Council stupidity and reversing the burden of proof

Cloning of numberplates is very common. It is an absolute pain for the innocent party who has to engage with the police, the DVLA and all the councils where the naughty car committed a contravention. It is usual for there to be multiple PCNs and rather than all representations being accepted or refused you end up with a mix, utterly stupid. Here is a letter which Barnet Council sent after one such representation and far from being bound by a made up time limit the recipient doesn't even have to reply:

As motorists tend to get nervous about not replying Mr Mustard provides some of the information and did so in this case:

 

Providing the log book and the council's own photographs should have been enough but no, the council rejected the perfect challenge in the hope that an innocent party would part with £65 they didn't owe. Not when Mr Mustard is stood behind them they won't.

Mr Mustard marched on. He started an Appeal to the independent adjudicator at London Tribunals on behalf of Miss M for Mini.

Only a week later Barnet Council threw in the towel and cancelled the PCN. They had incurred a tribunal fee of c. £30 which is just money down the drain. The council were never going to win. A person whose car has been cloned, although it is helpful to provide information, is under no obligation to provide any information at all. The council have to prove the car they wish to obtain a penalty for is your one. Here is a comprehensive decision on the subject.

You can send that decision to any council when telling them your car has been cloned and you are providing a reasonably helpful amount of information. You do not have to jump through all of the council's hoops, tell them they have to prove the car in question is yours.

Once you get the first cloned PCN start taking a photo of your car every time you park it so that you then have a comprehensive record of where it was at all times i.e. you parked at home on Tuesday morning and then didn't move it until Friday afternoon (and so on) is easily evidenced by just 2 photos.

Even before then put distinctive stickers in your front and rear windows or on your numberplates, anything you like, a pokemon, your football team colours, baby on board etc etc and then the cloned vehicle will look visibly different to the real car.

Make 2025 the year that you take no nonsense.

The end.

Ealing Council - believing anything to save time and/or money

Here is a car committing a contravention whilst bearing cloned numberplates

 For the displayed numberplate DVLA provided the following data 

Mr Mustard make some enquiries of Ealing Council in order to see the extent to which they make sure they are sending a PCN to the keeper of the vehicle seen in their cctv.

 

What we can see from this is that between receiving the DVLA data and issuing the PCN there is no sanity check to make sure that the car in view is at least a grey Mini (It could still be a clone as a dodgy Mini owner will try to use the numberplate of another Mini but that would be reasonable behaviour by the council).

There are two reasons why Ealing Council should be checking the reasonableness of DVLA provided data. The first one is the legal basis. The legislation says this about the contents of a PCN

To meet this requirement the council must believe that the vehicle captured by their camera is the one for which they have obtained DVLA data and clearly that is not the case here.

Secondly, as pointed out by one of Mr Mustard's careful readers, the KADOE (Keeper at date of event contact with DVLA) requires that a check be carried out. The standard wording from an old contract follows

Ealing Council have inadequate audit processes in place and need to up their game. From now on Mr Mustard is going to report every obviously cloned car to DVLA when a council has not noticed the bleeding obvious and therefore breached their contract.

The end.

 

DVLA - one part of their advice is dangerous & could be expensive

Here follows a standard letter from DVLA

Do not follow the line which Mr Mustard has highlighted in red as if you do not challenge (make representations against) a PCN that you are not the keeper of the vehicle which was given the PCN, but that it is a clone, the PCN will progress though a number of stages and end up with a bailiff.

 

Report the car cloned to the police and the DVLA and challenge every PCN that you receive. You may get a lot of PCNs at the start but you should by reporting the cloning to the police make it too hot to continue to use and then the criminals will stop and move on to another plate.

The end.

 

Newham - 6 stressful months

Regular readers will recall the blog post about Newham and the cloned car previous blog and the PCNs have now finally been disposed of. Mr Mustard thought you might like to see his most recent exchange of emails with Newham Council.

Again thank you for the additional evidence in regards to the claim of a cloned registration.

I’ve now been able to compare both vehicles and we can now accept that the vehicle captured by our CCTV camera’s is not the vehicle belonging to redacted. We therefore shall be contacting London Tribunals to advise that we will not be contesting 6 appeals.

I hope that you can see from the evidence pack why we were unable to cancel the PCN’s before until now. When we contacted the Police by telephone they advised that they had no record of the reference numbers supplied. This obviously raised suspicion.

After contacting both Redbridge & Barking & Dagenham in respect of the cancellation letters you supplied, both authorities advised that no investigation was carried out to come to their conclusions. We therefore had not found grounds to cancel the PCN’s.

