Wrongful Court case - any advice?

[CliveH]

My son has been dealing with a parking offence that is rather puzzling.

 

He visits his girilfriend in Brighton regularly and was a bit surprised to get a parking ticket for obstruction when he was parked off road on the verge (where everyone parks) and so he took photographs and pleaded not guilty.

 

He has now had (arrived Saturday) what is a rather threatening letter that states he must attend court in a weeks time (not enough notice - he cannot get the time off work) or a warrent will be issued for his arrest but that if he pleads guilty it all goes away.

 

The problem is the case details attached whilst quoting the correct case number and my sons details lists a car registration of a car my son has never owned and cites a parking offence in Worthing on a date my son was not in Worthing or anywhere near!

 

So what do we do? - based upon the photo evidence my son does not have a case to answer on the original "ticket" as he was parked legally, but can we just make the problem disapear seeing as how the details are totally incorrect in the Court letter?

 

Any feedback would be most welcome.

[GJH]

First thing he needs to do is to get in touch with the court ASAP on Monday to point out the incorrect details - and then follow the advice he receives.

 

Not so sure about the "parked legally" bit. Just because "everyone parks" on a verge doesn't make it legal. In fact, in many places it is not legal but is just not prosecuted most of the time.

 

You don't say what other correspondence has taken place since the original incident but I'm surprised it has actually reached a court stage with seemingly so little warning.

 

I think that perhaps your son should possibly have consulted a solicitor previously and should almost certainly do so now.

 

Graham

[CliveH]

Yes my thoughts entirely Graham.

 

It is only the w/e that has stopped us from contacting our solicitor for some advice.

 

And i take your point on the parking bit - but the point is that the ticket said obstructing the road - and he was not even on the road - the car parking area is one that is used all the time and no signs on it to say it should not be used so having taken advice on that - we have been told we have a strong case - hence his pleading not guilty.

 

The issue now is the incorrect details on this letter.

 

I am wondering if we can just get the whole thing chicked out anyway on this "technicality". Not a very satisfactory result from our point of view but a result nevertheless.

[malc d]

It sounds as if someone elses' 'crime' ( possibly a more serious one ) has been entered on a computer somewhere against your sons name in error.

 

If it can't be sorted out directly with the court or police it sounds like a job for a solicitor as others have said.

 

 

[GJH]

CliveH - 2008-11-30 10:15 AM

And i take your point on the parking bit - but the point is that the ticket said obstructing the road - and he was not even on the road - the car parking area is one that is used all the time and no signs on it to say it should not be used so having taken advice on that - we have been told we have a strong case - hence his pleading not guilty.

Just on this particular bit, Clive. I'm not sure about parking in general but in cases where restrictions signed by yellow lines are in place the area covered is usually from the crown of the road to the building line, so includes any verge/pavement.

 

Hopefully your solicitor will get it sorted out anyway.

 

Graham

[nightrider]

Clive,

Consult a solicitor, follow his advice and take it from there, your son may be in line for some sort of recompense for time off work, looks like a computer blip somewhere.

[bob b]

A few years ago I parked on a verge behind the double yellow lines on a minor coast road near Littlehampton.

I was off cycling for the day, on my return I found a parking ticket under the wiper. The deal was, that if I paid within 7 days, the fine was halved.

I rang the council offices on the monday and explained the circumstances. Their response was that I had to pay. My response was that, I was not illegally parked and I'm not paying.

A couple of weeks later I received a letter asking for payment. I wrote back and again explained the circumstances and informed them that I had photographs of the 'illegally' parked vehicle and said I'll see you in court.

I didn't hear anymore about the matter. They do try and bully you into paying, but if it is a 'grey' area, I think they will drop it.

[BGD]

Hi Clive –

 

Seems to me there are two issues here: is the charge correctly framed against your son as an individual; and what is the charge.

 

The Charge.

