Depressingly Familiar

A friend emails me, mighty angry, as follows:-

The Telegraph reports that the Government's drugs adviser has been fired.

Why?

Not for being wrong.
Not for betraying scientific principles and methodology.
Not for fiddling his expenses and flipping his residence.
Not for being cynical shifty and self-serving in an attempt to stave off a tabloid assault.

Why then?

For telling the Government what it does not want to hear; arguments to which successive governments have stopped their ears while crying out "La-La-La" ever since James Callaghan binned the Wootton report without, apparently, troubling to read it.

The War on Drugs as as currently waged has about as much hope of a successful outcome as the one in Afghanistan. It has almost certainly cost more and killed more people too.

Here is The Guardian's View.

Another MSM Mention

We get a mention in today's 'Times' in the Times 2 section.

One or two posters on the MA's private forum became a little cross (and in some cases rather pompous) at my picking up the early-release story there, but the Governor concerned was speaking openly and I feel no shame whatever at having brought an important issue into the public arena.

Courts are open to the public, and the workings of the justice system should to be too.

When Pusher Comes To Shove

I have heard of criminals straining to avoid detection, but this bloke seems to have gone to the other extreme, by refusing to strain when requested.
In police argot, a confession is often known as a 'cough'. Our man wouldn't have dared.

Where Do We Go From Here?

We seem to be in the Phoney War phase of the economic crisis at the moment. With an election due next Spring at the latest most politicians are reluctant to draw our attention to the truly enormous hole in our public finances, and to the sacrifices that will be required to put matters right. I am no economist, but if you read around a bit you will find that even serious academics are running out of superlatives to describe the problems ahead. The truth is that nobody knows the real figures, but we do know that there will be a cut in the standard of living of most people, and that those people do not yet realise this.
I may be no economist, but I know a bit about the finances of the criminal justice system, and I also know a bit about politics; it is inescapable that the system will have to make savings on a massive and yet undreamt-of scale. We all have our little grumbles at the current niggling cuts in staff here and legal aid there, buildings left without maintenance, back-office functions moved to remote places, and the rest of it. But all of this will come nowhere near the required savings in a world in which justice will have to compete for funds with health, defence, pensions (above all, pensions) and all of the other services that the public now see as an entitlement without necessarily being willing to shell out for them. As someone recently said, if you offer people a choice between a new courthouse and keeping the Post Office open I don't think that many would vote for the court. We will have, in the old cliché, to think the unthinkable.
The justice budget is huge, encompassing as it does police, courts, prisons, probation, legal aid, the panoply of family courts and services for children, and much more. So where do we start? There won't be a lot of enthusiasm for big cutbacks in the police at a time when the terrorist threat has not gone away and a real depression could lead to public disorder. There are no votes in prisons, but there will be an outcry if some are closed and the inmates sent home. Probation is expensive, but cheaper than prison. We are always hearing about 'tough' community penalties, although many of us remain sceptical. Making them tough will cost money. Legal Aid is being squeezed all the time. As it is most people are not eligible, and leaving people to face the resources of the state and the skills of a barrister all on their own will cause serious injustice. But is that injustice more or less serious than cutting back on services for the elderly?
What about the courts? Small ones will be closed and sold off. Big court complexes offer economies of scale with services such as security, and it is easier to shift work between courtrooms to ensure maximum utilisation of expensive resources. But new complexes have to be built - they will cost money and will take at least five years to get going. Efforts will be made to push Crown Court work down the scale to magistrates' courts because the lower courts are far, far cheaper to run. More out of court disposals? Looks like a done deal, despite misgivings from magistrates lawyers and police. Are JPs cost effective? We don't get paid, as opposed to District Judges on about £100k a year, but we do need training travel and subsistence to be paid for. I suspect that the answer is that we are value for money, but perhaps not as cheap as we think.
Well what would you do? There are a lot of experienced people who comment on this blog and a lot of people in authority who read it. We know that maybe 20-25% needs to come off our budget. There are no right or wrong answers; this is about politics in the real world after 2010, whoever wins the election.

