When is a PCN not a PCN?

Currently in the UK a Penalty Charge Notice’s validity depends on who is issuing it and how it is issued, according to a recent ruling at the High Court.

If one of our camera enforcement officers observes a motorist stopping illegally on a red route, he or she will issue the PCN by post to the registered keeper of the vehicle.

However, if one of our parking attendants observes the same contravention, the motorist can escape the penalty if he or she manages to drive away from the scene before the PCN is either affixed to the car or handed to the driver.

This is something that Transport for London is keen to clarify both for motorists and enforcement authorities so that everyone is working to the same rule book.

Transport for London has already sought a clarification on this issue through a Judicial Review at the High Court, but we were unsuccessful in closing the loophole that currently exists.

Using the London Local Authorities Act 2000, which allows London authorities to serve the PCN by post where the Parking Attendant has been prevented from serving the PCN, TfL tested the case that where a driver had driven off to deliberately avoid physically receiving the PCN, the Parking Attendant had therefore been prevented from serving the PCN.

Unfortunately the current legislation does not allow for this interpretation of the law.

Why all the fuss?

Unlawful parking and stopping on London’s Red Route Network is characterised by short stops where the driver often doesn’t stray very far from his vehicle. Something like one in every ten drivers return to their vehicle in these circumstances within a short time, resulting in a ‘vehicle drive away’.

The Red Route Network carries some 35% of London’s traffic and even brief stops can cause major congestion and road safety hazards on these major arterial routes. A zero-tolerance approach to enforcement is a ‘must’ to minimise disruption to thousands of other motorists.

This is about ensuring TfL’s enforcement procedures are as clear as possible for all concerned, and about keeping clear the main thoroughfares of one of the most vibrant and busy capital cities in the world.

So what did the Judge say?

TfL sought a Judicial Review of the Adjudicator’s decision which was heard in the High Court on 26 March by Mr Justice Calvert-Smith.

The Judge sympathised with TfL and recognised the difficulty faced by the authority in attempting to manage the road network. With “considerable reluctance”, Mr Justice Calvert-Smith concluded that the legislation could not be interpreted to allow the term “prevented” to include a circumstance where the PCN was in the process of being produced by the Parking Attendant, even when the Parking Attendant had indicated to the driver that was what he was doing.

However, it has always been accepted, and was reiterated by Mr Justice Calvert-Smith, that any physical or verbal threat or abuse towards a Parking Attendant can be defined as an illegal prevention of service of a PCN, and in these cases TfL will not hesitate to serve the Notice by post.

So what does this mean?

Most importantly, it means that we now have a wholly inconsistent enforcement regime. TfL (along with many other authorities) relies on camera enforcement as an integral part of the enforcement solution. Around half the PCNs we issue every year are through camera enforcement, the other half by Parking Attendants patrolling the Transport for London Road Network themselves.

Following the High Court ruling, we now have the bizarre situation where a motorist who stops unlawfully on the Red Route may or may not receive a PCN, depending on the method used to enforce at that time and place. On one hand, the motorist could be captured by CCTV camera and be informed of their misdemeanour by post a few days later (and be required to pay £100!). On the other hand if a Parking Attendant catches you by standing next to your vehicle, producing a PCN and telling you what he is doing, you can avoid the penalty by getting in your car and driving away – as long as you manage to drive away quickly enough.

There is, therefore, an issue of fairness and consistency at the heart of this case, as well as a serious question over whether this type of legislation encourages motorists to break the law by stopping illegally and to drive dangerously while trying to escape a PCN.

Additionally, TfL does not want its Parking Attendants to work in a combative situation where motorists have an incentive to prevent the issuing of a ticket at the roadside, even though this case did state that any verbal or physical threat against them would remain a clear and unlawful prevention of service of a PCN, and therefore result in issuing by post.

So what next?

TfL finds itself in a position where it is tasked with keeping some of the busiest roads in the country clear of obstructions so that millions of Londoners can go about their daily business as quickly and safely as possible. We have been successful in increasing compliance with the no stopping regulations in recent years, and any downturn in that compliance could have a serious impact on congestion on the capital’s roads.

The law currently provides the mechanism for parking enforcement, but does not allow for efficient and effective enforcement of no stopping regulations. In order to keep London moving the law has to change, and TfL is lobbying the Government to implement this change after being unsuccessful with current legislation in the High Court.

The existing legislation is now being updated under the Traffic Management Act (TMA) and TfL has written to the Transport Minister asking her to beef up the Statutory Guidance to Authorities around the provision around prevention of serving a PCN (which has been replicated in Part 6 of the Traffic Management Act).

This is the best opportunity to make it as clear as possible to both authorities and the driving public what is permitted and what is not. There cannot be a simpler message than “don’t stop illegally”, yet at the moment it seems there are circumstances where motorists could be encouraged to break the law under the belief they can get away with it.

So it’s as simple as that?

Not entirely. The term “prevented” must be interpreted responsibly. If a Parking Attendant (or Civil Enforcement Officer as they will be renamed under the Traffic Management Act) can be deemed as having issued a PCN when not having placed it on the vehicle, there needs to be some robust guidance to avoid situations where it can be alleged the Parking Attendant wasn’t near the vehicle at the time, or indeed that the vehicle was not actually unlawfully parked or stopped at all. This is to protect both motorists and enforcing authorities by reducing any grey areas in the law.

At TfL we already have in place guidance to avoid such allegations, namely that the Parking Attendant must have entered at least the Vehicle Registration Mark into their PDA and that he must have spoken to the driver to indicate that he was issuing a PCN. This conversation must be recorded in his notebook.

A further requirement which TfL would support if the law were changed could be to require the Parking Attendant to take a photograph of the offending vehicle, perhaps as his first action. This would prove the vehicle was parked or stopped unlawfully at the time in much the same way as camera enforcement does at the moment. As it stands now, a photograph of an unlawfully parked or stopped car would not be sufficient to issue a PCN.

Conclusion

It will be a while before we know whether the DfT is in a position to help clarify the law.

At the end of the day, this is really all about at what point a PCN becomes a PCN. For a camera operator it is as soon as the vehicle is stationery for a pre-agreed period of time. Surely that should be the same for the Parking Attendant too, not only for the enforcement authorities but for clarity for the motorists themselves.