Examination of Witnesses (Questions 280
- 299)
WEDNESDAY 14 DECEMBER 2005
MS CAROLINE
SHEPPARD AND
MR MARTIN
WOOD
Q280 Chairman: Excellent idea.
Mr Wood: I think everyone recognises
that parking control is an important and valuable function and
a very necessary one. Reading yesterday in The Times about
the situation in Paris where perhaps things are not enforced as
they are here, one can appreciate why it is important that we
do have parking controls. I think one has to see this, particularly
when one gets to the enforcement stage, as not just about parking,
but it is actually about law enforcement and it is about the power
of the state to impose a penalty on the citizen and, therefore,
it must be done right. Now, there is a debate about the extent
to which it is not done right and, from our perspective and our
position, we are not in a position to quantify that, but our concern
really is about quality. The adjudicators do continue to see some
issues that do concern them and I think there are two really key
issues that need to be highlighted. The first is that local authorities'
enforcement processes need to be legally compliant, they need
to be carried out in the way that the law says they should be
carried out and there are occasions when that is not the case.
Q281 Chairman: Why?
Mr Wood: Well, why would be a
question you would have to put to the local authorities, but,
as an example, we have an instance which has come to our attention
recently where a local authority has been issuing what is called
the `charge certificate' and that is a document which says, "You
have no further right to contest this penalty which has now gone
up by a further 50%", and this local authority has been issuing
some of these documents at a time when an appeal has been pending
before the adjudicators.
Q282 Chairman: Wait a minute, let
me get the order right. They get the original charge, they then
appeal against it and you are saying that a local authority that
you know of is issuing this prohibition, when, at what stage—before
the appeal is heard?
Mr Wood: Before the appeal has
been decided, whereas it should not be issued until the appeal
has been decided, so that is an example. The other issue that
I think needs to be highlighted is that training has been mentioned
and it seems to the adjudicators that that is absolutely central
to getting the enforcement process dealt with correctly, and that
relates both to parking attendants and, equally importantly, to
the in-house staff who deal with the representations that are
received. I think those are the key issues from the adjudicators'
point of view.
Q283 Chairman: That is very helpful.
Do you think that the Parking Adjudication Service could be seen,
or is seen, as truly independent when it is funded and governed
by the same councils whose decisions it is asked to review?
Mr Wood: Certainly that is a question
that some appellants put to the adjudicators, but, as we always
reassure appellants, we are judicial appointments and we are appointed
with the consent of the Lord Chancellor. Whether they win or lose
their appeal makes absolutely no difference to us and we are entirely
impartial and have no stake in the outcome and act quite independently.
Q284 Chairman: So it would not be
affected by your being funded by some other source?
Mr Wood: No, the fact that we
are funded effectively by the local authority does not affect
our independence at all.
Q285 Chairman: Do you think that
the fact that the Association of London Government runs the London
Parking Adjudication Service is an appropriate level of independence?
Mr Wood: Certainly there could
well be an argument in terms of the perception of independence
for the appeal service to be operated by somebody else, but certainly,
as far as the actuality of independence is concerned, people can
be assured that we are acting entirely independently.
Q286 Chairman: Can I ask you, Ms
Sheppard, how do you ensure consistency in the outcome of appeals
across the country and over a period of time?
Ms Sheppard: I think consistency
is regarded as a problem, although I think there are two different
views on what consistency actually is. For example, the councils
perceive our decisions nationally as being inconsistent and they
talk quite a lot about this amongst themselves, but recently,
prior to a conference I was having of all our adjudicators, I
got our Tribunal Manager to write to all the councils and ask
them to produce examples from 2005 of the decisions they regarded
as inconsistent, also of a helpful decision that they had lost
and a helpful decision that they had won. Only 40% of them availed
themselves of the opportunity to actually raise this more specifically
with us and of the ones that did come back to us, and a lot of
them were very helpful, in at least 60% of the examples that were
produced to us as being inconsistent, we did not think they were
because it was about the difference of the burden of proof of
the evidence. The council had simply seen it, for example, as
a ticket not being on display in a car and then, for example,
we might have heard oral evidence in one case from the appellant
which we accepted, whereas in perhaps another one there was much
weaker evidence, or possibly we did not believe the appellant.
