22 March 2019

Police priorities

Mr Mustard appreciates the existence of the thin blue line, it is essential to the functioning of society, and so this blog post shouldn't be viewed negatively by the police, especially in Barking who just happen to have fallen onto his radar, but as a serious question about how police time is spent. We can't have laws falling into disrepute due to a known lack of enforcement but really, stopping vans so that a council officer can check if there is a 'no smoking' sign within them and then issue a £200 Fixed Penalty Notice, is not a good use of police time. Our police have more valuable things to do, in Mr Mustard's opinion.

It seems that the below review has been forgotten (or quietly reversed?) and Mr Mustard has written to the Met to enquire what is going on.

Mr Mustard can't see that it is legal (he isn't a lawyer so could be wrong) or moral or proportionate, for a police officer to stop a moving vehicle for a driving licence check, say, and then 'hand over' the driver to a council officer for a discussion about the absence of a 'No smoking' vehicle.

It is an ambiguous heading as to who stopped the vehicle but the Health Act 2006 doesn't appear to give authority to a council officer to stop traffic. If the police were present, they will almost certainly have done the stopping. Mr Mustard hasn't had a chance yet to speak to the driver, who has limited English, as he is an employee of the company who rented the vehicle from the van hire company whom Mr Mustard assists. (They emailed yesterday that they love Mr Mustard which is nice of them).

This letter over-eggs what will happen. It is not 100% the case that the van hire company 'will' be prosecuted. A legal officer has to review the papers first and decide if it is in the public interest to start a prosecution and if the paperwork is good enough to start a case.

After disputing the FPN the council have rowed back on the likelihood of prosecution (which will be defended)

Mr Mustard thinks that given the poor English of the driver that it is doubtful if he could have given a clear answer to council officers. The blindingly logical conclusion is that if a driver was so astute and up with the law on no smoking signs so that he couldn't be given a FPN if stopped on his route that he checks every van he rents his next step if a sign is missing would be to add the van hire company for one or to put up the spare which he carries for this very purpose.

The other problem for the council's evidence is that the person found in charge of the vehicle was not the same employee as had collected it. Poof, the council case has just collapsed.

What drives enforcement of this type by councils? It wouldn't be the revenue stream would it?

Feel free to comment in the box below or on twitter.

Yours frugally

Mr Mustard

10 March 2019


The occasional decision at the tribunal is fascinating. In this case 11 PCNs were dealt with at one hearing and most unusually a barrister was retained to represent the vehicle owner. Mr Mustard doesn't know how you end up with a vehicle which is not registered with a current address at DVLA but it clearly happened. The outcome may not have been what was planned. This is a long read and you can skip to the end for the result.

The enforcement authority, TfL, was represented by its officers Mr Olabre and Mr Garrett. The Appellant attended represented by Mr Waring of Counsel.

This is an appeal against a large number of Notices to Owner issued following the issue of Penalty Charge Notices issued to a Porsche Carrera on various dates between the October 2017 and May 2018. The vehicle on these occasions was observed stationary on a red route, a red line, (as it had been on many previous occasions not the subject of the present proceedings), and hence in contravention – as is not in dispute. It would appear from the fact that previously issued PCNs are not seen remaining in place on the vehicle in each case that the driver was receiving them day in and day out , but was indifferent to the penalties. Perhaps he thought he would not be the one who would have to pay or knew that the vehicle was unregistered. In the absence of payment of the PCNs the next stage in the enforcement procedure would be to issue a Notice to Owner; however when it came to do so in May 2016 TfL found itself stymied by the fact that there was no keeper of the vehicle recorded at the DVLA. Nevertheless PCNs continued to be issued, totalling approximately 130. Many enforcement authorities dealing with contraventions less serious than red route infringements would have recognised at a far earlier stage that they were dealing with a persistent offender, followed the advice of the Secretary of State’s Guidance, and removed the vehicle rather than continuing to issue PCNs with little hope of enforcement by other means No doubt the explanation is that TfL is not an enforcement authority that normally uses removal as a tool of enforcement. However the fact that the enforcement authority might have saved the driver from his persistent unlawful parking by removing the vehicle does not render the issue of the PCNs unlawful. Eventually the vehicle was removed to the pound on the 2nd May 2018. The Appellant discovered the vehicle had been removed on or about the 5th but it was not until the 19th that the Appellant discovered that TfL had removed it the delay being due to the fact that TfL does not use the TRACE arrangements. TfL were not and are not prepared to release it without payment of all outstanding penalties (including those not subject of the present proceedings) a sum now totalling apparently £19,360.32