Nodding Acquaintances

Lord Judge, the Lord Chief Justice, has a deserved reputation for a powerful intellect that is combined with earthy common sense. Nobody who has heard him speak, as I have, could possibly believe in the myth of dozy and out of touch senior judges. He has now spoken of the real and increasing danger of juries being unable to absorb information in the form in which it is currently put before them. I think that he is right, and that a similar danger faces magistrates who deal with 95% of all criminal cases.
In a trial it is not unusual for one witness to be in the box for an hour or two. As chairman I always keep a close eye on the witness and try to allow a five minute break for a cup of tea after perhaps an hour or so. If the witness is old, or young, or otherwise liable to become tired I may break more often than that. There is also the question of the magistrates. Listening to dense evidence from 10am to 1pm then from 2pm until 4.30pm can be surprisingly tiring and it is essential in the interests of justice that those charged with making a decision are alert. Hence, I will often call a break in the middle of a morning or afternoon, and take a lot of persuading to sit on after 4.30. The so-called graveyard shift from 2pm till 3pm is particularly tricky and magistrates (no, never me) have been known to nod off, or, as has been said, 'concentrate with their eyes closed'. The average magistrate is something like 56, so it is as well to keep an eye on your colleagues - just in case - and for them to keep an eye on you.
Lots of things conspire to deaden the wits and droop the eyelids; some advocates who may be fine lawyers have a dull and flat delivery that conjures up the delights of Morpheus. This summer the air conditioning in court was often left switched off to save money, and the resulting stuffiness led advocates bench and staff to droop. Of course a real advocate will hold everyone's attention, cajole, persuade, and soothe as only a proper brief can, but he is a sadly rare creature these days.
So following Lord Judge's timely lead we all need to think how evidence may better be presented, both for young members of the Internet generation (some of whom may be magistrates as we recruit more young people) and for those of mature years whose attention spans are shrinking.
Even I can think of many ways to improve presentation of evidence, but I can't think of any that do not cost money. So don't hold your breath. We may have to rely on black coffee and timely digs in the ribs for a few years yet.

Poppy Month?

I posted this a while ago, and in the many comments a consensus emerged that it was entirely appropriate that those presiding or working in Her Majesty's courts should wear a poppy in the period before Remembrance Day. I choose to do so.
However....Ministers are today (October 21st)wearing poppies on TV. This is ridiculous, since there are still 21 days to go before the 11th of November. My late father served in the Army from 1940 to 1945 and I knew him well enough to be sure that he would have been disgusted at this nonsensical grandstanding that has obviously been arranged by the unlovely spin doctors who have come to dominate politics.
Have some respect, chaps. Wear your poppy (and don't put the £2 you paid for it on exes) for a week before the day. Any longer says you are an insincere poser.

Sentencing Muddle

Today's 'Times' refers to this post from a few weeks ago, and in particular to one of the comments. The piece is here, and there is a leading article here.

It's True - Honestly

I read that two former solicitors have appeared before a disciplinary tribunal over allegedly misusing clients' money - the number one no-no in the solicitors' book.

One of them is called Stephen Swindle.

Are Rights Wrong?

I am occasionally subjected to a pub rant from one or more of my pals about the iniquities of the government, or whatever subject has just exercised the Daily Mail, and one of the most common complaints is the dreaded Human Rights Act. There has been a sustained campaign against the Act, in which it is blamed for giving aid and comfort to terrorists and criminals, many of them foreign, and is held by some to be responsible for the rise of political correctness (usually suffixed with the expression 'gone mad'). In court, on a day to day basis, the Act has next to no effect, although every JP has had to do a full day's training on it. In an idle moment I looked up the Act and it led me to wonder just which of its rights the gloomsters would abolish:-

* the right to life
* freedom from torture and degrading treatment
* freedom from slavery and forced labour
* the right to liberty
* the right to a fair trial
* the right not to be punished for something that wasn't a crime when you did it
* the right to respect for private and family life
* freedom of thought, conscience and religion, and freedom to express your beliefs
* freedom of expression
* freedom of assembly and association
* the right to marry and to start a family
* the right not to be discriminated against in respect of these rights and freedoms
* the right to peaceful enjoyment of your property
* the right to an education
* the right to participate in free elections
* the right not to be subjected to the death penalty

There's nothing there that I can object to. Any suggestions?

