JOINT REPORT OF THE PARKING ADJUDICATORS FOR ENGLAND AND WALES 2009/10 21 September 2010
extracts relating to CCTV parking enforcement
http://www.manchester.gov.uk/egov_downloads/200910_Parking_Report_to_the_Joint_Committee.pdf (http://www.manchester.gov.uk/egov_downloads/200910_Parking_Report_to_the_Joint_Committee.pdf)
Camera enforcement of Parking Contraventions and Parking Penalty Charge Notices sent by Post
Introduction
When The Traffic Management Act 2004 and its associated regulations came into force on 31 March 2008, councils became empowered in certain circumstances to send Penalty Charge Notices (PCNs) by post.
Regulation 10 of the Civil Enforcement of Parking Contraventions (England) General Regulations 2007 and Regulation 6 of the Civil Enforcement of Parking Contraventions (Penalty Charge Notices, Enforcement and Adjudication)(Wales) Regulations 2008 both provide that:
An enforcement authority may serve a penalty charge notice by post [where] -
1. on the basis of a record produced by an approved device, the authority has reason to believe that a penalty charge is payable with respect to a vehicle which is stationary in a civil enforcement area..."
Adjudicators have considered appeals from four English authorities (outside London) produced by an approved device, i.e. a film. Those authorities are Basildon, Bolton, Medway and Wirral. Each of these authorities has a CCTV vehicle with a camera mounted like a periscope on the top of the vehicle.
There have been no appeals from authorities in Wales based on camera enforcement; we do not believe that camera enforcement has been adopted yet in Wales and so this section refers to `Regulation 10' PCNs (being Regulation 10 the English regulations).
Appropriate enforcement and evidence
While there have been examples of PCNs being correctly issued and served under Regulation 10(1)(a) and the ensuing appeals dismissed, there are also examples of successful appeals where enforcement by camera was found to be wrong in principle, ill considered in the circumstances, or the evidence inadequate.
In some of these cases, adjudicators have criticised quite severely the approach of councils involved.
Of course it must be borne in mind that the point of the appeal process means that adjudicators only see cases where there is a perceived or actual problem.
Looking at the rate of appeal it can be seen that only a small proportion of PCNs are disputed.
Having said that, significantly more appeals against camera enforcement PCNs have succeeded than against those issued in the traditional way by fixing them to the vehicle or handing them to the driver. Furthermore, a high proportion of these appeals are not contested by the Council, and in Medway's case, this amounts to more than 70%.
While most cases turn on their particular facts, some general points emerge from the allowed appeals. Where camera enforcement is relied upon, the ideal evidence bundle will include certain key items and, if one of more of them is missing or defective, the council is likely to have difficulty establishing its case. For example:
• Film footage needs to be clear enough and of sufficient duration to prove the alleged contravention.
• There should be a statement from the named civil enforcement officer or supervisor who reviewed the film and decided to issue a PCN.
• There should be evidence (if necessary in addition to the film footage) that the carriageway markings and roadside signs are present and in order.
• Where the camera or vehicle is in question, the council should be in a position to prove that the camera is an approved device (although this is not necessary if type approval is not in dispute). (??)
• There should be evidence of signs warning the public that camera enforcement is taking place.
• The council should have and publish on their website a code of practice for camera enforcement.
• The council should be able to explain why it was appropriate to enforce by camera rather than by civil enforcement officer.
• The PCN and subsequent documents in the enforcement process must be accurate and in accordance with the Regulations.
The councils in the following appeals proved their cases successfully using CCTV evidence:
In BB05448E the appellant did not dispute having stopped in a restricted bus stop / stand as alleged; the council's evidence was in order and the appeal was dismissed. BB05491 D and BB05517F are similar.
The appellants in BB05530D, E105073K, E105111 G and BB05504D raised mitigating circumstances which were properly matters for the discretion of the council only. All these appeals were dismissed.
CCTV vehicles
Most of the appeals decided so far relate to mobile CCTV cameras although fixed devices may also be permitted (WL05300B being an example of an appeal from a fixed site CCTV camera). Either way, the camera must be an "approved device" in accordance with the Civil Enforcement of Parking Contraventions (Approved Devices) (England) Order 2007.
Bournemouth and Basildon have similar CCTV cars that recognise the relevant parking restriction by virtue of references to the TRO-mapped provisions reflected on an OS base map with the grid references. Therefore the technology within the vehicle recognises the restriction and identifies vehicles parked in apparent contravention and films the VRM.
The workings of this type of CCTV car system were explained in BB05476L:
"...the PCN was issued by post as the alleged contravention was identified through use of an unattended mobile camera operated on the Council's Automatic Number Plate Recognition Vehicle known as RoadFLOW....
The Council has explained the operation of the mobile camera and has produced the Standard Operating Procedures for the RoadFLOW system together with a copy of the approval of the device by the Secretary of State dated 9 June 2009.
Unlike where a PCN is issued to a vehicle or driver by a Civil Enforcement Officer (CEO), the RoadFLOW camera automatically records vehicles while the camera vehicle is following a prescribed route with no consideration by a human mind whether a penalty charge is payable in relation to a stationary vehicle.
It is not until the video evidence is reviewed by a "Civil Enforcement Officer Supervisor" that the Council can have reason to believe that a penalty charge is payable with respect to a vehicle which is stationary in a civil enforcement area."