There followed correspondence between the Appellant’s then solicitors and then the Appellant himself raising a number of issues, the two key ones being the question of liability or otherwise in the light of the hiring agreement and the lawfulness or otherwise of TfL’s demand that all outstanding PCNs be paid as a condition of release. TfL firmly maintained that it the Appellant was liable and was not prepared to release the vehicle without payment of all outstanding PCNs, a position it maintains for this Appeal.

It having become clear at that time that the Appellant was the owner of the vehicle, on the 30th April TfL issued the NTOs in the present case for those still within the 6 month time limit for doing so.

The issues that arise for determination in this case are whether the Appellant is the person liable for the penalties and, if so whether he can nevertheless succeed on the basis of some procedural impropriety in the enforcement process.

The scheme of civil enforcement of PCNs issued for parking contraventions is predicated on owner liability. Regulation 5 The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 provides:-

Person by whom a penalty charge is to be paid

5.—(1) Where a parking contravention occurs, the person by whom the penalty charge for the contravention is to be paid shall be determined in accordance with the following provisions of this regulation.

(2) In a case not falling within paragraph (3), the penalty charge shall be payable by the person who was the owner of the vehicle involved in the contravention at the material time.

(3) Where—
(a)the vehicle is a mechanically propelled vehicle which was, at the material time, hired from a vehicle-hire firm under a hiring agreement;
(b)the person hiring it had signed a statement of liability acknowledging his liability in respect of any penalty charge notice served in respect of any parking contravention involving the vehicle during the currency of the hiring agreement; and (c)in response to a notice to owner served on him, the owner of the vehicle made representations on the ground specified regulation 4(4)(d) of the Representations and Appeals Regulations and the enforcement authority accepted those representations, the penalty charge shall be payable by the person by whom the vehicle was hired and that person shall be treated as if he were the owner of the vehicle at the material time for the purposes of these Regulations.

(4) In this regulation—
(a)“hiring agreement” and “vehicle-hire firm” have the same meanings as in section 66 of the Road Traffic Offenders Act 1988(1); and
(b)“the material time” means the time when the contravention giving rise to the penalty charge is said to have occurred.

S66(8) Road Traffic Offenders Act provides that a
“hiring agreement” refers only to an agreement which contains such particulars as may be prescribed and that a “vehicle-hire firm” means any person engaged in hiring vehicles in the course of a business.

S82(2) Road Traffic Act 1991 provides that
2)For the purposes of this Part of this Act, the owner of a vehicle shall be taken to be the person by whom the vehicle is kept.
(3)In determining, for the purposes of this Part of this Act, who was the owner of a vehicle at any time, it shall be presumed that the owner was the person in whose name the vehicle was at that time registered under the Vehicles Excise and Registration Act 1994.

There is no doubt that the Appellant is, in ordinary language, the owner of the vehicle. He acquired the vehicle on the 17th July 2012, has legal title to it, it is “his” Porsche which is why he seeks to recover it from the pound. It seems to me that there are two possible routes open to him to avoid liability as owner ,either to demonstrate that he was not the “keeper” of the vehicle on the material dates ; or to show that the vehicle was in possession of another person under a “vehicle hiring agreement “ of less than 6 months. The Appellant relied mainly on the latter ground at the hearing, but the issue of keepership was raised by his former Solicitors and both should be considered.