A Bit Odd

The Daily Mail reports the acquittal of a driver who seems to have advanced the defence that he was only using his mobile phone as a dictating machine rather than to make a call. I sat on a Crown Court appeal of a similar case last year and we were persuaded that 'using' a mobile is not just confined to making calls or sending texts; looking up numbers in the memory was also 'using' as would be recording a message. Any of the lawyers out there have a view?

(Usual caveat about the story - it was the Daily Mail so all may not be as it seems)

Spot On

I had previously missed this quote from a Parliamentary committee:-

“Telling a victim that their views are central to the criminal justice system, or that the prosecutor is their champion, is a damaging misrepresentation of reality. Expectations have been raised that will inevitably be disappointed. Furthermore, the criminal justice system is set up to represent the public rather than individuals and there are good reasons for this. The CPS’s role as an independent arbiter of decisions about prosecution is critical. Explaining this role clearly to victims such that their expectations are managed realistically, rather than raised then disappointed, is vital”.

H&R Solicitors, who quote it on their website, say that they welcome this insight. They go on to say:

"A great deal of unnecessary human misery is caused by over-zealous prosecutors. We need a prosecution service which is dedicated to truth and justice, not to scoring political points or winning votes for politicians".

I agree. The CPS culture is gradually changing, and its independence is not always apparent these days. Prosecutors are now based in police stations, so inevitably they come to see themselves as a part of the police team, which they were never meant to be. The other day, when fixing a trial date the Prosecutor made vigorous efforts to persuade us not to warn a couple of PCs that they would be required on the grounds that it might mess up their rotas. I had to say that the court's sole concern was with justice rather than police operational matters and that if the defence wanted the officers to give evidence that is the way it would be. Article 6 of the HRA enshrines the right to a fair trial, not one that is convenient to the authorities.

Day Out

There's going to be an Open Day at Harrow Crown Court (Hailsham Drive, Harrow HA1 4TU) on Saturday 24th October from 10 am to 4 pm. All the fun of the judicial fair is on offer, including mock court hearings, visits to the cells and prison vans, children's drawing competition, fingerprinting, electronic tagging, video link demo, police cars, police dogs, try on a judge's wig (!) experience being on a jury, as well as displays from CAB, Prisoners' friends and family group, probation, CPS, magistrates, trading standards, Mental Health Commission, Legal Services Commission, and more. You might even get to speak to a real judge, without the inconvenience of getting arrested first.

It sounds good - I might even get along there myself.

Priorities

The following proposition is due to be debated at this year's AGM of the Magistrates' Association:-

This Annual General Meeting believes that the work Magistrates undertake should be recognised more widely as a valuable contribution to the justice system in England and Wales and calls upon the Association to establish an Honours and Recognition Group to highlight this.

So as summary justice is given to the police and the dog catcher to administer, courts are to be closed, Legal Aid squeezed almost out of existence, and local justice abandoned, the best the MA can manage is a bit of mutual backslapping and a request for a few gongs to be dished out. We'll probably get them too, rather as explorers handed out trinkets to keep the natives quiet while the visitors worked out what was worth plundering.

Fraud Guidelines

The Sentencing Guidelines Council has just issued definitive guidelines for fraud, an offence that covers a wide range of culpability, from a small-time benefits cheat up to Bernie Madoff and his ilk. It's a big document, and all that a magistrate needs to know is how to handle the lesser offences, and the point at which to send it upstairs to Hizonner and a jury.