I suspect that the actual charge does not refer to the “road”, but rather to the “Highway”. My recollection of the law on this is that most of the various driving and parking regulations apply not just to the “road” (the carriageways, the bit you drive along), but to the “highway”, which is the entire width between private boundaries – if you like it’s the road plus the pavements/verges on either side of it.

I suspect that the allegation against your son is that he caused or allowed his motor vehicle to be left in a position on the highway such that it caused an obstruction.

The verge you referred to is (unless he can produce evidence that it is a privately owned piece of land, in which case the regulation would not apply) is indeed a part of the highway.

So, the case would turn on whether his car being parked there caused an “obstruction”.

This is a Criminal law, rather than a Civil law case, so the Magistrate court tests to be applied is that of “beyond reasonable doubt”. The accused is presumed innocent unless the prosecution can show beyond reasonable doubt that they are guilty of the offence as charged.

Things that a court should consider would include whether the verge has a footpath (not necessarily a formal path, but an “in practice” path that pedestrians do use) running along it which his car blocked; whether there are houses in the vicinity, whose residents are used to walking along that verge; and how much of the verge remained passable by pedestrians once his car was blocking the part that it did.

If (note, “if”) there was still a space on the verge remaining that was clearly sufficient to allow pedestrians to pass unhindered, without being forced to move onto the road surface; or there was a de-facto footpath running along the verge and his car did not obstruct that, I think it unlikely that a court would find that he’d caused an “obstruction”.

 

Remember that all that has happened so far is that someone (Police, or Traffic Warden) has made an ALLEGATION of a breach of traffic regulations; it would be for a court to decide whether this is valid or not, if your son disagrees with that allegation.

 

 

 

 

Now let’s think about whether the charge is correctly framed:

On the actual summons (the legal document that he is required to respond to), the details of the charge will be something like: “On “X” date you did cause or allow vehicle registration “XXX” to be left at “Y” location, causing an obstruction to the Queens Highway”.

If, as you say, that charge (because of court official or Police mistake) refers to a car that your son does not own, and the location is different to the one he thought he was being “done” for, then legally, all he has to do is to plead not guilty.

Forget what really happend. What is on the charge document is what he's actually being charged with.

Remember that I pointed out above that the accused is presumed innocent unless the prosecution can show, beyond reasonable doubt, that they are guilty of the offence as charged.

All he would actually need to do, (because the Police Admin people have clearly knobbed up the details of the charge), is to send the charge sheet back (NOT corrected, but with the charge left exactly as they typed it – there is NO obligation on him to indict himself by pointing out mistakes in the prosecution charge) and marked “not Guilty” and signed.

A date would then be set for a hearing at Magistrates Court.

On the day, he turns up. The Court Officer reads out the charge.

He pleads not guilty.

The Magistrates ask the CPS person (the prosecutor) to detail their case against him.

S/he will say that car “XXX” was seen parked on the verge at “Y” location on “Z”” date (as per the charge sheet), and in the opinion of the person who gave him the ticket, it was obstructing the highway.

Your son will then be asked to give his defence against this charge.

At which point he simply says: I do not own, and never have owned the car with reg ”XXX”, I was not at location “Y” on “Z” date. I did not commit the offence that I have been charged with here, as I did not cause or allow that vehicle to be parked at that location on that date.

Case thrown out instantly.

Jolly good fun; and he can tell the tale at dinner parties for years thereafter.:D

 

 

 

 

 

That’ll be the usual fee of a 1 litre bottle of Mint Choc Bailey’s, to Bruce and the Sparkle here in Spain, thank you very much. :-D

 

 

 

 

 

[CliveH]

Thanks for all the responces - we will be taking advice first thing monday and will post the responce of this and what the courts responce.

 

We had already taken some advice on the first bit about parking off the road and the advice was that unless the police had photo evidence of the "obstruction" the case would be overturned anyway if we had photo evidence to show that no obstruction to the road or footpath had taken place.

 

This we have and so were expecting to fight ourcase on that - but now the court has cocked up re the car reg, it may be simpler still.