On the acquisition of the vehicle the Appellant became its keeper and was registered as the keeper with the DVLA as the registration document shows. For some reason the vehicle subsequently ceased to be registered, either to the Appellant or to any other person. On the 26th July 2016 the DVLA confirmed that the Appellant was no longer the registered keeper as from the 23rd March 2016. I regard the Appellant’s explanation for this unusual state of affairs to the effect that some deal fell through to be vague and unsatisfactory. The Appellant ought to have ensured that the vehicle which he owned was at all times properly registered and if somebody else had become its keeper that the required procedure was gone through to notify the DVLA of the change. As the Appellant was, for better or worse, not the registered keeper of the vehicle there is no actual presumption for him to rebut that he was the keeper. However the converse does not apply and it is not the case that he must be presumed not to be the keeper merely because he was not registered as such with the DVLA. Up to the time the vehicle ceased to be registered he was certainly its keeper, and the question is whether his subsequent actions in hiring it out operated to divest him of that keepership.

In R v.The Parking Adjudicator ex p The London Borough of Wandsworth (1996) (in holding that a garage to which a vehicle had been entrusted for repair did not become its keeper) the Court of Appeal set out the test to be applied in determining whether keepership of a vehicle has been transferred

“In my judgment it is necessary, when considering whether there has been a sufficient disposition of the vehicle, to satisfy paragraph 2(4)(a)(ii) to rebut the presumption of ownership required by section 82(3) to consider whether it was the sort of disposition which would require notification within Regulation 12 of the 1971 Regulations. The whole concept of ownership for the purpose of this part of the 1991 Act is related to what is or what should be the position in the public record. One starts with what is the position because of the presumption in section 82(3). One then considers what ought to be the position at the time of the offence if there were instantaneous registration of a material disposition or acquisition. Had the Parking Adjudicator approached the matter in this way he could not, in my view, have reached the conclusion which he did.”

I do not consider the series of 3-month hiring agreement are the sort of disposition sufficient to s satisfy these criteria. This is not a case for example of a leasing agreement running into years The vehicle was in the possession of Mr Prince in three month sections, the Appellant clearly wishing to keep the vehicle and condition of the vehicle under close review I am satisfied Appellant was in law the keeper of the vehicle at the time of the contraventions.

There is no doubt that at the time of the contraventions the vehicle was on hire to a Mr Kemar Prince with a Mr Johnson shown as a permitted driver. In order to transfer liability on this basis the Appellant is required to show, first, that he is a vehicle hire firm i.e. a person engaged in hiring vehicles in the course of a business, and second that the agreement in question complies with the requirements of the Schedule to the Road Traffic (Owner Liability) Regulations 2000.

The Appellant has to prove that he hired the vehicle “in the course of business”. He is not required to prove that it is his exclusive business, or that it is a profitable business, or that it is a well-run or well documented business. However a “business” in some shape or form it must be. . It seems to me that a business may be described as some regular and organises activity carried out with a view to profit. TfL submits that the absence of items such as vehicle insurance maintenance costs etc. etc. shows that the Appellant is not carrying out a business. However the matters it refers to, perfectly reasonably, are no more than some of many indicators tending to show a business in operation. Other indicators of the carrying on of a business one might expect to see might include evidence of regular activity, accounts for the business, advertising or promotional material, headed notepaper or other printed documentation, a trading name, a separate bank account – the list is not exhaustive. The Appellant’s evidence including the documentary evidence now provided shows that the Appellant can produce some evidence of business activity although not everything that one might necessarily expect; and the issue resolves itself into a balancing exercise to take a view on whether this falls to be treated as a business or merely some sort private activity or side-line. TfL does not appear to go so far as to allege that the documentation produced by the Appellant is some sort of sham or forgery and there is nothing at all to suggest that it is anything other than entirely genuine.

Having considered the matter very carefully I am satisfied that the hiring of vehicle was a business, certainly no Hertz or Avis in scope, but a business of sorts nevertheless. It seems to me the main factors in favour of it being so are , in summary, as follows:- 1) the fact the Appellant was hiring out three vehicles 2) the substantial sums of money involved 3) the fact that the Appellant had troubled to obtain a form of agreement which was in all but one respect see below) what was required for professional hiring of motor vehicle – this is not a case of a “back of an envelope” agreement one sometimes encounters 4) that he had prepared separate accounts for the hiring operation. 5) Although there appears to be no separate bank account for the hiring operation it is clear that the proceeds (in this case the £865 per week fee) were passed through the account used by the Appellant for other parts of his business activities.

