The story of a minor bus lane incursion

Mr Mustard has the pleasure to meet some of the people he helps to fight PCNs for, in this case a lady he will call Mrs Kind, who is 80 years old (indelicate to ask but sometimes it helps). Mrs Kind had been to visit a friend at Appletree Court which you can see in the photos below. For some reason, which she couldn't remember, she drifted into the bus lane (and given that there were no buses about no advantage was gained so there was no point) but the cars turning right and the people crossing the road may have influenced her choice of line.

A bus lane contravention is one of 'strict liability' 

and thus the question is whether or not you entered the bus lane and one wheel within it or even a mirror overhanging the lane is enough. There is the legal principle of 'de minimis non curat lex' to consider (the law does not concern itself with trifles) which some adjudicators would apply in this case, but others wouldn't do so, that is a question of interpretation of the law which is entirely within the gift of the particular adjudicator.

In London the motorist gets three opportunities to contest a bus lane PCN.

 

The first when the Penalty Charge Notice arrives (although this is not an opportunity required by law, the challenge is informal).

The second when the Enforcement Notice arrives.

The third when the Notice of Rejection arrives.

Mr Mustard duly challenged the PCN, he was in succinct mode.

The incursion into the bus lane was too trivial to warrant a PCN.

 

It was rejected.

 

Once the Enforcement Notice was received,the formal representations were made. You can and should, make the same challenge as before, unless there is something newly thought of to add.

The incursion into the bus lane was too trivial to warrant a PCN.

The formal Notice of Rejection contained the following reasoning:

NSL wrote that response based upon outline instructions from an employee of Barnet Council. What it didn't properly consider was the argued triviality. The rejection is based upon a circular logic, triviality is irrelevant because the contravention occurred, but in order for there to be a trivial contravention there must have been a contravention. The council is being asked to exercise its discretion and should explain why it won't duly exercise discretion, the obvious reason being they would like £130 of income.

Mr Mustard wasn't worried, he hoped to find a sympathetic adjudicator, and so he started an Appeal to an independent adjudicator at London Tribunals. He was still saving his words.

Barnet Council ploughed blindly on. They produced the Evidence Pack for the adjudicator, containing the arguments and documents of both parties. The case summary contained the following:

but the question of whether the council could prove it had considered exercising its dicretion, which was not supported by any evidence, was moot as the council made a technical blunder, they failed to file the evidence in time, a week before the hearing being specified at law.

Mr Mustard didn't bother filing the usual skeleton argument but confined himself to a preliminary point.

The cover sheet for the Evidence Pack discloses that it was sent to the Appellant on 9 June relating a 15 June hearing.

It was held in the below case, by the now Chief Adjudicator, that service filed after the 7 day deadline is inadmissible and so the same decision should be made in this case.

The in person hearing was short and basically the council's case was thrown out.

Mrs Kind lived up to her name and made a donation to the North London Hospice. That would normally be the end of it, another line in Mr Mustard's long spreadsheet of wins but he was vexed by something the council said in the formal rejection, which was:

'is not an excuse to flout'

It is only today that Mr Mustard is also vexed by the use of the word 'excuse' but he was previosuly exercised by the use of the word 'flout' which as everyone knows requires a deliberate act. Mrs Kind was probably slightly distracted on having just left her friend (and she looked to be driving safely enough in the cctv, she also parking well outside Mustard Mansions).

Mr Mustard decided therefore to have some fun (his version thereof) and to make a point. He made a Subject Access Request.

 

Please provide me with the evidence held by the council, or the agents acting on its behalf and in its name, that the minor incursion into the bus lane was intentional.

The first response was inadequate so he emailed again.

I asked one simple question.

You have kindly sent me ‘everything’ about the PCN. I now have to spend time considering many documents.

 

Do you know which one contains the answer to my question, if any of them do?

 

There was silence so Mr Mustard emailed again (persistence pays).

My follow up email of 22 July has not been responded to.

I suspect that the evidence you sent me does not contain the information I requested (which was for just one piece of information and didn't merit sending me 22 documents including photographs which clearly wouldn't have contained the answer) but it really isn't for me to go on a hunt for the response, it is for the council to explicitly supply it.

I further suspect that the information I requested doesn't exist within the council's files but whether I am correct in that supposition or not isn't relevant, you must either supply the data or tell me that it does not exist.

I look forward to hearing from you.

This time he got a proper answer.

As you have pointed out, the word flout indicates that an individuals actions are intentional and while CCTV footage shows the vehicle partially contained within the bus lane for a period, it is not possible to gauge whether the driver did this intentionally.  

Definitive proof of intention does not exist. It is evident that the officer concerned should have avoided using such terminology.

 

Mr Mustard has thanked the data offcier for the straightfoward response.

 

Now that just leaves the question of how the word 'flout' was chosen?

 

Was it simply a bad choice of word by an employee of NSL who isn't paid a fortune? (perhaps but probably not).

Does it hint at the way in which employees dealing with PCNs think of the public, guilty as charged? (oh yes)

Does it tell us that outsourcing leads to lower quality control? (definitely yes).

Does it speak to a lack of supervision at NSL? (possibly).

Does it speak to a lack of training at NSL? (possibly).

Mr Mustard's hope is that by asking the Subject Access Request and presuming that a member of the Barnet Council management team sees all such requests, that a conversation has taken place between the management teams at NSL and Barnet Council and that no such similar letter will be sent in the future.

Just to make sure, Mr Mustard will send a copy of this blog to the councillor charged with responsibility for this area and suggest that a different way of thinking needs to go on, one that is less interested in blame or the financial outcome and which is based on fairness.

The end.