Memorandum submitted by Neil Herron on
behalf of the Metric Martyrs Defence Fund
I wish to make the following submission to the
Committee but I also wish to make a formal request that further,
more substantive evidence, either written or oral, may be submitted
after the date 3 October 2005.
The reason it will be necessary to do so as
there are allegations of malfeasance, misfeasance and possibly
more serious offences involving decriminalised parking enforcement
in a number of local authority areas currently in the process
of being uncovered. There are also serious concerns and possible
legal action involving the National Parking Adjudication Service.
The outcome of both of these will have fundamental and serious
implications for the future of decriminalised parking enforcement
across the country.
There is currently a serious internal and external
investigation being conducted into the legitimacy of Sunderland
City Council's D.P.E. There has already been an admission by the
City Council that over £20,000 has been collected unlawfully
from motorists with more to follow:
1. Accrington Council have also been
forced to repay monies to motorists who have received unlawful
2. More evidence is being uncovered
in other local authorities arising from incorrect Traffic Regulation
Orders or misinterpreting or misunderstanding the legislative
requirements with regard to DPE.
The implications of legal action being taken
in areas across the country must be fundamental to the Transport
Committee's understanding of the serious concerns that are being
raised with regard to DPE and the perception by the motorist of
1984 V ROAD
The first series of problems arises because
of the inequitous situation across the country whereby parking
restrictions are enforced under two different pieces of legislation.
The motorist does not generally become aware of this inequity
until he has received a ticket . . . ie after having committed
an "offence" (under the 1984 RTRA ) or a "contravention"
(under the 1991 RTA).
Surely this is fundamental principle. The consequences
of this do not appear to have been addressed.
For laws to be accepted and understood by society
at large, they need to be seen as clear, fair and just. However,
with the case of parking offences, it is the case that access
to justice for an alleged offender is potentially totally different
in two neighbouring local authority areas. This is purely dependent
on which parking enforcement regime a Local Authority is operating.
One enforcement regime, operating under the
RTRA 1984, results in an appeal process which allows access to
a magistrates' court. The other, operating under the RTA 1991,
does not allow access to a court of law but to an "independent"
Under the 1984 Act it is the driver who is responsible
for the offence.
Under the 1991 Act it is the registered keeper
who is responsible for the contravention. Hardly fair, just, transparent
or acceptable and not apparent to the motorist until he receives
We have actual cases ready to cite as examples
Therefore, surely the best legislative provision
would be to have one national parking law to ensure fairness,
transparency and acceptance rather than the situation at present,
where under the RTA 1984 the system has the necessary common law
checks and balances yet the system operating under the 1991 RTA
simply perceived by the public as a "revenue raiser"
with Local Authority's simply incentivised by profit and no access
to justice for the motorist.
A simple question to ask is . . . "As the
number of PCN's has exponentially increased have the towns and
cities become clearer of traffic?"
If the DPE enforcement system works then the
number of contraventions should decrease as funded alternatives
This is not the case and there appears to be
no evidence to support this, but the revenue raised from a more
draconian enforcement regime seems to be the main driver, not
the necessity to create a fairer parking enforcement regime for
local businesses, customers and residents.
For the avoidance of any doubt in the following
matter it is very useful that the Houses of Parliament Transport
Committee Press Notice (04/2005-06, 9 August 2005) refers to "parking
fines". There can be no argument. If the Committee, the public,
the Bulk Traffic Enforcement Centre at Northampton County Court
and the legislators consider parking penalty charges as fines
then the attempted justifications put forward by local authorities
that it is not a fine but an "excess charge" or other
play on words, it is clear to all that what we are dealing with
here is a fine.
Therefore, I wish for the Committee to now consider
and address the legality of DPE itself in light of the following.
As no doubt members will be aware, on 21 July
1993, the Speaker of The House of Commons issued a reminder to
the courts. Betty Boothroyd said: "There has of course been
no amendment to The Bill of Rights . . . the House is entitled
to expect that The Bill of Rights will be fully respected by all
those appearing before the courts."