Legal Costs - Another Click of the Ratchet

Thanks to CrimeLine for pointing me to this statutory instrument giving the Lord Chancellor power to cap central funds costs. CrimeLine expects that costs awarded out of central funds will be capped at Legal Aid rates, which are way below solicitors' private client fees.
If I read this aright, someone who is tried and acquitted, having instructed solicitors and possibly Counsel privately, is likely to be left with a large bill for their fees, that he has no hope of recovering, despite his being innocent of the offence. The CPS, on the other hand cannot lose, and may see this as an opportunity to bully guilty pleas out of people who might have a defence but who cannot afford to run it.

Here We Go......

Following the summer lull in Government and political activity the Whitehall machine is starting to lumber back into action. Peter Hargreaves points to this announcement which is the beginning of a process of closing and consolidating courthouses. There is a powerful resonance with Dr.Beeching's hatchet job on the railways a generation and more ago. London's courts are managed in a unique way, being hitherto based on the Borough structure, but I think that is a certain goner; there will be fewer and larger courts in the future. That will of course have a big effect on the structure of benches, because there are bound to be mergers. Bigger means more impersonal with management being remote. As it is, my Justices' Clerk has something like a thousand JPs under his wing, so he is a relative stranger to most. I also expect to see a lot of effort being put into videolink cases, which will be a cheap and not very cheerful way of getting more cases through. From my experience of prison videolink hearings I am convinced that a court simply cannot make a proper judgment of evidence and of people without having them before you in the flesh. We shall return to the subject as matters progress. It's going to be messy, I'm afraid.

Key Advice

I have just remanded a young man in his mid teens who had 47 previous convictions.
He and his mates broke into a house and stole the keys to a VR32, which is, I am told, a desirable top-of-the-range Golf. They then drove off, pausing only to fill up with petrol, which they didn't bother to pay for. They didn't bother about the high quality CCTV cameras either, so it was easy for the police to nip round to his house and pick him up. He pleaded not guilty, of course, because for a youth there is not a lot of downside to taking things to a trial. A friend of mine was burgled last year for the keys to his son's Subaru, another favourite with young car thieves. He told the police that they would take the keys to bed in future and they told him on no account to do so, since some burglars would think nothing of threatening or even assaulting someone to force them to hand over the keys.
It's the Law of Unintended Consequences again; modern cars are pretty much impossible to steal unless you have the keys or a recovery truck, so that's the way the ever resourceful criminal will go.

Quick Question

I wonder what proportion of the many parents who name their daughter Jade have studied English? One of the definitions in the Oxford dictionary reads:-

• noun archaic
1 a bad-tempered or disreputable woman.
2 an inferior or worn-out horse.

If You Can't Take A Joke Stay Out Of The Kitchen

I was nearly on the radio this evening. I was phoned up this afternoon while I was sweeping the leaves from my lawn and asked to take part in a current affairs show tonight. I have done quite a few of these, so I said yes. Producers prefer studio quality sound to the vagaries of the phone network so I agreed to go to a studio that is about 20 minutes' drive from my house. On arriving I discovered that momentous breaking news meant that the piece had been dropped, so home I came. In the past I have found myself leaving the house at 6 a.m., keys in hand, ready to drive to a studio, to get a call on my mobile saying that a big story has just broken, so sorry..... The main thing that broadcasting has in common with being a JP is that you get buggered about quite often, but there's no point in complaining because it's part of the deal in both cases.
I shall never forget the frisson that I felt one day as I sat in a small regional studio at 7.15 a.m., headphones clamped on, mike in front of me, ready to talk about the victim surcharge, when the producer came on: "two minutes, then you are next. By the way, it's John Humphrys". Since you ask, he was a pussycat.

