APPENDIX 10
Memorandum submitted by Mr Richard M Bentley
It may assist the Committee to be aware of my
background and experience.
I am a retired former police officer with over
20 years' experience of road policing. For the last six years
of my service I held the post of Eastern Area Traffic Management
Officer for the North Yorkshire Police, the largest force area
in the country. I had the responsibility for working at all levels
with every agency and any interested parties to ensure restrictions
imposed by the highway authorities were both lawful and enforceable.
I regularly undertook investigations into restrictions
and processes on behalf of both the Administration of Justice
Department and the CPS. I was tasked to investigate and report
upon the status of controlled parking zones and other restrictions
countywide.
I represented the Chief Officer at executive
level with an extensive list of agencies including: Regional Government,
Highways Agency, Department for transport, County and Local Authority
Committee's.
I am now employed as a consultant and expert
witness working in the area of traffic signs and traffic regulations.
Dealing with each area of examination in turn.
1. My experiences suggest that regardless of
statute and regulations, highway authorities routinely apply parking
restrictions based upon their own principles such as:
(a) What the public doesn't know won't hurt
them.
Everyone knows what a sign means, if it
looks "right" it will do.
The odd person who continues to fight will
have the tickets cancelled, 999 out of 1,000 will pay up.
Most people can't be bothered to argue over
£30 or are too frightened of taking on the authority.
(b) The Regulations are just guidelines,
signing isn't that critical, if we limit work to what we can get
away with, the law is so complex no one will notice.
By way of example, I make reference to the towns
of Scarborough and Harrogate, North Yorkshire, I was tasked to
carry out extensive investigations into both regimes in 2001.
Harrogate sought decriminalised parking approval
at the turn of this century. The authority had based their regime
upon the City of York. Scarborough based their zonal system on
the Harrogate model, creating the largest controlled parking zone
in the country. It is relevant that both schemes were initially
criminal systems.
Scarborough Police enforce the lining restrictions,
a system that was subject to a number of legal challenges in the
Courts.
The tasking was undertaken in both towns, following
my reporting of major defects in Scarborough to a multi-agency
meeting held to discuss that initial "problem".
Both parking regimes were found to be fatally
flawed, in most areas bay markings, upright plates, yellow lines
and zonal boundary signs were routinely non-prescribed and therefore
defective. Scarborough had additional issues relating to specific
traffic orders.
Following the investigation, Harrogate accepted
the result of the enquiry and rectified the system. Post the remedial
work a Statutory Instrument was created and decriminalised authorised.
It should be noted that, regardless of the identified defects,
no financial remedies were instituted to repay fines that were
wrongly applied and money taken.
Scarborough has spent the last five years disputing
the relevance of defects and continued to enforce identified flawed
systems. This is the case even though the authority was investigated
by the Local Government Ombudsman and found guilty of maladministration
causing injustice.
That report highlighted a number of issues including
the use of civil action and CCJ's in a criminal system.
The Ombudsman's report revealed that Scarborough
had taken 10 motorists to Civil Court and CCJ's were applied,
yet, not one of these motorists had been taken to Magistrates'
Court or convicted of a parking offence.
At a public Scrutiny Committee meeting, their
actions were excused by a senior officer as the use of a grey
area of law. No proactive offer of recompense has ever been made.
Regardless of five years of discussions with the police, the Government
and the signing consultants, the enforced parking regime remains
flawed.
Whilst as far as can be ascertained, the authority
has not prosecuted a single motorist in the Courts. It is my understanding
that at this time the authority is still pursuing cash for time
expired prosecutions, drivers are allegedly being offered the
opportunity to pay their "debts" by instalment.
Currently the authority is carrying out rectifications
to signing defects in readiness for decriminalisation of the parking
regime. When picked up by the media, these remedies are explained
away as cosmetic alterations during routine maintenance.
Motorists who have been the subject to questionable
parking enforcement across the length and breadth of the country
regularly contact me.
Challenges to enforcement is at best difficult,
at worse virtually impossible, few of the drivers are being made
aware of the adjudication process, the time constraints placed
upon them, nor their right to complain to the Local Government
Ombudsman.
My understanding of accountability within authorities,
relates primarily to the regimes I have been involved in early
consultation or post creation examination. These include many
of the market towns of North Yorkshire and issues relating to
the Cities of York and Leeds.
Of all the regimes I have examined, I am aware
of only one authority suspending enforcement whilst remedial work
was undertaken.
I am not aware of a single highway authority
or agency refunding or compensating motorists for fines questionably
applied.
