Author Topic: Use of CCTV slammed by adjudicator  (Read 2472 times)

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Offline Ewan Hoosami

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Use of CCTV slammed by adjudicator
« on: 11 April, 2015, 09:24:19 AM »
Parking weasels up and down the country are pretending to be completely baffled as to why central government have stepped in and outlawed their lucrative ca$h cow. Spokesweasels from the BPA Ltd, the LGA and London Councils have all been protesting bitterly that they will no longer be allowed to issue stealth fines.

In a recent adjudication, the Council's argument was absolutely ripped to shreds. Adjudicators generally give a basic outline to their reasoning without going into too much detail. The following case is quite a departure from the norm in that there was, what can only be described as, a sustained and brutal assault on the Council's reasoning. "GTFO and take your fail with you", if you like. It could well be that the adjudicator was becoming tired of Council's flagrant disregard for protocol and wanted to make an example of one of them. Or, alternatively, it could simply be a case of the adjudicator not being a fan of being told that the appellant's submissions were none of the adjudicator's business. Either way, Here's one you'll like,

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Case Reference:   2140513070
Appellant:   Mr Alan Roger Deluce
Authority:   Sutton
VRM:   H15GDD
PCN:   SU78580395
Contravention Date:   18 Oct 2014
Contravention Time:   15:54
Contravention Location:   Browning Avenue Worcester Park
Penalty Amount:   £110.00
Contravention:   Footway parking (one - four wheels on footway)
Decision Date:   13 Feb 2015
Adjudicator:   Edward Houghton
Appeal Decision:   Allowed
Direction:   cancel the Penalty Charge Notice and the Notice to Owner.
Reasons:   The CCTV evidence shows clearly enough the vehicle parked partially on what is a length of footway which has been lowered to facilitate vehicular access to adjoining premises. However a lowered footway does not become a part of the carriageway (as no public right of passage by vehicles is thereby created).  Parking a vehicle other than on the carriageway is unlawful throughout London (save at those locations where the Local Authority has exercised its powers to permit it and signed the exemption accordingly). The prohibition is imposed by statute (s15 Greater London Council (General Powers) Act 1974 as amended, and no signs are therefore required. As in many other areas of activity motorists are presumed to know the law, and are bound by it whether they are aware of it or not.  It is referred to in the Highway Code with which all motorists should be familiar. It is irrelevant in law that no actual obstruction was caused to pedestrians, who are in any event legally entitled to access to the entire footway, not merely that part of it which a motorist may consider sufficient for their needs. It is never a defence to footway parking to say that had the vehicle been parked entirely on the carriageway danger or obstruction might have been caused. If this is the case at a particular location the vehicle must simply be parked safely elsewhere. The vehicle was clearly in contravention, although the Appellant did not appreciate it at the time.
During the hearing the issue was raised as to the propriety of the enforcement of the contravention by means of a camera vehicle (an "approved device" i.e. a device approved by the Secretary of State). I adjourned the case to give the Council the opportunity to demonstrate that it had had regard to the Secretary of State's guidance and I have considered its response with care.
One issue in that response needs to be dealt with at the outset. The Council submits that "The Appellant's argument that the council has or has not considered matters to which it "must have regard" are not the concern of the Parking and Traffic Appeals Service in relation to applying the law to a given set of facts". This is not so.  An Adjudicator can consider where a ground of appeal relied on by an Appellant is established; and one of the grounds is that of procedural impropriety.  This is defined in Regulation 4(5) The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 as
"a failure by the enforcement authority to observe any requirement imposed on it by the 2004 Act, by the General Regulations or by these Regulations in relation to the imposition or recovery of a penalty charge or other sum…
S87 Traffic Management Act 2004 provides:-
87 Guidance to local authorities.
(1)The appropriate national authority may publish guidance to local authorities about any matter relating to their functions in connection with the civil enforcement of traffic contraventions. .
(2)In exercising those functions a local authority must have regard to any such guidance

A failure by the Council to have regard to the guidance would be a failure to follow a requirement imposed on it by s87 and hence a procedural impropriety.  This is something which, once raised, an Adjudicator is not only empowered to consider, but is required to consider.
The Council's duty is to "have regard to" the guidance. I accept that this does not mean exactly  "must comply with" the guidance, which is not a statute. Nevertheless case law in other cases where statutory guidance has been issued is authority for the proposition that where there is a duty to have regard to guidance the guidance should be normally be followed, at least substantially, unless there is some good reason for departing from it: See R (on the application of X) v London Borough of Tower Hamlets [2013] EWHC 480 (Admin) and R (Munjaz) v Mersey Care NHS Trust [2006] 2AC 148.
The relevant parts of the guidance are as follows:-
Para 48.