However, the road markings or signs may not accurately or adequately reflect the terms of the TRO shown by reference to the grid. In El 05065M the loading restriction kerb markings had faded and were not apparent to the appellants who had parked displaying a Blue Badge. It transpired that the County Council repainted the defective kerb markings sometime after the event, and the adjudicator found that although the CCTV car had recognised that there should be a loading restriction at that point, it was not properly signed.
The Medway CCTV car operates a different way. The car is manned by an operator in addition to the driver and the occupants decide to film vehicles they spot parked in contravention. This has given rise to considerable criticism from the citizens of Medway as well from adjudicators in some cases.
One of the principle difficulties is that the driver of the CCTV vehicle parks is for anything up to five minutes while the operator points the camera at the offending vehicle. Appellants have questioned why the council CCTV car can park for five minutes on a double yellow line while they are having penalties imposed on them for the same practice. Adjudicators have noticed that in some of the correspondence the council has claimed that the TMA provides an exemption from parking restrictions for a CCTV vehicle. This is not the case - there are no provisions in the TMA or any of its regulations that create exemptions to parking restrictions in TROs for vehicles engaged in camera enforcement.
Cameras and enforcement policy
The Department for Transport' s Operational Guidance to Local Authorities: Parking Policy and Enforcement recognises that camera enforcement is different from enforcement by civil enforcement officers on foot. Paragraph 8.78 states that:
"Motorists may regard enforcement by cameras as over-zealous and authorities should use them sparingly. The Secretary of State recommends that authorities put up signs to tell drivers that they are using cameras to detect contraventions.
Signs must comply with TSRGD or have special authorisation from DfT .
The Secretary of State recommends that approved devices are used only where enforcement is difficult or sensitive and CEO enforcement is not practical. Approved devices should not be used where permits or exemptions (such as resident permits or Blue Badges) not visible to the equipment may apply".
Motorists may be unaware that their vehicles are being photographed and challenge the penalty because they do not understand or recall how it came to be incurred.
The time delay between the alleged contravention and receipt of the regulation 10 PCN may mean that evidence supporting the motorist's right to park may no longer be at hand.
Councils should be aware of these factors in deciding when and where to use camera evidence and should formulate proper policy, as the operational Guidance advises (paragraph 8.82).
"An essential and integral part of any system is a code of practice.
This sets out the objectives of the system and the rules it will follow. Authorities should ensure that they produce (or adopt) and follow a code of practice. The code should make sure that staff deal properly with issues such as privacy, integrity and fairness. It should set minimum standards to help ensure public confidence in the scheme."
In MW06157C the council produced its code of conduct but the chief adjudicator found it to be inadequate, not least because the PCN was issued for stopping for a mere 46 seconds so that the driver and passenger could change places. This was, she found, de minimis and did not amount to a contravention. She said:
"The Council has produced in its evidence a full copy of its own Code of Practice for CCTV enforcement. I can find nothing in that lengthy document dealing with integrity or fairness. Had those important principles been addressed then the Council might have stopped to consider whether it was fair to impose a penalty upon [the appellant]".
Adjudicators have observed that a PCN should not be issued by post using video evidence if it could perfectly easily have been issued and served in the usual way under Regulation 9. The appeal in MW06166D was allowed for other reasons (below), but the adjudicator commented that:
"I cannot understand why the Council considered it appropriate to use the CCTV car to detect this so-called contravention. There is no reason why the civil enforcement officer could not have got out of the CCTV car and walked over to [the] car and placed a PCN on the windscreen."
The adjudicator may require the council to explain why camera enforcement and the issue of a PCN by post were considered appropriate in the circumstances. In MW06082F the appellant parked a commercial vehicle, clearly marked as such, outside the company's own premises. He said he was entitled to park because he was loading at the time but was unable to produce independent evidence. The adjudicator criticised the council for using the CCTV car in these circumstances and said:
"It appears the Council's CCTV car was itself hovering around the ... car for five minutes and did not film any activity. It is not clear why the civil enforcement officer did not get out of the car and attach a penalty charge notice to the ... car in the usual manner.
Had that happened [the appellant] would have been put on immediate notice of the alleged contravention and would have had evidence of the unloading to hand. However, because the Council chose to send the PCN by post eleven days later I am not surprised that [the appellant] no longer had any evidence to provide to the Council or with his appeal. ...
Given that the [appellant] has been prejudiced by the Council taking the curious decision to issue a postal PCN for a breach of a restriction that carries the loading/unloading exemption I accept [the appellant's] evidence that the vehicle was engaged in that activity and therefore no contravention occurred."
In MW06159J the council failed to explain why the PCN could not have been issued by a civil enforcement officer. The adjudicator said:
“If it is intended to rely on CCTV evidence, then the rules really must be followed by this Council and evidence given in the form of a proper witness statement in order to try and support the contention that a CEO could not be deployed in Best Street on one of the very limited grounds specified."
In BB05476L the film was very dark and unclear and there was no statement from the civil enforcement officer who reviewed the video. In WL05219F the evidence included a statement from the civil enforcement officer who reviewed the film and decided to issue the PCN but it did not give his name; further, the council officer who attended the hearing was unable to confirm the contents of the council's policy for camera enforcement.