Protection of Freedoms Bill

Memorandum submitted by John Kruse (PF 05)

Protection of Freedoms Bill

Part 3, Chapter 2- wheel clamping

Author

I have specialised in civil enforcement law for the last 22 years. I have written extensively in the academic and professional press; I have published several books on the subject, most recently Law of seizure of goods (Hammicks, 2nd edition, 2009), Powers of distress (Wildy, Simmonds & Hill, 2009) and Bailiffs’ law (two volumes- A lawful trespass and Persons of no value?, Wildy, Simmonds & Hill, 2009). I work as a trainer and consultant in the field and am editor of the periodical Bailiff Studies Bulletin. The Bulletin has issued a number of reports and discussion papers over the last 6 months; I submitted a copy of a report I had prepared upon the practice of wheel-clamping on private land to the Home Office in January. [1]

Summary

The clauses of the Protection of Freedoms Bill, which propose to criminalise vehicle immobilisation, will have two unintended effects:

· They will criminalise most vehicle clamping as used by private bailiffs in the enforcement of debt; and,

· They will not necessarily end ‘cowboy’ enforcement activity as it will still be possible for enforcement against motorists to continue under the guise of levies of ‘distress damage feasant’ by the landowner.

Clamping on private land

1) General comments I will not comment at length on many aspects of these proposals as I am sure that many companies involved in this area will do so. I will limit my general observations to the following points:

• Business impact- clearly a large number of companies may cease to trade and a large number of employees may lose their employment as a result of this ban. Whilst the prevention of ‘cowboy’ clamping is highly desirable, this seems a disproportionate consequence;

• New remedies- private car parking companies are granted a specific power to claim for lost charges against the driver and the keeper of the vehicle. In truth, this is a remedy of very limited utility. I see many clients in my daily advice practice who face threats of court action for unauthorised parking. Claims seem never to be brought because the car parking firms know that the cost and inconvenience of issuing a claim for such a small sum is scarcely ever to be justified by the amounts recovered. Equally, it is not made very clear in the Bill whether the extension of the powers of removal in the Road Traffic Regulation Act will continue to apply solely to police and local authorities, or whether they may be extended to others.

• Distress damage feasant- although wheel-clamping is prohibited by the Bill, the levying of distress damage feasant is not. If it is correct to interpret "lawful authority" as including an exercise of a landowner’s right of levying distress against trespassers, it would seem that the removal and impounding of unlawfully parked vehicles will continue to be lawful. If this is correct, then companies presently operating as wheel-clampers may be able to continue to trade with the necessary changes in equipment and practice. [2]

2) Statutory remedy In light of the last paragraph, I again urge the government to consider creating a statutory remedy of seizure against trespassing chattels akin to the power to distrain stray livestock found in the Animals Act 1971. If my reading of clause 54 is correct, largely unregulated enforcement may be able to continue, with little guidance on practice, especially charges, to be derived from common law.

Clamping by private bailiffs

3) Lawful authority Clause 54(1) of the Bill prohibits clamping "without lawful authority." The explanatory notes to the Bill state that "bailiffs have a mix of statutory and common law powers to immobilise and tow away vehicles for the purposes of enforcing debts (including those arising out of unpaid taxes and court fines)." I am sorry to observe that the Home Office is mistaken as to the extent and nature of bailiffs’ powers. The Bill as it currently is written is likely to criminalise the use of clamps by many private bailiffs companies. As I have long argued that clamping by bailiffs in the enforcement of debt is unjustified and wrongful, I am not especially aggrieved by this, but I imagine many enforcement agencies will be and are likely to contact the Home Office to protest. When the Tribunals, Courts & Enforcement Act 2007 is finally brought into effect, it will endorse the use of immobilisation devices by enforcement agencies, but between the current Bill becoming law and that (constantly receding) date, clamping will become unlawful in respect of many debts. If this is the government’s intention, I wish it to be clear about its actions.

4) Common law rules Impounding of goods on the premises where they are seized (contrary to the statement in the explanatory notes) is not lawful at common law. [3] The only exception to this is levies of distress damage feasant- which remedy, as I discussed in my recent report, does not easily apply to wheel-clamping and is of no relevance at all to the enforcement of debt. [4]

5) Clamping under statute It follows, therefore, that it is only lawful for private bailiffs to immobilise debtors’ vehicles if the statute under which they act explicitly endorses the impounding of the goods in question upon the debtors’ premises. My analysis of the situation is as follows:

• impounding on the premises by means of clamps is definitely lawful only for rent arrears and county court judgments because the statute in question explicitly endorses securing the goods on the premises where they have been seized; [5] and,

• impounding on the premises by means of vehicle immobilisation is not permissible in any other cases. This will include levies for income taxes, indirect taxes, local taxes (council tax and NNDR), fines (excepting clamping orders, of course), execution for road traffic penalties and child support maintenance.

6) Conclusion I have discussed these issues at length elsewhere, but I hope that the potential problem will be clear. [6] I have no personal objection to the criminalisation of clamping for private bailiffs as many are using the procedure without lawful justification and have been for many years, but if the government is unhappy with this possibly unintended result of the Bill, it may wish to amend it.

I hope that these observations may be of some assistance in consideration of these relevant clauses of the Bill.

March 2011