Protection of Freedoms Bill

Memorandum submitted by Claire Sandbrook (PF 04)

Submission to the Protection of Freedoms Bill Committee from Claire Sandbrook, Authorised High Court Enforcement Officer and CEO of Shergroup High Court Enforcement

The Protection of Freedoms Bill - wheel clamping and enforcement agents

1. Clause 54 of the Protection of Freedoms Bill currently before Parliament states the following with regard to the immobilising of vehicles.

Offence of immobilising etc. vehicles
54 Offence of immobilising etc. vehicles

(1) A person commits an offence who, without lawful authority-

(a) immobilises a motor vehicle by the attachment to the vehicle, or a part of it, of an immobilising device, or

( b ) moves, or restricts the movement of, such a vehicle by any means,

intending to prevent or inhibit the removal of the vehicle by a person otherwise entitled to remove it.

(2) The express or implied consent (whether or not legally binding) of a person otherwise entitled to remove the vehicle to the immobilisation, movement or restriction concerned is not lawful authority for the purposes of subsection (1).

(3) Subsection (2) does not apply where-

(a) there is express or implied consent by the driver of the vehicle to restricting its movement by a fixed barrier, and

(b) the barrier was present (whether or not lowered into place or otherwise restricting movement) when the vehicle was parked.

(4) A person who is entitled to remove a vehicle cannot commit an offence under this section in relation to that vehicle.

(5) A person guilty of an offence under this section is liable-

(a) on conviction on indictment, to a fine,

(b) on summary conviction, to a fine not exceeding the statutory maximum.

(6) In this section "motor vehicle" means a mechanically propelled vehicle or a
vehicle designed or adapted for towing by a mechanically propelled vehicle.

2. This clause has, we would submit, been brought forward primarily to deal with the problem of ‘cowboy’ clampers who clamp people’s cars on private land and charge extortionate amounts to release the clamp.

3. However, it may have unintended consequences, as outlined by John Kruse in a recent comment on the LADER (Local Authority Debt Enforcement and Recovery) website.

4. Mr Kruse said as follows:

As many readers will know, this aims to ban wheel clamping on private land. I think there are a number of potential problems with the clause 54 of the Bill, which deals with clamping, but the key one is this: clause 54(1) will make it a criminal offence to clamp a car "without lawful authority." As some readers will know, I have for a long time questioned the right of enforcement agents to clamp in most cases. The Home Office states that bailiffs have "common law & statutory powers to clamp." This is mistaken. There is certainly no common law power to clamp and very few statutory provisions which could be read as endorsing the procedure. So, it appears that this Bill may have an unintended effect if it passes into law in its present form. Some of you may wish to raise this with the minister or your MP. You may also wish to note that the Coalition will be permitting public responses to this particular piece of legislation.

5. Mr. Kruse has long argued that enforcement agents do not have the power to immobilize vehicles they have seized by the application of wheel clamps to the vehicle concerned, and has written a number of articles in the past putting this view forward.

6. Needless to say, operatives within the civil enforcement industry take a contrary view, with a number of articles having been written to contradict Mr. Kruse. This position has been backed up by Professor (now Lord Justice) Beatson in his review of bailiff law, conducted in 2000, and legal opinion provided by lawyers at the then Lord Chancellor’s Department (now MoJ) in 2002.

7. The argument centres on the interpretation of whether what the enforcement agent is doing amounts to wheel clamping or not.

8. As operatives within the High Court enforcement industry, we would argue that it is not. Wheel clamping takes two forms - it is the practice of attaching a clamp to an illegally or wrongfully (i.e. without permission) parked car, with the intention of not removing it until a penalty charge for that illegal or wrongful parking plus any other costs charged have been paid; or it is the practice of applying a clamp to a car as a criminal sanction for non payment of a magistrates court fine, with the clamp being removed once the fine and any other costs incurred have been paid.

9. What we are doing is securing goods legally taken into control by enforcement agents in the pursuit of an unpaid civil court writ or warrant, thereby securing the item taken into control (which in this case just happens to be a motor vehicle) to prevent it being removed, tampered with or destroyed, thereby frustrating the enforcement of a court order. Such ‘closed possession’ is commonplace for goods seized by enforcement agents. It just so happens that in this instance, the item seized and taken into ‘closed possession’ happens to be a motor vehicle, and clearly the most effective way to stop the vehicle being moved, destroyed or tampered with is to immobilize it by way of the application of a wheel clamp.

10. There is clearly a world of difference between the situations outlined above.

11. An issue we would ask to be borne in mind is that if the immobilisation of seized vehicles in this way is made illegal, a likely consequence is that enforcement agents will feel compelled to remove vehicles to a pound prior to sale at auction on the first visit to the debtor’s premises. This will have the effect of increasing the costs associated with writ or warrant enforcement substantially – and these costs would have to be passed on to the judgment debtor.

12. We would argue that this difference has already been understood and recognized in other scenarios and regulations. For example, enforcement agents do not need to be licensed by the Security Industry Authority (SIA), the body that is currently responsible for licensing, amongst others, wheel clampers (they are also responsible for licensing door supervisors and security guards) – the SIA having recognized that what enforcement agents do in this situation is not ‘wheel clamping’ in the accepted sense of the phrase but securing goods seized in pursuit of a warrant or writ, and that therefore they do not come within the remit of the SIA for licensing purposes.

13. We would therefore ask that consideration is given by the committee to clarifying the provisions contained within clause 54 of the Bill, to ensure that what is captured by its provisions and made illegal is the wheel clamping of cars wrongfully or illegally parked on private land but not the seizing of goods taken into legal control by enforcement agents in the enforcement of court judgments.

March 2011