Therefore, they would have different outcomes, although the councils
were producing these examples as ones that they regarded as inconsistent.
There is certainly work to be done in trying to explain to the
councils how we reach our decisions and that is undoubtedly clear,
but I think perhaps the perception of consistency is not as clear
as the councils would think.
Q287 Mrs Ellman: The Freight Association
suggested that over-zealousness was a characteristic in London
only. Would you accept that?
Ms Sheppard: Well, one of the
things I was going to say at the beginning is obviously we have
heard talked about good and bad councils and some of the councils
outside London are, I think, outstanding in what they are doing
and certainly in our annual reports we try to focus on different
types of statistics. We look at how many cases they win, what
percentage of PCNs issued are appealed, we also look at the percentage
they do not contest, and I can say without any hesitation in our
recent annual report that is about to be published that Harrogate,
Sefton, Herefordshire and Winchester all have outstanding records
across the board in that and I think there are a lot of very good
councils outside London. Having said that, I think there are also
ones where certainly we hear about over-zealousness. I think one
of the problems with over-zealousness again is that it is actually
misunderstood, if I may say, because I think in many ways the
parking attendants are probably just doing as they have been told
to do and I feel quite strongly that a lot of this is not necessarily
down to the individuals on the street in their uniforms who are
walking around issuing tickets. I think a lot of them are acting
on instructions. I think a lot of the problem arises thereafter
when people write in and explain what may have happened and I
think that one of again the misconceptions about the nature of
the scheme is that councils feel that the only question that they
have to ask themselves is: was the parking attendant correct to
issue the ticket? If the answer to that is yes, then it stands,
whereas of course there may well be other explanations. You have
heard about loading and unloading already, and quite often there
may be no criticism whatsoever to a parking attendant issuing
a ticket to a car on a yellow line, but subsequently somebody
might write in and say, "I was actually delivering a washing
machine to a second-floor flat", which they are entitled
to do, that is a lawful activity, it is a legal exemption, and
the councils do not necessarily perceive it as such.
Q288 Mrs Ellman: Does that mean then
that you do not accept the view that over-zealousness applies
just to London?
Ms Sheppard: I think there are
some examples and certainly we hear accusations of it. It is very
difficult for us actually to make any true findings about that.
Mr Wood: It depends what one means
by "over-zealousness". I think one has to distinguish
between cases. There is talk of bad tickets. Now, to my mind,
a bad ticket would be one which was unlawfully issued. When one
talks about over-zealousness I think one may be talking in the
context of, "I only over-stayed by three or four minutes.
Why did I have to get a ticket for that?" One can take different
views about whether it is over-zealous or not to issue a ticket
for over-staying for such a short time, but it is not unlawful
to issue one in that situation. I think one needs to distinguish
between lawfulness and matters of policy and zealousness, which
are matters of policy.
Q289 Mrs Ellman: There could be two
adjoining boroughs, one operating decriminalised parking and one
not and that means the appeals process would be different in those
two instances. Do you think that presents a problem?
Ms Sheppard: I think it is a matter
of enormous concern. I think it is totally inappropriate in this
country that on one side of the road you are treated as a criminal,
you go through the courts and obviously the sanction for not paying
is imprisonment, and yet if you do exactly the same thing on the
other side of the road it is a civil contravention. I think it
is uncomfortable, but it is obviously a pragmatic approach that
has been adopted by the Government. I am not sure they could do
anything else about it at that stage.
Q290 Mrs Ellman: Would you want to
see parking matters decriminalised everywhere?
Ms Sheppard: Obviously you have
been hearing about public information from previous witnesses.
If there was a unified scheme now it would make this whole issue
of public information much easier because in that way obviously
the same process of enforcement would be applied across the country.
Mr Wood: A major difference between
the two systems is that in the decriminalised system you have
a fixed penalty which you do not have in the criminal system,
the penalty is in the discretion of the magistrate.
Q291 Mrs Ellman: Do you think everything
should be decriminalised?
Mr Wood: I think it is desirable
to have a single scheme across the country. The move is certainly
towards decriminalisation.