The Secretary of State recommends that approved devices are used only where
enforcement is difficult or sensitive and CEO enforcement is not practical.


Para 50.

The primary objective of any camera enforcement system is to ensure the
safe and efficient operation of the road network by deterring motorists from
breaking road traffic restrictions and detecting those that do. To do this, the
system needs to be well publicised and indicated with lawful traffic signs.

So far as Par 48 goes the Council states that the road in question "is not a road that is incorporated in the beat for Civil Enforcement Officers to patrol on foot and is therefore patrolled by a mobile unit". No doubt his is true. However this amounts to no more than a statement that the location is not in fact patrolled on foot. It provides no explanation why a foot patrol is not practical, or why if it is practical, that should not take place. Nor is there any suggestion that the location is one where enforcement is difficult or sensitive. It appears to be a normal type of suburban road. Certainly this is not one of those cases where the nature of the contravention itself might suggest why camera enforcement is required, such as red routes or bus stops, where the contravention is one of merely stopping and where the contravention might well be so brief as to make the issue of a roadside PCN impractical in many cases.
In the case of Para 50 I accept the Council's evidence that the use of cameras was well publicised in the local press and that this satisfies the requirement to that effect in the guidance. However the guidance requires not only that the use of approved devices be well publicised but that it also be indicated with lawful traffic signs (no doubt because publicity in the local press would not normally be seen from drivers outside the area). The Council states, and again I of course accept, that the vehicle in question is marked as described with the words CCTV enforcement and images of a camera. I have no doubt that no motorist looking at it could fail to know what it was. However I have some difficulty in accepting that images on the device itself are what is meant in the guidance by a "lawful traffic sign" One   purpose of the requirement is as expressly stated, to provide deterrence; and it seems to me that the guidance refers to fixed traffic signs of the conventional type which give the motorist advance notice, at least that there are cameras about in the area if not at each individual location. If I am wrong about this, that it is the case that signage on the device itself will do, and that the vehicle may be treated, as it were, as a mobile traffic sign, one would expect some evidence of the numbers and/or frequency of patrols to demonstrate that the regular cruising of the vehicle around the area amounted to the equivalent of a number of fixed signs. The only evidence in the present case is that the enforcement vehicle arrived after the Appellant had already parked.
On the evidence provided by the Council I am not satisfied it has complied substantially with Paras 48 and 50 of the guidance. There is no evidence before me ( as has on occasion been provided by enforcement authorities in other cases) of Council minutes, briefing papers etc. showing the Council applying its mind to the guidance and setting out why it cannot or should not follow it. One is left with the impression from some parts of  the Council's response that because the recommendations of the guidance are not in statute or regulation the Council is simply free not to follow them.  It is not quite so straightforward. A requirement to have regard to something is not met by disregarding it.
On the evidence I am unable to be satisfied that in issuing a PCN by means of an approved device the Council has in this case complied with its statutory duty to have regard to the Secretary of State's guidance and the Appeal is therefore allowed on the basis of that procedural impropriety.
For the avoidance of doubt I feel I should make it clear that this decision, taken as it is on the evidence provided in this particular case, does not automatically mean that that all the Council's mobile camera enforcement is unlawful. It is conceivable that further and more detailed evidence would enable the Council to demonstrate that due regard had been had. That however must remain for any future case where the issue arises for decision.





No children were killed or injured outside schools during the posting of this thread.
Appealing to the council is like playing chess with a pigeon. You might be a chess grand master but the pigeon will always knock all the pieces over, shit on the board and then strut around triumphantly.

EDW2000

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Re: Use of CCTV slammed by adjudicator
« Reply #1 on: 11 April, 2015, 05:04:12 PM »
Houghton was given a lesson in the need to follow guidance in Miller v TFL 214015350A



"14. The Appellants referred us to two cases on the status of statutory guidance: R (on the application of X) v London Borough of Tower Hamlets [2013] EWHC 480 (Admin) and  R (Munjaz) v Mersey Care NHS Trust [2006] 2AC 148. Neither case was concerned with the statutory guidance in the cases before us. In the Tower Hamlets case, the Court was concerned with guidance relating to the Council’s arrangements for foster parents and in Munjaz with guidance relating to mental health patients. In the light of these decisions it is clear that although the Guidance does not have the force of legislation it should normally be followed unless there is a cogent reason why not."


 



 


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