However, unfortunately for the Appellant, it seems to me that TfL is correct in its submission that the hiring agreement does not fully comply with the Schedule to the Road Traffic (Owner Liability) Regulations 2000. This provides as follows:-

SCHEDULE 2 Particulars required in a Hiring Agreement to comply with Section 66 of the Road Traffic Offenders Act 1988

A. Particulars of person signing statement of liability*
Full Name.
Date of birth.
Permanent Address.
Address at time of hiring (if different from 3 above and stay is likely to be more than two months from date of hiring).
Details of driving licence:
(a)country where issued (if not UK),
(b)serial number or driver’s number,
(c)date of expiry (which should be no later than date specified in B7 below).
* Where the statement of liability is in Part II of form H, the full name and address of the person by or on whose behalf the statement of liability was signed should be supplied together with the date on which it was signed. If the person taking possession of the vehicle is not the same as the person by or on whose behalf the statement was signed, the full name of that person should also be supplied (if known).

B. Particulars of hiring agreements
Registration mark of vehicle hired under the hiring agreement.
Make and model of vehicle hired under the hiring agreement.
Registration mark of any vehicle substituted for the above during the currency of the hiring agreement.
Make and model of any vehicle substituted for the above during the currency of the hiring agreement.
Time and date of any change of vehicle.
Time and date of commencement of original hiring period.
Expected time and date of expiry of original hiring period.
Time and date of commencement of authorised extension of hiring period.
Expected time and date of expiry of authorised extension of hiring period.
Actual time and date of return of vehicle (or when vehicle returned out of hours time and date on which vehicle-hire firm next opened for business).
† This requirement applies only to the vehicle hire firm’s copy of the hiring agreement

The front of the agreement contains all the required items save the “Expected time and date of expiry of original hiring period.” of the vehicle. On the reverse of the document is shown words which I would have no difficulty in treating as setting out the expected date of expiry; however as TfL points out no time is shown. Although perhaps in itself a small omission, it is sufficient to render the agreement ineffective to transfer liability. I agree with view of my colleagues sitting as a panel examining various aspects of the law relating to hiring agreements in the case of Camden v Europcar Ltd and other cases (2018) in holding that in order to be a “vehicle hiring agreement” the agreement had to contain each and every one of the required items and that leaving even one out was fatal. The panel followed a former decision in by the Adjudicator Mr Hickinbottom (as he then was, now Lord Justice Hickinbottom) to similar effect. The Regulations require both time and date and one without the other will not do. The relevant part of the Panel’s decision was as follows:-

On 18th June 1997 Adjudicator Mr Gary Hickinbottom (as he then was) decided a series of
appeals in Autolease Ltd and others. Whilst the decision is not binding on us it is persuasive and commands careful consideration. Mr Hickinbottom, as far as relevant, found (emphasis added);

“In his submissions, Mr MacLeod on behalf of the BVRLA conceded that a failure to include
any particular set out in Schedule 2 was fatal, with the result that any agreement lacking any one particulars or more was not a "vehicle hiring agreement" under the 1991 Act, and the vehicle hiring firm could not rely upon the avoidance provisions in the 1991 Act.

I agree with Mr MacLeod, and consider his concession properly made. I have looked again at the relevant statutory provisions, and I am confirmed in my earlier view, with one caveat to which I refer below. I note above that, in Section 66 of the 1988 Act, ""hiring agreement" refers only to an agreement which contains such particulars as may be prescribed...": and the schedule of particulars (Schedule 2 to the 1975 Regulations) is headed, "Particulars required in a hiring agreement to comply with Section 3 of the Road Traffic Act 1974". The explanatory note to the Regulations says that the list in Schedule 2 is of particulars "which must be contained in a vehicle hiring agreement in order to attract provisions of Section 3 of the [1974] Act, i.e. attract the right to avoid liability for parking penalties.