Ms Sheppard: Having said that,
the magistrates have a terrific power that the adjudicators do
not, and that is that they can give an absolute or a conditional
discharge. Their system is more responsive to this area of proportionality,
which is what I think we have been talking about with over-zealousness.
Obviously Mr Wood has clarified it helpfully. For example, if
somebody comes to us and says, "I was the only car in the
car park. I was parked slightly outside the bay because there
was a tree and my dog was in the car and it was a sunny day. There
are photographs that show that the car park was virtually empty
and yet because it had two wheels over the bay it received a penalty
charge," we do not have the power to mitigate the penalty
in those circumstances if the council are insisting on pursuing
that penalty, but the magistrates do have that power.
Q292 Mrs Ellman: Who should be responsible
for motorists knowing more clearly the processes that are involved
and what their rights of representation are? Should the Adjudication
Service be doing more?
Mr Wood: The point at which motorists
need to know what their rights are is the point at which this
whole process starts and that is where they get a penalty charge
notice. There are legal requirements for a penalty charge notice
to state what the motorist's rights are. They could be stated
more fully, particularly in drawing attention to the fact that
at the end of the day the motorist will have a right of appeal
to an adjudicator and, similarly, to draw attention to the fact
that the motorist can make informal representations to the council
at an early stage. So certainly the rights need to be stated more
clearly. The appropriate place is on the penalty charge notice
which is what starts the whole process going.
Q293 Mrs Ellman: How should that
be achieved, by statutory guidance or some other means?
Ms Sheppard: At present the requirement
to inform the public is a bit like a board game, ie it is only
when you are on the square before that you can see what is on
the next square; it is a bit like Alice in Wonderland.
The penalty charge notice says that you can write in informing
or that you will get a notice but it does not set out the statutory
grounds. Nobody has a clue what they may or may not say. At that
stage people do write in and say what they want to be considered.
People need to have a more general understanding of the scheme.
Loads and loads of people do not know that Martin Wood and I exist.
They do not know that there are two tribunals that are available
if they disagree with things.
Q294 Chairman: So we should have
a little publicity campaign about you both.
Ms Sheppard: Not necessarily.
Q295 Chairman: Perhaps some talking
heads!
Ms Sheppard: It is not well known
what the scheme is.
Q296 Mrs Ellman: Who is responsible
for that?
Ms Sheppard: Ultimately the Department
for Transport has a role to play in this in terms of public information.
Some councils have websites and some do not; some put their policies
on the websites and some do not. A copy of the Traffic Regulation
Orders in terms of where you can load and unload, for example,
is not available in many councils. If you could look on a website
and see when you were allowed to load or unload then it would
be their responsibility.
Q297 Mrs Ellman: Who should be responsible
for making sure that is the case?
Ms Sheppard: Each council must
be responsible for their own council, but there needs to be general
advice about the process. The councils need to explain their regulations
and their policies and there has to be more general information
about the whole citizen's right in terms of the process.
Q298 Mrs Ellman: Should a longer
time be allowed for rebates on fines so that people can make representations
properly?
Mr Wood: Are you talking about
the 14-day period?
Q299 Mrs Ellman: Yes.
Mr Wood: There is clearly a case
for having an incentive to pay early and have the matter over
and done with. One can debate the 14-day period, one could say
it could be 21 or 28 days, but at the end of the day it is a little
bit of an arbitrary period. One does not want it to be too extended,
one wants to get the process moving. I would not have any strong
views about the 14-day period.
Ms Sheppard: It does cause a lot
of problems because in many cases, if people have not found the
penalty charge notice on their car, the first time they hear about
it is when they get a notice to owner 28 days later or possibly,
as in some cases, five months later, saying that the penalty charge
notice was issued. Regrettably, there are a few councils who take
the view that "We stuck it on the car and so it's tough luck".
Many councils are more reasonable about that and do say "Well,
alright" and re-offer the discount. We have a lot of very
disgruntled people because it is not a trivial amount of money.
This is thought to be small beer and quick and easy justice, but
to a lot of people £30 or £50 is a lot of money and
I just do not think we should ignore that.
Mr Wood: Indeed £100.
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