Fingers Crossed

The road that runs past the the road that leads to my local pub has a bad accident record; there have been several fatalities there in recent years, one of which I witnessed, when I watched a young motorcyclist die on the grass verge despite the attentions of paramedics and a doctor. Until recently the limit on the road was 60 mph, but a few months ago a 600 yard length had a 40 mph limit imposed. Not everyone took notice, but in recent weeks a pair of high-tech signs have been installed, measuring the speed of approaching vehicles and flashing up a speed warning when appropriate.
If this works, it has to be a better solution to the speeding problem than cameras. If it does not, then the Mr.Toads will have no excuse to whinge about nasty gadgets that interfere with their 'right' to drive as fast as they like, where and when they like.
Let us see.

Risky

Following the encouraging response to my poetry thread, here's another question:-

How come there are next to no seriously good works of art in the fields of, for example:-

Painting,
Sculpture,
Music,
Poetry,
Architecture,
Drama,

that have been created by women?

I accept that some women seem to have got the hang of the novel, and much pleasure have they given me. But otherwise, they are all second-raters, aren't they?

For Heaven's Sake! (Way Way Off-Topic)

Some poll or other has produced this list of our favourite poets:-

T.S. Eliot, John Donne, Benjamin Zephaniah, Wilfred Owen, Philip Larkin, William Blake, William Butler Yeats, John Betjeman, John Keats and Dylan Thomas.

T.S.Bleedin' Eliot? Impenetrable,exotic, esoteric, academic, he may be the choice of an intellectual minority, but national favourite? Never in a million years. John Donne, now there's a truly great poet whose works are on a bookshelf in this room. Benjamin Zephaniah is by all accounts a decent enough chap but he doesn't come within a country mile of Donne. Owen is accessible and moving, Betjeman a lightweight, more vaudeville than serious poet. Keats, along with the other romantics, eased my teenage years (but he knew bugger-all about wine; 'beaded bubbles winking at the brim' and a 'purple-stained mouth' suggest that he needed to try a new off-licence.

As I go about my business tomorrow I shall ask a few random people if they can name a single Eliot poem, and if they can, to quote me a line of it. And if anyone comes up with 'Cats', a self-indulgent piece of tosh patronisingly tossed off by a bored old academic, I may not be responsible for my actions.

Mind you, many of the greats could falter. Even Wordsworth perpetrated this:-

SPADE! with which Wilkinson hath tilled his lands,

Harrumph!

The Arthur Daley Principle

I have blogged on numerous occasions about the rapid growth in asset confiscation, mostly under the Proceeds of Crime Act, known as POCA in the trade. It's a complex issue, and one about which I have mixed feelings. Of course we all remember that the Feds could never touch Al Capone for racketeering, but finally nailed him for tax evasion. No one could seriously dispute the justice of confiscating the cash in a drug dealer's attic, or the Essex hacienda with £150,000 worth of wheels behind the electric gates, whose owner has never declared more than £35,000 a year income. Rough justice, but justice it is, I think.
My misgivings arise, as so often, with the mission creep that has characterised this Government's approach to the justice system. The amount of cash that has to be justified to avoid its seizure has steadily dropped until it now stands at just £1000. As I wrote a few weeks ago, small-fry immigrant workers who have slogged their guts out have had their wages seized at the airport because of a visa irregularity, the final insult being that they have already paid tax and insurance on the cash. The court proceedings are civil ones, which lowers the standard of proof and also means that legal aid is not available. My real bottom line on the Bench is of course the law, but not far behind that is the question "Is this fair?" A man from one of the Whatever-Stans who speaks basic English and doesn't really know what's going on is no match for a barrister instructed by Police or Customs. That's not fair.
But there's more. This piece in The Times refers to the now-usual practice of divvying up the seized cash between the investigating agency, the courts' service and the Treasury. That's wrong (and yes I know it happens with speed cameras too). While there is not the slightest financially driven pressure on the bench, it is still improper to treat the cash this way. Seized funds should be paid to the Consolidated Fund (HM's Big Piggy Bank) and the agencies be allocated enough cash to do their job and no more. To do otherwise will skew priorities, harm justice, and eventually lead to corruption. I expect her Majesty's Government to operate under a higher set of principles than those of Arthur Daley.

