Image by The London Motorists' Action Group
Today (23rd February) sees the launch of 'The Motorists' Manifesto on the Reform of Parking and Traffic Enforcement'  produced by the London Motorists' Action Group and the Drivers' Alliance in association with the Motorists' Legal Challenge Fund. The manifesto looks at the thorny issue of enforcement in the UK since universal civil enforcement powers were given to local authorities in 2008 . Amongst other things the new powers allow councils to use CCTV cameras to enforce parking laws and then send computer generated parking tickets by post.
The manifesto points out that parking enforcement "has become simply the enforcement of trivia in an effort to raise revenue". Modern parking offences fall under the category of "strict liability" offences namely those offences where there is no mental element or intention ("mens rea") - there is no defence and no discretion. To demonstrate the ridiculousness of such offences the manifesto recounts the case of Joan (now Baroness) Walmsley and Transport for London (TfL):
Ms. Walmsley paid the London Congestion Charge on two successive days giving the registration number of her car as W616 JBF when it was in fact W616 OJC; the letters JBF were those of her previous car. TfL insisted that she pay a penalty, so she went to the Parking and Traffic Appeals Service (PATAS) who upheld TfL on the grounds that she had technically not paid for W616 OJC and that PATAS had no power to exercise discretion. She went to the High Court where Mr. Justice Burnton concluded that PATAS did have discretion and "It is not a purpose of the Scheme to penalise those who make a genuine error as to their vehicle's registration number". TfL went to the Appeal Court who reversed the judgment – the rules are the rules are the rules.
Punishment without trial
Strict liability offences go hand in hand with punishment without trial (namely fixed penalties) and as pointed out in the Department for Transport's 'Civil Traffic Enforcement Certification of Approved Devices'  guidance document: "Civil enforcement reduces the burden of proof for contraventions from 'beyond reasonable doubt' to 'the balance of probability'". Peter Oborne points out in his book 'The Triumph of the Political Class':
This form of causal justice was introduced for a variety of offences, for instance...certain motoring offences. The resultant move to fixed penalty notices means that suspects could buy their way out of the formal process of punishment by paying the fine.
This new approach has started to mean that some kinds of offence...are effectively now subject to taxation rather than criminal punishment.
(See The Triumph of the Political Class, Peter Oborne, Simon & Shuster 2007)
Local authorities were first given powers to take over control of parking enforcement from the police under the Road Traffic Act 1991 , which made it mandatory for London boroughs and optional for other local authorities to take responsibility for enforcement of parking under the civil law. By 2005 according to the House of Commons Transport Committee  over 150 authorities had adopted these civil enforcement powers, also known as decriminalised parking enforcement (DPE).
A mountain of regulations
The Motorists' Manifesto points out that the current civil enforcement regulations are made up of "six Statutory Instruments (a total of 48 pages), the Secretary of State's Statutory Guidance (30 pages), and the Department for Transport's Operational Guidance (166 pages). The whole system of enforcement has become labyrinthine in its complexity." And the list doesn't end there - Code of Practice for Operation of CCTV Enforcement Cameras, Code of Practice on Civil Parking and Traffic Enforcement, Civil Traffic Enforcement Certification of Approved Devices, Parking factsheets and more.
The whole concept of collecting parking fines via civil enforcement and fixed penalty notices was called into question in a 2005 submission to the House of Commons Transport Committee by Neil Herron, one of the Motorists' Manifesto's author's . He pointed out that the collection of parking fines is not compatible with the 1689 Bill of Rights, Herron told the committee:
There is a provision in the Bill of Rights Act 1689 which states:
"That all grants and promises of fines and forfeitures of a particular person before conviction are illegal and void."
This states that a conviction is necessary before a fine or forfeit can be imposed. As you will be aware, the Bill of Rights is a "constitutional statute" and may not be repealed impliedly.
This objection though has been brushed aside by lawmakers who say that under the doctrine of 'implied repeal' the Road Traffic Act 1991 takes precedence because it was introduced after the Bill of Rights - despite the fact that the Bill of Rights is a "constitutional statute" . And despite the fact that regardless of legislation this provision is a fundamental tennet of a system based on justice and the rule of law.