After reviewing the evidence supplied this morning I’m happy to accept the cloned vehicle claim and well be cancelling all PCN’s this afternoon. I’m sorry we couldn’t have come to this conclusion earlier.

Please accept this email as acknowledgement that we will be A) not contesting the 6 ETA appeals scheduled for tomorrow afternoon, and B) that the following PCN’s have been cancelled

Thank you for your detailed response. I promised that I would send further thoughts, which will appear on my blog but without your name.

The evidence I had just sent you was a PowerPoint presentation of differences between the two cars, which my client had organised and an insurance assessor's report that the real car had not been in a recent accident (and there was YouTube footage of it relating to an accident with a London Ambulance Service vehicle) which confirmed that my client's car had not recently been repaired.

I don't agree that you couldn't tell that the two vehicles were different before now. The formal representations included 'The attached photos may help highlight difference in the actual car to your captured images'. Your response was 'If this is not your vehicle and is a possible ringer, then you need to supply evidence, and also pictures of your own vehicle, so that the Council can compare'. Perhaps I did forget to include them when writing to you but given the clear statement that they were included you could have asked for them to be supplied within 14 days without getting anywhere near the 3 month limit for responding which applies to moving traffic contraventions. Even better, Newham allow for representations to be made only in writing or by fax (not many of those nowadays) and not the 21st century method of email and then the inclusion or not of the photographs would not be in doubt and the whole communication process would be slicker.

However, if we move forward to the making of the Appeal to the tribunal, I know you had 7 clear colour photographs of the real car, including shots from all 4 sides of the car, to study and that was more than adequate for you to see that the wheels, number plate mounting screws, side windows and rear window were different and the borough missed an opportunity at that stage to accept the car had been cloned but did not avail themselves of it.

You did try to stand up my Appeal points that Barking & Dagenham had cancelled two PCNs, that Redbridge had cancelled one and that Civil Enforcement for the Ibis hotel had cancelled one. In addition no claim was being made by the London Ambulance Service for the damage to their vehicle.

You didn't have authority from my client to speak to any of those organisations (although it would have been granted if requested) and so your emails to them containing my client's data probably breached the data protection act especially as you told one of the councils what the police had told you and induced them to break the Act likewise. One council told you that they had found minor differences in number plate screw placement and so they gave my client the benefit of the doubt; Newham chose to ignore that evidence/conclusion.

One police force confirmed that my client had phoned in the report of cloning; this was probably a data protection breach. They gave you the full reference number whereas I only gave you the last 3 digits (not realising it wasn't complete) but they declined to confirm the address and car details as they didn't regard email as secure. That however should have been enough for you. My client's report of cloning to the police had therefore been verified by you. Why you then contested the Appeal in the light of the evidence, the car, on the balance of probabilities, having been cloned, is not easily understood. I think you had ample evidence on which to cancel the PCNs.

How likely was it that my client would clone his own number plate onto a similar but different Audi, knowing that the PCNs would all come to him as registered keeper, so that he could go on a parking ticket and bad driving spree (there were 11 events in 4 days) in east London whilst living in Warwickshire?

Whilst in law, there is a presumption of innocence until proven guilty, PCN are civil contraventions and the relevant Regulations or Acts have been written the other way around. You are guilty by default if you don't defend yourself.

Put yourself now in my client's shoes. He is an innocent man. He has received 10 penalty charge notices (one was a parking charge notice but no matter) which he has had to fight. During a 4 day period he was sent demands worth more than £1,000. No matter how innocent you are that is a worry.

Unlike the other boroughs Newham dilly dallied with his representations and they are rather generously allowed 3 months in which to respond rather than the already over generous 56 days which apply to parking PCN. If my client had missed any 28 day deadline he would have become liable for the PCNs at an uplift of 50%

Whether I do the paperwork, or my client does it, it still has to be done.

Newham would have looked a little foolish at the tribunal because of this statement in the case summary "There is no explanation as to the relashonship (sic) between the appellant and Mr Dishman' There doesn't have to be an any further explanation. Newham were in possession of a signed letter authorising me to be the representative. It is the right of any person to have, in a civil matter, any representative they wish. The tribunal were hardly going to be at all bothered by my presence having adjudicated on 124 PCN with me as the representative in 2017 alone. In fact they find my presence helpful as they receive carefully crafted representations which go to the heart of the points in question each time which makes them more efficient. I am sure you will take account of my experience should I appear as a representative in Newham on a future occasion, as I will from time to time.

So my client is already stressed by the number of PCNs he received and then Newham taking from 28 March to 26 June to formulate & post their rejection left my client under the burden of 6 possible PCN at £130 for a day short of 3 months. That was an unreasonable delay on your part and even then you only responded on 4 out of the 6 PCN.