None of these alone is conclusive, but I consider that together, in context, they point towards the wording of these provisions being mandatory, with the effect that, if one or more of the prescribed particulars is absent from an agreement, the agreement cannot be a "vehicle hiring agreement" attracting the right to avoid parking penalties. In my view, they are mandatory in that sense.

I have one caveat to the mandatory nature of the particulars. Not all of the prescribed
particulars will be applicable in every case. The particulars of a substitute vehicle will only be applicable if there is indeed a substitution of vehicle during the currency of a hiring period.

The particulars of the hirer's current address will only be applicable if that is different from his permanent address. Some particulars are applicable to an individual hirer, but not a company hirer: where the statement of liability is signed on behalf of a company, then details of date of birth and driver's licence details will be inapplicable. My examples are not meant to be comprehensive, but the circumstances in which particulars will be inapplicable - and consequently, impossible to provide - will be limited. However, where particulars are entirely inapplicable (and, consequently, impossible to provide), it cannot of course be intended that they are mandated.

Therefore, if such particulars are not present in a particular case, then that is not fatal to a hire firm relying upon the provisions by which they can avoid liability.”

12. Although Mr Hickinbottom was dealing with regulations that pre dated the 2000 regulations the regulations, to all intents and purposes, were identical. S.66 (8) RTOA makes plain a “hiring agreement” refers only to an agreement which contains such particulars as may be prescribed. Schedule 2 of the 2000 regulations is entitled: “Particulars required in a Hiring Agreement to comply with Section 66 of the Road Traffic Offenders Act 1988.” Article 3 prescribes schedule 2 for the purposes of s.66 of the 1988 Act. The explanatory note to the 2000 regulations (whilst not part of the order itself is of assistance) states: “schedule 2 prescribes the particulars which must be contained in vehicle hiring agreements in order to attract the provisions of section 66 of the Act (hired vehicles).”

13. We respectfully agree with and adopt the reasoning of Mr Hickinbottom. Accordingly strict adherence is required and all applicable requirements detailed in schedule 2 must be included in a hire agreement. Plainly a company hirer cannot provide a date of birth or a driving licence number. A failure to include an applicable particular in a hire agreement
renders a hire firm unable to transfer liability and the company therefore remains liable
The only remaining question is whether some procedural impropriety has occurred. The Appellant submits that the Notices have been issued out of time, but they are all within the time limit provide for in Regulation 20 i.e. 6 months from the date of service of the PCN

Time limit for service of a notice to owner

20.—(1) A notice to owner may not be served after the expiry of the period of 6 months beginning with the relevant date.

(2) The relevant date—

(a)in a case where a notice to owner has been cancelled under regulation 23(5)(c) of these Regulations, is the date on which the district judge serves notice in accordance with regulation 23(5)(d);

(b)in case where a notice to owner has been cancelled under regulation 5 of the Representations and Appeals Regulations, is the date of such cancellation;

(c)in a case where payment of the penalty charge was made, or had purportedly been made, before the expiry of the period mentioned in paragraph (1) but the payment or purported payment had been cancelled or withdrawn, is the date on which the enforcement authority is notified that the payment or purported payment has been cancelled or withdrawn;

(d)in any other case, is the date on which the relevant penalty charge notice was served under regulation 9.

That in itself is not entirely the end of the matter (as TfL appears to consider) since s87 Traffic Management Act 2004 provides that

(1)The appropriate national authority may publish guidance to local authorities about any matter relating to their functions in connection with the civil enforcement of traffic contraventions.

(2)In exercising those functions a local authority must have regard to any such guidance
However I can see nothing to suggest that TfL has not followed the Guidance in this respect. This, so far as is relevant states (Para 9.10)
“The ultimate time limit, in exceptional circumstances, is six months from the “relevant date”. There should be a very good reason for waiting that long to serve a Notice to Owner”

In my judgement the absence of a registered keeper on whom to serve the Notice amounts to a very good reason for the delay, and I do not consider TfL to have acted in breach of the Guidance.