 

What I don't want to do is to give them the heads up that there is a mistake just yet as it could give them the chance to reissue the correct details if there is a chance that when the case is heard it is 100% dismissed because of this mistake.

 

Cheeky I know - but overall I am fed up with us motorists being treated as a source of income for the taxman. >:-(

[nightrider]

Clive,

Was there a mention of a fixed penalty fine? I know it is irksome and annoying but sometimes paying the fixed penalty works out to be the cheapest option rather than involving the cost of a solicitor?

[donna miller]

knight of the road - 2008-11-30 4:51 PM

 

Clive,

Was there a mention of a fixed penalty fine? I know it is irksome and annoying but sometimes paying the fixed penalty works out to be the cheapest option rather than involving the cost of a solicitor?

 

This is what the police, and/or council are hoping for, That you just pay up without question. But why should you.

It is highly possible that his car number plate may have been copied and put on another vehicle, we have been having speeding tickets sent to the factory because some little scrote has had a plate made up with our 17 tonne lorry's reg, and put it on a Clio. The police know this and yet persist in sending NIP notices to us.

Like Bruce said, if he's never owned the vehicle on the ticket, he hasn't comitted any offence, so why should he pay a fine.

[CliveH]

Bruce - you are a star - my sincere thanks - and Donna - my thoughts exactly.

 

If he had done the dirty deed then my advice to him would have been pay up and learn the lesson. But my thoughts are as Bruce outlines - if we let them go along and then drop the bombshell of "wrong car" then we can all walk away cleared and possibly with some expenses for our trouble.

 

But in this case as I do believe the ticket was issued wrongly, personaly I would rather have that point proved - but if you are handed a gift horse - why look it in the mouth?

 

We shall ring them tomorrow to confirm that he does not have to attend if he is pleading not guilty - very confusing contradictory wording used but first we will take some legal advice just to make sure

[CliveH]

Have taken legal advice from a really helpful firm called

 

Traffic Lawyers

74 The Close,

Norwich,

Norfolk

NR1 4DR

 

p: 01603 281125 f: 01603 610088

 

http://www.trafficlawyers.co.uk

 

 

info@trafficlawyers.co.uk

 

 

Spoke to a chap who advised asking for:-

 

a) a copy of the regulations under which the FPN was issued

 

b) Proof that the above regulations have been lawfully implemented (apparently they often are not)

 

He also recommended that my son states that he

 

"disputes the entire case in its entirety and requires the court to prove each and every aspect of the case"

 

He advised very strongly that we should NOT flag up the mistakes we have identified because if it does go to court - the case will be thrown out due to wrong info cited.

 

[BGD]

Bingo!

 

And my advice only cost a bottle of Bailey's. :D

[malc d]

BGD - 2008-12-01 10:44 AM

 

Bingo!

 

And my advice only cost a bottle of Bailey's. :D

 

 

Sorry BGD but you can't claim your bonus until there is a successful outcome.

Only bank managers can do that.

 

 

 

;-)

[Brian Kirby]

Just two things here.  There is no right to park anywhere on a highway, which definition includes the road, verge, and pavement.  You can therefore, when parked, at any time, be held to have created an obstruction.  If an emergency vehicle, for example, needs access to a frontage your vehicle is blocking.  Whether you would normally be prosecuted for such an offence is another question, and would no doubt largely depend on how reasonably you had parked.  However, parking on a verge might at least obstruct the corporation mower, so they might want to prosecute.

Second, is the mix up in identifying the location, and the vehicle.  Checking whether the registered owner of vehicle cited, corresponds with the name and address to which they have sent the notice, takes little time, so why not invite the issuer to do just that?  Since it seems they have made at least one error, it would seem at least as likely that error is the underlying reason for both notices, as that one was correct while the other was wrong.  If it went to court, it would seem likely to fail, simply because they would have discredited themselves as reliable witnesses. 