One frequently repeated quote during my police
service was that "no one challenges a £30 ticket".
Whilst that may well be correct in the vast
majority of cases and is relied upon by many Councils, not all
matters are merely £30.
One member of the public from the Southampton
area has approached me. I am informed he is currently facing over
£24,800 in excess charges and bailiff fees, this relates
to the issue of 52 parking tickets whilst the authority challenged
the status of his bathroom (converted from a garage) and refusal
to issue a resident's parking permit.
I have reviewed photographs of parking bays
in relation to this matter, the images show the bays to be of
a non-prescribed format, enquiries reveal that no authority was
sought or has been granted from the Secretary of State for the
use of such signing.
How performance is evaluated
It is my understanding the evaluation process
is merely a matter of checking the total amount of money raised,
the number of fines levied and ensuring that the financial return
meets the requirements set by the Members.
There is an incentive to ensure the minimum
numbers of tickets are cancelled, questions may be asked when
the accounts are audited at the end of each financial year.
Working within local authorities revealed that
the members' and the auditors' primary goal is to ensure a good
financial return, not the provision of a safe environment and
the free passage of traffic.
2. Currently, I am not aware of any penalty being
applied to authorities that enforce unlawful, flawed or otherwise
questionable regime.
Provided the media can be controlled and the
release of information is therefore limited, spin, bluff and damage
limitation systems ensure any potential challenge capable of reducing
income is prevented.
Within the criminal justice system, regardless
of the outcome, if the enforcement body manipulates evidence,
is deceptive in its working practices or seeks the payment of
fines without the full backing of the criminal law system, the
Courts can and will apply justice to all parties involved.
The decriminalised systems, and, as in Scarborough,
the criminal systems enforced as decriminalised regimes, are open
to institutional abuse. This is especially so when it is impossible
to raise genuine concerns within either a Courts or appeals tribunal.
In the case of the former, a council merely
has to cancel a challenge to an excess charge to prevent the status
of the flawed regime reaching either the Local Government Ombudsman
or the Parking Adjudication Service.
With the latter, not instigating proceedings
simply prevents matters being publicly challenged within the Court
system. Giving the authority the ability to plausibly deny any
legal flaws exist, for no challenge has been successful in the
Courts.
A consequence of both instances is the view
that provided that nine hundred and ninety nine out of one thousand
motorists can be encouraged to pay the charge/fine, the public
will not be aware and the auditor will not question the cancellation
of such an insignificant number of PCN's.
Is statutory guidance required to promote consistency?
Authorities employ professional officers, legal
departments, engineers and consultants. The officers have free
access to the legislation, together with unrestricted guidance
from both the Regional, and the Central Governments Department
of Transport Officers.
Legislation is clear and precise, the Traffic
Signs Regulations and General Directions additionally carry the
specific Directions of the Secretary of State.
Whilst Officers and Council representatives
will comment upon the complexity of the legislation, I am drawn
to mention that yes, whilst it is complicated, to those employed
in this field, with a primary role to deal with the issues, the
legislation forms the backbone of their work.
The detail provided within the legislation is
only a hindrance to those wishing to work outside of the legal
boundaries and constraints of law.
In a considerable number of areas, defects exist
because of incompetence or a desire to provide something different.
The wish to be adventurous will usually be totally unacceptable
to the Department for Transport.
The latter would lead to a refusal to authorise
the use of non-prescribed signing on the part of those with the
delegated powers of the Secretary of State, authorities knowing
this, do not seek approval.
This in turn leads to the provision of signing
and restrictions that are inappropriate, unlawful and known to
be defective.
The Road Traffic Regulation Act demands compliance
with signing law, and a highway authority is only empowered to
place or erect lawful traffic signs on the roads in their area.
The Secretary of State has the power to demand
the removal of non-compliant signing. Any failure to remedy the
defect can be enforced by the Secretary of State and charged to
that errant authority.
It is my understanding that only one example
exists of an authority being so instructed to remove unlawful
signing, this was many years ago in Oldham, Lancashire.
Lack of government support to officers who have
the ability to exercise this power has resulted in lip service
being paid to signing law. Evidence of this can be found in most
areas of the country, this lack of policing reinforces the belief
by authorities that rule of law can be comfortably skirted round,
the only thing to fear is the odd warning letter from the Department
for Transport.
Guidance on the application of Statute and Regulations
is provided clearly and adequately in the various Chapters of
the Traffic Signs Manual together with Traffic Advisory Leaflets.