Back to School Lads

The Daily Mail, in a piece attacking Tony and Cherie Blair, who just might become President and First Lady of Europe says, under two Photoshopped pictures of the Blairs in appropriate costume,

With Tony Blair's bid for presidency he has been likened to Napoleon, with Cherie as his Antoinette

Er - doesn't the Mail have a single staffer with so much as a Grade C GCSE in History? Napoleon was a revolutionary who made himself Emperor. Marie Antoinette was not his wife, but an aristocrat who married Louis Seize and was guillotined for it in 1793.

Knee-Jerk

Some months ago I said:

Anyone who saw tonight's documentary about Holloway will understand the awesome power of the tabloids - a single rant about a Halloween 'party' in the prison prompted Straw to intervene and forbid any more events like it. The prison's staff had to spend the best part of a day away from their real jobs in a damage-limitation exercise.

Libby Purves returns to the subject in The Times. The whole issue just confirms how malign the influence of the sensationalist press can be.

Decision Time

You are on the bench on a wet Tuesday in November. Traffic was bad, and somebody has nicked the last chocolate biscuit from the tin.
It's a trial. A woman in her fifties has been charged with failing to stop and report an accident. Apparently she hit a parked car, and then left the scene after calling her name out, saying 'you know where to find me'. She obviously did stop as she left the scene on foot, so the issue is whether or not she gave her particulars to anyone who reasonably required them.
Her barrister tells you that her picture has appeared in the press and on TV on most days in the last year, so calling out her name was sufficient. Her business address is a well-known one in SW1.
So can she be guilty under S170(4) of the Road Traffic Act 1988?

(any resemblance to a current case is purely coincidental, of course)

Interesting

I see that David Cameron has given his new pals at The Sun a list of his Top Ten Pledges, one of which is to double magistrates' sentencing powers from six months imprisonment to twelve. That should please the MA, but it won't have much effect on crime, although it might take pressure off the Crown Courts, that are currently struggling with their workload in many places. A substantial proportion of the cases that JPs commit to the Crown Court end up being sentenced within the lower court's existing powers anyway.
A more urgent task, as I said the other day, is to sort out the tangle of sentencing, to stop misnaming sentences as 'life' when they are not, and to reform parole remission and early release so that a sentence means what the judge or magistrate says it does.

Welcome To The New Kid On The Judicial Block

Welcome to the newly sworn-in Justices of the Supreme Court, pinnacle of the courts' system, from a humble practitioner in the down-and dirty end of the judiciary. There are to be 12 Supreme Court Justices, each paid something north of £200,000 a year, in contrast to the 29.000-odd Justices of the Peace who don't get paid at all.
The new Justices have today taken the very same oath that my colleagues and I have taken. Good luck to them all, and I hope they have as much fun as I do. I bet they get nice biscuits.

This
just rubs it in.

Clamping And The Law: Guest Post

Our regular contributor Peter Hargreaves has taken the trouble to have a good look at the law relating to clamping, a subject that often makes me cross because of its frequent unfairness and the fact that most politicians are indifferent to the abuses that take place. Peter's piece is a long and thorough one, and well worth a read.
---------------------------------------------------------------------------------

Vehicle Immobilisation

This is a general article about the law relating to clamping of vehicles and the views expressed are mine alone. Persons affected by clamping activities are advised to seek appropriate legal advice since much will depend on the exact facts of the case.