I'd suggest your son phones in the first instance, but follows immediately with a letter, reiterating the telephone conversation, pointing out that he is not the registered keeper of the vehicle and was not in Worthing, and demanding they drop the matter forthwith.  If they don't, then go to a lawyer (who after all will charge you) with all the documents. 

Then, if you want some fun, write to the Chief Exec of Brighton City Council with copies of the documents, expressing your deep unease at the way his council is behaving, in resorting to bullying and unreasonable tactics to boost its revenues, especially as it appears to be incompetent in connecting the misdemeanour with the miscreant, despite having vehicle registrations numbers to assist it.  Copy this letter to the local paper, the Evening Argus, and await the fun.  If you do this though, I wouldn't park on the same verge for a while!  :-)

However, there is another possibility, which is that someone has "cloned" your son's registration number and is parking with impunity at, they think, his expense.  Might be worth a trip to the road in Worthing to see if a vehicle with matching registration is, indeed, parked thereabouts?

[BGD]

Hi Brian -

 

I may have misunderstood Clive's original post, but the way I read it, I thought his son got the parking ticket whilst the car was actually on the verge (ie, not just a notification by post at some time later)......perhaps Clive could clarify which of these two scenarios was the situation.

 

If (I accept that I may well have wrongly interpreted his post) my surmise was right; I think I'd stand by my original advice and suggest that he doesn't phone them to tell them of the mix-up that someone in their Admin department seems to have made since.

If it was me, I'd stay quiet (saying only "not Guilty" on the official charge form) until the case actually comes up in court. I feel that the advantage of this "silence" tactic removes the chances of the Admin people correcting the details of the charge prior to any court hearing.

And so long as the details of the charge stay wrong, then when its details are read out in court he'll have no problem convincing the Magistrates that, as charged on that day, he's not guilty.

 

It's perhaps pertinent to mention that under my understanding of the rules of Criminal Court procedure, the details of a criminal charge(s) can be amended by the prosecution at any time before a court hearing, but NOT once they have been read out in open court.

Once read out, it is then necessary for the prosecution to show, beyond reasonable doubt, that the defendant is guilty of that exact charge.

 

 

 

 

Anyway, whichever way your lad decides to go on this, do keep us posted on the case though Clive, 'cos it's an interesting situation.

 

 

 

[Brian Kirby]

True Bruce, but the court case relates to the Worthing incident involving a car he does not own, does it not?  I had assumed the two incidents were unrelated, and that his details have merely been mixed with someone else's car.  Since he can easily prove he doesn't own the Worthing car, there is, presumably, no case to answer.

Regarding the ticket for parking on the verge, I assume the ticket should cite the actual ground for issue, presumed obstruction.  All he needs to know regarding that, is whether he can be prosecuted for obstructing the verge which, as it forms part of the highway, seems possible, if rather unreasonable.  If he can be, and as he has already admitted being so parked (photograph etc), the cheapest route would presumably be to pay up.  If the charge is contentious and the council would have to prove actual obstruction, stating what was obstructed and how, it might be worth contesting but bear in mind the council is likely to press for costs as well as the fixed penalty.  It could get expensive.  He really needs a local solicitor, with local knowledge.

But I think you're really chucking good money after bad, and just paying the ruddy fine may be best, if he is pursued in the case of the Brighton, as opposed to the Worthing, ticket.

[CliveH]

Not sure who issued the ticket as it was on the car when he returned.

 

Photos prove that niether the road nor the footpath were obstructed.

 

The legal firm I rang for advice stated that this happens all the time and that the ticket itself is most likely to be illegal due to it being most unlikely that the regulations have been lawfully implimented. This is backed up by the photographic evidence as to required signing etc. There isn't any!

 

Secondly - their advice is specific and adament in that do not recommend telling the court about the mistake for exactly the reason Bruce outlines.

 

If and when my son attends the hearing the procedure will be that the prosecution stands up makes its case. At this point we stand up and cite the alternative and say "Sorry your Honour - we have prepared our case on this info" and the solicitor said £ to penny - the magistrates will dismiss the case.