There is a provision in the Bill of Rights Act
1689 which states:
"That all grants and promises of fines and
forfeitures of a particular person before conviction are illegal
This states that a conviction is necessary before
a fine or forfeit can be imposed. As you will be aware, the Bill
of Rights is a "constitutional statue" and may not be
repealed impliedly. This was stated in the case Thoburn v City
of Sunderland, the decision commonly referred to as the "Metric
Martyrs" Judgment. This was handed down in the Divisional
Court (18 February 2002) by Lord Justice Laws and Mr Justice Crane
(I will paraphrase, but have included a copy of the judgment's
relevant sections 62 and 63).
62. "We should recognise a hierarchy
of Acts of Parliament: as it were "ordinary" statutes
and "constitutional statutes." The special status of
constitutional statutes follows the special status of constitutional
rights. Examples are the . . . Bill of Rights 1689 . . ."
63. "Ordinary statutes may be impliedly
repealed. Constitutional statutes may not . . ."
This was upheld by Lords Bingham, Scott and
Steyn in an appeal which went to the House of Lords on Monday
15 July 2002.
I am not aware that the Road Traffic Act 1991
makes express reference to repealing the Bill of Rights Act 1689
therefore there can be no fine except for one that is imposed
by a court.
It is therefore important that the Transport
Committee considers the implications of any attempt to override
the provisions of the Bill of Rights and the constitutional considerations
of doing so. It will then be necessary to understand the constitutional
considerations of ignoring the Declaration of Rights.
A specific case, which has "implications"
for all other DPE's, across the country. The submission or application
to the Department for Transport for approval by the Secretary
of State to create the Special Parking Area to allow Sunderland
City Council to create a DPE simply gave "reassurances"
that all necessary signs, lines and Traffic Regulation Orders
would be in place when the DPE was to commence. If it is proved
not to be the case and that the Secretary of State was misled
into granting an SPA creating a DPE then there are very serious
implications indeed as over 60,000 PCNs will have been issued
The investigation is ongoing but there has already
been an admission to unlawfully receiving over £20,000 from
PCN's issued under non-existant TRO's and the allegation is that
none of the TRO's are "in force" thereby meaning every
PCN issued has been done so unlawfully.
There appears to have been no checks by either
the DfT or the Secretary of State regarding the substance of claims
made by any applicant to have valid and accurate signage and TROs.
Evidence is coming to light of many other similar
situations by other Local Authorities. It is in light of this
that I stress the need for further, more detailed submissions
to the Committee involving citing specific cases in detail.
NPAS (NATIONAL PARKING
Again, there is an ongoing investigation in
relation to this body. It involves complaints to the Department
of Constitutional Affairs and the Law Society.
NPAS is representing itself as a "Court
of Law" on its website yet when questioned in writing it
confirms it is not a court of law, but a tribunal.
However, the main concern is that NPAS is not
"independent" as it is scrutinised by a Joint Committee
(comprising appointed members from participating LA's ) and is
funded solely by 60p per PCN issued.
There is no right of appeal except on a point
If NPAS is not a court of Law within the meaning
of Article 234 EC, therefore its decision will be in contravention
of Article 6 of The European Convention on Human Rights
In order to determine whether a body making
a reference is a court or tribunal of a Member State for the purposes
of Article 234 EC, the Court takes account of a number of factors,
such as whether the body is established by law, whether it is
permanent, whether its jurisdiction is compulsory, whether its
procedure is inter partes, whether it applies rules of law and
whether it is independent (see, in particular, Case C-54/96 Dorsch
Consult  ECR I-4961, paragraph 23, and the case-law there
cited, and Case C-516/99 Schmid  ECR I-4573, paragraph 34).
Under the Court's case-law, an arbitration tribunal
is not a "court or tribunal of a Member State" within
the meaning of Article 234 EC where the parties are under no obligation,
in law or in fact, to refer their disputes to arbitration and
the public authorities of the Member State concerned are not involved
in the decision to opt for arbitration nor required to intervene
of their own accord in the proceedings before the arbitrator (Case
102/81 "Nordsee" Deutsche Hochseefischerei  ECR
1095, paragraphs 10 to 12, and Case C-126/97 Eco Swiss 
ECR I-3055, paragraph 34).
Therefore because of the rights of the individual
are being removed in the name of parking "efficiency"
then the resistance to DPE will grow and as more and more motorists
realise the illegitimacy of the whole operation and begin to challenge
and clog the system then it will collapse under its own bureaucratic
Campaign Director, Metric Martyrs Defence Fund