their right to issue is fatally flawed, comes squarely under this criminal definition. NMAG will consider commencing private criminal prosecutions in cases such as these.

Perverse conduct of authorities in refunding situations

Where an authority refuses to refund all or any of the paid penalty charges after unlawful enforcement has ceased, dishonesty is easily demonstrated.

Whenever unlawful enforcement has ceased there will be some recipients of PCNs about to make the demanded payments but the authority will not take their offered payments (knowing of the immediate criminality if they were to do so). The authority inescapably accepts that there can be no liability to pay the penalty charge on the part of those about to make payment having not already done so.

For the authority to purport that those who made payments immediately before cessation of enforcement (or at any time earlier) had by contrast been liable to make their payment whereas those about to make payment were not is clearly both ridiculous and dishonest thereby engaging the Theft Act in respect of all paid penalties that the authority intends to appropriate by not refunding them.

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