 

To warn them would be "silly" in the solicitors own words. In particular he was very surprised at the confused wording, the threat of a warrent for my sons arrest if he does not attend then in the next para stating that if he pleads not guilty ne need NOT attend! - Plain English it isn't.

 

Then we have the fact that the letter was dated some 20 days ago but the case notes attached only a few days ago. "Very sloppy" was the solicitors opinion.

 

So at least we know which way we are going - and that direction is what I thought would be the likely scenario.

 

Many thanks all for the advice and thoughts.

[Brian Kirby]

All of which illustrates the considerable advantage of being able to see the actual documents.  Good luck, whatever course you take.  Brighton has a certain reputation for this kind of thing where parking enforcement is concerned.

[CliveH]

Thanks Brian

 

I will post again when we have an update.

 

Letter goes to the Court today registerred post.

 

Just watching BBC Breakfast over a cuppa nd they had the Quinten (?) chap on about road congestion - he made some very interesting points about the amount of Road Tax, fuel tax etc that we pay and how little of it goes to improve transport and the road network.

 

Fairly staggering statistics - and based upon the info available on the web - Local Authorities are using parking fines as another cash cow. I think the actions of Swindon - where they realised that now the Government gets all the money from speed cameras, not them anymore that they could do without them! - OK not parking, but I wonder if our LA's would be so keen to issue parking tickets if the monies disapeared into a central government black hole but the LA's had the cost of collecting it?

 

:-S

[GJH]

CliveH - 2008-12-02 8:20 AM

(snip)

Fairly staggering statistics - and based upon the info available on the web - Local Authorities are using parking fines as another cash cow. I think the actions of Swindon - where they realised that now the Government gets all the money from speed cameras, not them anymore that they could do without them! - OK not parking, but I wonder if our LA's would be so keen to issue parking tickets if the monies disapeared into a central government black hole but the LA's had the cost of collecting it?

(snip)

I haven't seen - or looked for - stats on LA parking fine income, Clive, but I would be very surprised to find anything other than a large increase.

 

The reason isn't that LAs necessarily wish to increase income but comes about as a result of the change in the law which de-criminalised parking. Previously the police, often through the employment of traffic wardens, were responsible for enforcing on-street parking legislation. In many areas of the country, because of other calls on police resources, enforcement was given a low priority.

 

As a result the government passed legislation (can't remember the Act offhand) allowing LAs to take over enforcement of on-street parking in addition to their off-street responsibilities. Not all councils have done so yet. Some which have use direct labour and some sub-contract to companies such as NCP.

 

Where problems have occurred (Sunderland is the most famous example I think) they have tended to be where private companies (which sometimes give their employees targets for income from fines) are used.

 

Graham

[CliveH]

Interestingly Graham - it was exactly this point that the specialist legal bod I contacted was flagging up when he was talking about asking the court to prove that the legislation has been correctly set down and implimented.

 

In his view most LA have not done this correctly and simply asking for proof that it has often means they will not pursue a fine.

 

Mad world.

[GJH]

CliveH - 2008-12-02 9:45 AM

 

Interestingly Graham - it was exactly this point that the specialist legal bod I contacted was flagging up when he was talking about asking the court to prove that the legislation has been correctly set down and implimented.

 

In his view most LA have not done this correctly and simply asking for proof that it has often means they will not pursue a fine.

 

Mad world.

I know what you mean Clive because I've come across the problem myself - not sure whether the lawyer is right when he says "most" though.

 

When I was working in IT in a local authority, one of the jobs I did was to assist in obtaining parking software when decrim was coming in. The guy I was dealing with was on the ball as regards correct implementation as a result of problems with mistakes being made by some of his predecessors.

 

There are all sorts of pitfalls from the legal orders themselves, through making sure that road markings (where applicable) are properly done - and maintained after roadworks/general wear & tear, to wording on tickets and notices.

 

Graham