CCTV further exacerbates lack of discretion
The use of CCTV cameras to enforce parking fines was first introduced in London under the London Local Authorities Act 2000 and motorists' groups warned then that there were problems with using surveillance cameras in this way. In December 2005 Paul Watters, Head of Roads and Transport Policy at the AA Motoring Trust told the House of Commons Transport Committee :
It seems to be actually catching people who are stopping to read a map at the moment which is a little bit unfortunate at times because I think that is a very safe thing to do perhaps, and you are legally allowed to stop to pick up and set down of course if there is no loading restriction. CCTV is quite a worry because the first a driver hears of it is the notice to owner through the letterbox, as was mentioned earlier, so you have no chance to recall the event perhaps as easily as going back to the car and having the ticket on the car. CCTV is a worry because it is very remote.
Since the nationwide rollout of CCTV parking fines similar issues have emerged with cameras not spotting blue disabled badges or issuing fines to drivers who are letting passengers out . This is hardly surprising - CCTV cameras are not intelligent or discerning, they do not exercise discretion and have no concept of justice. The Department for Transport's 2007 'Better Parking - Keeping Traffic Moving' consultation stated that: "parking enforcement is about supporting wider transport objectives, in particular road safety and keeping traffic moving, rather than raising revenue" , but last year £328 million was raised by local authorities through parking fines .
The Basildon Beast
A Basildon Council presentation leaked to the Motorists' Legal Challenge Fund reveals the capabilities and fine issuing rates of a CCTV car dubbed 'The Beast of Basildon' . The document reveals that 1,672 penalty charge notices were issued in the first 70 days after 'The Beast' was launched. The document also reveals that 'The Beast' is equipped with automatic number plate recognition technology to 'capture' car details and issue fines, GPS so it knows where it is, has the ability to film in high quality, and can operate in 'unattended mode'- logging illegally parked cars just by driving past.
With plans laid out in the National CCTV Strategy  for multi-purpose camera sharing, how long will it be before these cameras, sold to the public as 'solving parking problems', will be used to further expand the network of ANPR cameras that serve as virtual roadside checkpoints that have no place in a free country . This is the time to roll back our reliance on surveillance technology and reclaim the common law - yet more regulation is not the answer. Regulation simply legitimises the illiberal and the ineffective. Civil parking enforcement is awash with rules and regulations, none of which help the public at large.
The Motorists' Manifesto can be downloaded at http://www.no-cctv.org.uk/materials/docs/Motorists_Manifesto.pdf
-  http://www.no-cctv.org.uk/materials/docs/Motorists_Manifesto.pdf
-  http://www.opsi.gov.uk/si/si2007/uksi_20073483_en_1
-  http://www.dft.gov.uk/pgr/roads/tpm/tmaportal/tmafeatures/tmapart6/certapproveddevices.pdf
-  http://www.opsi.gov.uk/acts/acts1991/plain/ukpga_19910040_en
-  http://www.publications.parliament.uk/pa/cm200506/cmselect/cmtran/748/74802.htm
-  http://www.publications.parliament.uk/pa/cm200506/cmselect/cmtran/748/748we10.htm
-  http://www.bailii.org/ew/cases/EWHC/Admin/2002/195.html
-  http://www.publications.parliament.uk/pa/cm200506/cmselect/cmtran/748/5121401.htm
-  http://www.telegraph.co.uk/motoring/news/6968607/Motorists-hit-with-ghost-tickets.html
-  http://www.dft.gov.uk/consultations/archive/2007/betterparking/betterparking.pdf
-  http://www.taxpayersalliance.com/parkingfines.pdf
-  http://www.britishparking.co.uk/files/presentations/basildon%20council%20presentation%20.pdf
-  http://webarchive.nationalarchives.gov.uk/20100413151441/http://www.crimereduction.homeoffice.gov.uk/cctv/National%20CCTV%20Strategy%20Oct%202007.pdf
-  http://www.no-cctv.org.uk/blog/anpr_-_the_expanding_network_of_uk_checkpoints.htm