The other procedural aspect that has arisen is whether TfL was entitled to demand payment for all outstanding PCNs before being prepared to release the vehicle. TfL submits that it was entitled to demand all the outstanding penalties as a precondition of release but submitted that in any event this was not within my remit to consider in the present proceedings - which are appeals against the Notices to Owner under part 2 of the The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, not appeals under part 4 against the removal of the vehicle.

Right of owner to recover vehicle or proceeds of sale

(1)If before a vehicle is disposed of by an authority under section 101 above it is claimed by a person who—
(a)satisfies the authority that he is its owner, and
(b)pays the relevant charges,
the authority shall permit him to remove the vehicle from their custody within such period as they may specify or, in the case of an authority other than a local authority, as may be prescribed.

(2)If before the end of the period of one year beginning with the date on which a vehicle is sold by an authority under section 101 above a person satisfies the authority that at the time of the sale he was the owner of the vehicle, the authority shall pay him any sum by which the proceeds of sale exceed the amount of the relevant charges.

(3)In the case of a vehicle found in an area that is a civil enforcement area for parking contraventions, the relevant charges are—
(a)any penalty charge payable in respect of the parking of the vehicle in the place from which it was removed,
(b)such unpaid earlier penalty charges relating to the vehicle as may be prescribed, and
(c)such sums in respect of the removal and storage of the vehicle—
(i)as the authority may require in accordance with Schedule 9 of the Traffic Management Act 2004, or
(ii)in the case of an authority other than a local authority, as may be prescribed.

(4)In any other case the relevant charges are such sums in respect of the removal and storage of the vehicle as may be prescribed.

(5)If in the case of any vehicle it appears to the authority in question that more than one person is or was its owner at the relevant time, such one of them as the authority think fit shall be treated as its owner for the purposes of this section.

(6)In this section—
“civil enforcement area for parking contraventions” and “penalty charge” have the same meaning as in Part 6 of the Traffic Management Act 2004

It is therefore not the case that all earlier PCNs are recoverable but only those that have been “prescribed”, which means prescribed by Regulations (s142). TfL have not been able to refer me to any such Regulations and I am unaware of any. This position is adopted in Para 8.33 of the Guidance which states “ Currently under Traffic Management Act 2004 Regulations an authority can only obtain payment of the penalty charge notice for which the vehicle is immobilised or removed and not any other outstanding penalty charge notices”

The question is then whether this refusal to release the vehicle before all the outstanding PCNs are paid is a procedural impropriety for the purposes of the present proceedings. “procedural impropriety” is defined as follows:-

(5) In these Regulations “procedural impropriety” means a failure by the enforcement authority to observe any requirement imposed on it by the 2004 Act, by the General Regulations or by these Regulations in relation to the imposition or recovery of a penalty charge or other sum and includes in particular—

(a)the taking of any step, whether or not involving the service of any document, otherwise than—
(i)in accordance with the conditions subject to which; or
(ii)at the time or during the period when,

it is authorised or required by the General Regulations or these Regulations to be taken..
The requirement to release the vehicle on payment of the PCN for which the vehicle had been removed and the removal fees is set out in S101A Road Traffic Regulation Act 1984 and would not fall within this definition. There is a separate Appeals procedure provided for in Part 4 the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 for cases where the amount demanded to recover a vehicle exceeds the prescribed amount. It therefore seems to me that although I consider TfL was wrong to demand the payment of all outstanding PCNs as a condition of release, that falls to be treated as a separate matter, and that no procedural impropriety has occurred in the proceedings before me relating to the issue of the Notices to Owner.

My conclusion therefore is that the Appellant remains liable for the penalties and that these appeals must be refused. His only recourse is to look to the apparently feckless person, to whom he had the misfortune to hire the vehicle, for reimbursement in due course under the hiring agreements which remain contractually enforceable as between the parties to them.

So there you have it, the owner is liable for the parking of the driver. 

Total cost £19,360

Mr Mustard doesn't have any sympathy for the owner in this case (always hard for a Porsche owner to garner any in any event) and this is why:

Yours frugally

Mr Mustard

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