My client then had to book a day off from his workplace in order to travel to London for the hearing, his evidence in person would have shown him to be a credible witness and I think I could have shown that Newham's behaviour in not properly comparing the photographs at the time when the Appeals were lodged a month prior, was wholly unreasonable and made a good case for costs notwithstanding that they are rarely awarded. We'll never know now. I have missed the spectacle of seeing how you were going to argue that my client, with 5 spoke wheels on his car, parked for the day within a short distance of the tribunal so you could have examined it along with the adjudicator, was the same car as the one Newham filmed with 10 spoke wheels.

In addition, in order to obtain my assistance, my client agreed at the beginning to donate to the North London Hospice. The suggested rate for one PCN is £25. He would have been £225 out of pocket for 9 PCNs but I didn't press him to donate that amount as I expected the cases to be quick & easy. They were, except in Newham.

I asked the adjudicator last week how many cases of cloned cars which appeared in front of him were not real and he struggled to recall any. I have read every tribunal decision for Barnet during the last 5 years and the only cloned cases lost were ones on which the motorist hadn't got their act together properly to produce the evidence. The vast majority of cases had provided photos and had very quick cancellations.

I don't know what it has been like in Newham as I rarely read decisions for your borough but what I do think is that you need to have a rethink about how you deal with such cases. I had a look at your parking policy and searching for cloned or cloning reveals no answers.

I think the time has come to update your policy and have a more open mind that if a motorist says his car has been cloned, it probably has. Please remember that you are dealing with people with real feelings, not just PCN numbers.

Sorry this is a long read but it is intended to do good and assist Newham Council to do better.

Yours frugally

Mr Mustard

Newham Council out of line

Cinnamon clones

On 28 and 30 March the representations against 6 PCN for committing the same moving traffic contravention were delivered to Newham Council. The first set of representations were against 4 PCN and the second for 2 more which came along just after.

They read as follows:

This vehicle (LN08***) has been cloned. It is used during the working week in Rugby for commuting. The attached photos may help highlight differences in the actual car to your captured images.

It has been reported to Warwickshire Police under ref 123 and the Met under CHS12345 & 54321. They don't seem to issue paperwork.

The challenge is that the car has been cloned so the contravention did not occur.

Rather than issuing any more PCN it would be helpful if you were to report the car to the police if any CEO sights the car on the street.

Would anyone who was not genuine invite the involvement of the police? No.

This was one of the photos (without the redacted plate obviously)

against which the council could compare their camera footage. The number plate screws and the name of the dealer were different to the cloned car.

Mr Mustard's client has now just received, a few days within the rather too generous 3 months which councils are allowed (it is only 56 days for parking) to respond to representations about moving traffic contraventions, Notices of Rejection for 4 of them, but not the same 4 as were challenged together, only 2 of those and the 2 later ones.

This is part of what their Notices of Rejection contain:

Do you get the feeling that Newham have not studied the problem very carefully given that photographs were submitted, photographs that other enforcement authorities found to be adequate. Unfortunately for Newham, Barking & Dagenham Council cancelled, Redbridge Council cancelled, the IBIS hotel cancelled & the London ambulance service accepted that it was not Mr Mustard's client who hit one of their ambulances and sodded off. They all had similar evidence to assess.

Newham Council have issued 4 forms on which an Appeal can be made to London Tribunals. Each one of those costs Newham Council £30 so they are going to be £120 down at the end, the result of their failure to properly consider the representations. Mr Mustard wonders how often someone who lives in Rugby decides to pretend their car has been cloned and then carries out multiple driving contraventions in London? Probably never.

Mr Mustard has, during his preparations for the Appeals, realised that the wheels of the cloned car are much more fancy than the real car.

The cloned car about to pass a 'No motor vehicles' sign

The real car at home in Rugby.

Mr Mustard would send these extra photographs off to Newham and give them a second chance to cancel but as they don't provide an email address, nor a phone number to have a friendly chat on, he can't easily do that so they will just have to receive the photos with the official Appeals as he doesn't want to miss the 28 day deadline for getting the Appeals into the system.

Separately Mr Mustard has written to London Councils suggesting that they could play a role in collating information about cloned cars so that once one authority is satisfied that a vehicle has been cloned then other authorities would probably want to follow their lead and everyone would save time & trouble. Let's see what they come back with. 

Cloning is far too common and creates huge amounts of paperwork, and the necessity to prove your innocence otherwise you become guilty by default, as well as the worry that you will be financially liable for something you did not do which really is an injustice.

Yours frugally

Mr Mustard