Introduction

CLAMPING (or some other form of vehicle immobilisation) happens to the vehicles of hundreds of people each day in England and Wales. It can happen on private land as well as in public places and it is big business. Whilst parking in public places operates under a statutory regime (Traffic Management Act 2004), parking on private land is largely unregulated. Politicians would be unwise to ignore the public anger which continues to build over this issue. Although changes to the law were made by the Private Security Industry Act 2001

The law is still perceived to be unfair to the general public and to be too favourable to the clampers. The main change under the 2001 Act was the introduction of licensing of those who carry out clamping. The Automobile Association (AA) has referred to private parking enforcement being “out of control”. The government has made proposals to bring all “clampers” within a Code of Practice but the AA argues that it will not work.

It is difficult to see why government cannot bring private clamping activities under the detailed control of the law rather than relying on codes of practice. There appears to be a lack of political will to do so.

Private land “owners” often permit drivers to park when, for example, using the owner’s business premises. Provided the driver parks within the permitted terms then he will not be a trespasser and the vehicle should not be clamped. Indeed, to clamp a vehicle which is parked within the permitted terms would be a trespass (to goods).

The civil law relating to clamping was considered by the Court of Appeal (Civil Division) in Vine v London Borough of Waltham Forest.[2000] EWCA Civ 106.


In the Vine case, the earlier case of Arthur v Anker and another [1997] QB 564 is discussed.
The Vine case

The appellant in this case was Helen Vine. The respondent was a local authority (Waltham Forest). The local authority had engaged a contractor who carried out clamping activities on certain private land near to a railway station. Vine had been to a medical appointment at which she received bad news. Whilst driving home she was distressed and felt unwell. Accordingly she pulled on to the land and parked, got out of her car and went to a nearby hoarding where she vomited. She was out of the car for about 4 minutes during which time her car was clamped. There was a sign warning drivers that clamping was in operation. The sign was yellow in colour and was placed about 10 feet high on a wall. At trial the judge found as a fact that Vine had not seen the sign. It was on the basis of that finding that the Court of Appeal held that Vine had neither consented to nor voluntarily assumed the risk that her car might be clamped. The local authority was therefore liable in trespass.

The judgments suggest – but do not finally decide – that where an “ordinary and sensible person” (per May LJ) would have realised that clamping was possible then drivers would generally be taken to have the required knowledge so that clamping would not be a trespass. There would have to be adequate signage – “prominent and clearly positioned and displayed” (per May LJ). It might also be inferred from the facts of the case that those operating clamping would be well advised to have more than a single prominent sign.

Since the Vine case, clamping has become a very commonplace activity and it may well be that some very particular circumstances would be required before a court is likely to find that a driver parked without the necessary knowledge.

The Arthur case

In this case it was found that Mr Arthur parked with full knowledge of the clamping. There was adequate signage warning of the clamping. Sir Thomas Bingham MR said:

“The act of clamping the wheel of another person's car, even when that car is trespassing, is an act of trespass to that other person’s property unless it can be shown that the owner of the car has consented to, or willingly assumed, the risk of his car being clamped. To show that the car owner consented or willingly assumed the risk of his car being clamped, it has to be established that the car owner was aware of the consequences of his parking his car so that it trespassed on the land of another. That will be done by establishing that the car owner saw and understood the significance of a warning notice or notices that cars in that place without permission were liable to be clamped. Normally the presence of notices which are posted where they are bound to be seen, for example at the entrance to a private car park, which are of a type which the car driver would be bound to have read, will lead to a finding that the car driver had knowledge of and appreciated the warning.”

Earlier in the Arthur judgment, Sir Thomas Bingham Mr had said:

“I would not accept that the clamper could exact any unreasonable or exorbitant charge for releasing the car, and the court would be very slow to find implied acceptance of such a charge. The same would be true if the warning were not of clamping or towing away but of conduct by or on behalf of the land owner which would cause damage to the car. Nor may the clamper justify detention of the car after the owner has indicated willingness to comply with the condition for release: the clamper cannot justify any delay in releasing the car after the owner offers to pay and there must be means for the owner to communicate his offer. But those situations did not arise here.”