Mechanisms are, in my opinion, required to ensure
compliance with the current balanced and appropriate legislation,
not the provision of more guidance, be that Statutory or advisory.
3. 1. The system is far from fair to
the general public.
Parking is an effective revenue earner
for any local authority who can benefit from the freedom to increase
its income, rather than be self constrained by compliance with
the rule of law.
The mechanisms applied are there to
ensure, or should I say, to encourage payment and therefore provide
a reliable income.
2. This situation would be improved dramatically
if challenges to the system were thorough, transparent, heard
in public and clearly beyond reproach.
The current system is self-enforced risk
management.
The advantage of the criminal system was the
independence of the Police and the Courts from any financial benefit.
Parking restrictions should be legislatively
applied to aid free movement of traffic and increase road safety.
Currently, authorities place income generating
parking bays around junctions, creating driving hazards in breach
of the good practice born out of tragedy set out within the Highway
Code.
If safety is a primary issue, collision-generating
systems would not be created. I believe other mechanisms must
therefore be influencing authorities, the only reason to put the
public at risk by increasing parking spaces, would I suggest be
either the ability to increase revenue or appease Members.
The removing of financial incentives would eliminate
many such issues.
4. (a) I refer the reader to part three
above.
I see many regimes having defects that
I believe could not stand the acid test of a Court of Law.
In recent weeks, I was asked to review
Leeds on behalf of the BBC.
The authority informed the Department
for Transport that their regime was 94% correct.
The Government Officers in turn advised
Leeds City Council not to enforce those areas that were defective.
Whilst I was in the process of undertaking
the examination, I found that the majority of the regime was defective.
In my opinion, it was more likely that the defects were 94% and
only 6% was correct, I found little if nothing that met the fundamental
signing requirements for enforcement to take place.
Signing provided by the authority was
neither prescribed nor authorized. Parking bays were missing,
defectively marked and/or incomplete, lines were non-prescribed,
defective zonal signing plates were employed.
These matters were raised with the
Wardens on the day, I was advised they had instructions to enforce
regardless of their own views.
A motorist I advised to challenge the
system where bay and line markings were missing was instructed
to pay up when he made approaches to the authority.
I believe enforcement is still taking
place within flawed areas.
I am providing advice to a motorist
on an excess charge issued for parking on a non-prescribed single
yellow line, no upright plate is present, the line is not terminated.
Whilst the highway authority insists this was in a zonal system,
I am advised that no parking zone has been imposed on the relevant
road.
A consequence of this stance being
that the only recourse open to the member of the public, is to
take this matter to the Local Government Ombudsman.
I am becoming firmly of the view that
the drive forming the basis of many if not all regimes is to bolster
coffers rather than to provide a safe and manageable environment
for the community or the public visiting the area.
5. (a) The local authority should ensure
that road safety and the free passage of traffic is the primary
basis of any restriction.
(b) The local authority should ensure that
the parking regimes do not adversely impact upon the community,
allow for the maximisation of local services, encouraging growth
and the wellbeing of the residents of the area.
(c) The local authority should encourage
a relevant turn around when managing the parking, to benefit and
maximise the use of the facilities.
(d) As with the Police and a criminal system,
enforcement should be the last, not the first resort.
6. 1. The current parking policy is encouraging
cash before care systems, with the generation of income creating
internal rewards.
2. Public perception is one of a lowering
of standards and increase in penalty.
3. The latter part of the question leads
to a question in return, given the status of parking regimes I
am finding in this country, why is it always assumed that a vehicle
is parked illegally? Is that not an assumption that the highway
authority is always right?
I believe that more often than is acceptable,
it is the regime that is unlawful but the motorist who is blamed
and punished.
There is no moral offence, no spirit to the
law, just a simple matter of right or wrong. If the regime is
proven wrong, why is enforcement lauded still being right?
7. Correctly applied, parking regimes can:
a. Free the commercial hubs of communities
to encourage growth.
b. Ensure the safety of the public at core/strategic
times.
c. Maximise the free movement of traffic.
d. Provide a vibrant resource rather than
a cold sterile environment that is to be avoided.
8. The primary issue would seem to be one of
fairness and justice.
Without a transparent system in which clearly
applied and necessary restrictions are fairly administered, then
the public will continue to distrust what is perceived to be encroachment
of their liberty for the sole purpose of providing extra cash.
A return to a measured, balanced and independent
enforcement process would remove the haunting belief the specter
in uniform is merely a collector of a locally administered stealth
tax.
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