Those remarks were clearly obiter dicta but, it is submitted, would be followed by subsequent courts in view of the good sense which they clear contain.

Other legal avenues?

It is hardly surprising that aggrieved persons are seeking other legal possibilities in their attempts to curb the activities of clampers but few such avenues are at all clear in their applicability.

Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

There has been some suggestion that the Consumer Protection from Unfair Trading Regulations 2008 might offer some protection to parkers. The regulations are here

and guidance has been made available.

Any possible use of these Regulations in relation to clamping remains to be tested in the courts. The Regulations implement Directive 2005/29/EC (The Unfair Commercial Practices Directive).

The Regulations are difficult but are clearly aimed at what might be colloquially referred to as “sharp practices” between traders and consumers. Regulation 2 is a lengthy interpretation section and is mandatory reading for anyone trying to understand the regulations. A key definition is that of “commercial practice” and it will be seen from the definition that a direct connection is required between what the trader does and the “promotion, sale of supply of a product to or from consumers ….” [Note: words such as “trader”, “product”, “consumer” are also defined in Reg. 2].

Unless some act (etc) comes within the definition of “commercial practice” then you do not even get to first base with any of the possible offences created by Regulations 8. In my view, clamping activities do not related directly to products and so the clamping activity would not be a “commercial practice” within the meaning of the regulations. Even if I am wrong about this, the clamping would not be “unfair” (Reg 3) or “misleading action” (Reg 5 or “misleading omission” (Reg 6) or even “aggressive commercial practice” (Reg 7) since aggressive practice has to be directly connected with the promotion, sale or supply of a product.

Other offences?

Certainly those “companies” who engage in clamping would do well to adhere to the Companies (Trading Disclosures) Regulations 2008 , but these regulations do nothing to address the issue of individual (sole trader) clampers and many clamping activities are conducted by such individuals.

Yet another suggested angle is the Unfair Terms in Consumer Contracts Regulations 1999
, but these are clearly concerned with contractual situations – (essentially contractual terms in “standard” take it or leave it type contracts) - and, in any event, there is no contractual relationship between a clamper and the driver.

Would the Protection from Harassment Act 1997 offer any protection? There may be some situations in which it might but it is hardly likely to assist at the actual place where the car has been parked or at the time when the driver is trying to get his car released.

It has also been alleged that some clampers engage in fraud contrary to the Fraud Act 2006 – particularly section 2, and some forms of conduct might be caught by this – e.g. making a false representation that a “tow vehicle” has actually been called out and, as a result, an additional fee is required.

Of course, anyone clamping vehicles without a licence is committing an offence under the Private Security Industry Act 2001.

It has also been mentioned that clampers might be issued by the magistrates’ courts with anti-social behaviour orders. Given that only certain types of applicant are permitted (e.g. local authorities or the police) this possibility seems unlikely though it seems that Windsor is considering the idea.

The Private Security Industry Act and The Security Industry Authority
The Private Security Industry Act 2001 sets out rules for those wishing to engage in Vehicle Immobilisation (Car clamping/towing/blocking in) involving a release charge and prescribes penalties for breaches.
The act set up the Security Industry Authority .

Alleged illegal activity may be reported to the SIA via their website and it is possible to check whether any individual is licensed. Further terms for vehicle immobilisers were set out in The Private Security Industry Act 2001 (Licenses) Regulations 2007.

What needs to be done?
The balance of the law seems to be tipped against the driver and it is difficult to disagree with the Automobile Association that the latest Code of Practice planned by government is unlikely to work satisfactorily. Tighter legal regulation is required akin to that applicable to parking in public places. This would build on the existing requirement for clampers to be licensed. Fees need to be regulated and kept within reason and there should be a truly independent adjudication mechanism through which redress could be obtained in appropriate cases. Of course, many would prefer the system for England and Wales to be the same as that in Scotland where clamping of vehicles parked off-road is basically illegal.

Peter Hargreaves
September 2009.