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from: Nick Lester - Head of Transport & Environment Committee. Director
of Transport, Environment and Planning ALG
Dear Colleague,
London Borough of Barnet Judicial Review
I am writing further to my letter of 3 May 2006 now that the result of
the judicial review requested by LB Barnet with respect to the Moses
case has been decided. The judgement in the High Court upheld the
adjudicator’s decision in the Moses case, with no substantial
differences. In particular, the judge held that if a pcn did not have
the date of issue (or date of notice) as well as the date of
contravention explicitly shown then the PCN becomes a nullity. I attach
a brief note of the judgement as we have yet to receive a transcript.
As my letter of 3rd May said, those boroughs where PCNs have complied
with this requirement to the effect that they have no open cases with
non-compliant PCNs will not be affected. Boroughs with open
non-compliant PCNs do need to give careful consideration to their future
actions and are recommended to seek their own legal advice. This letter
should not be taken as formal legal advice. My own views are:
Boroughs should ensure that their PCN format complies with the Al’s Bar
decision as a matter of urgency (ie that the PCN contains both a date of
issue (or notice) and a date of contravention, even where these are the
same).
Boroughs should ensure that they do not issue any further PCNs that do
not comply, even if this means suspending
enforcement pending a redesign of the notice. The court’s decision makes
clear that any non-compliant PCNs are a nullity. It is also clear that
by “substantially compliant” the court means that the PCN must wholly
comply with the Act in substance (but not necessarily literally) rather
than meaning that if it almost meets the requirements (say to 90% or
95%) then that is sufficient.
Boroughs may not enforce non-compliant PCNs. This means that no NtOs or
charge certificates should be sent out, nor
should debt registrations or bailiff’s warrants be sought with respect
to non-compliant PCNs. Boroughs may continue to receive payments made
against non-compliant PCNs and do not need to refund any payments
already made. The adjudicators have already considered, and rejected, a
bid to re-open previously closed cases on this issue.
Some boroughs have also raised with me the question of whether the
adjudicator can allow appeal on the basis of an argument which has not
been raised by the appellant at any stage. The Moses case judgement did
not touch on this matter and this has not been raised as a focus of any
judgements so far. Where court rulings have referred to this matter the
references are conflicting. Clearly a further judicial review would be
needed to settle the issue once and for all but in view of the outcomes
of judicial action so far, I would not recommend this course of action
as part of this case as, whatever the outcome, it would not reflect well upon the boroughs. As always, should anyone wish to discuss this issue,
please feel free to contact me.
Yours sincerely
Nick Lester
Director, Transport, Environment and Planning
Enc.
BARNET JR JUDGEMENT 02 AUGUST 2006
1. INTRODUCTION Mr Justice Jackson set out the requirements of a Penalty
Charge Notice, as defined in S66(3) of the Road Traffic Act 1991, and in
the extension of decriminalised enforcement by the LLA Act 2000 to
include service of PCNs by post.
2. THE FACTS Mr Justice Jackson went through the wordings of the PCNs at
issue in detail. He pointed out that all the parties had agreed that, in
the case of the second PCN, the motorist (Mr Moses) had driven away
before the PCN could be issued. In both cases, the motorist made
representations to Barnet, which were rejected. He then appealed to the
Parking Adjudicator. The Adjudicator allowed the appeals against both
PCNs, on the facts of each case and because he found that the wording of
the PCNs (failure to specify a date of notice) made them invalid. Barnet
accepted the direction on both decisions, but applied for review on the
grounds that the Adjudicator had erred in his interpretation of the law
and that the PCNs were valid. Barnet did not request an oral hearing of
the review application, and did not submit further evidence. The
application was dismissed by another Adjudicator, who drew on an earlier
decision (Al’s Bar v. Wandsworth) in stating that the wording of a PCN
needed to show substantial compliance with the statutory requirements.
He emphasised the need for certainty.
3. PRESENT PROCEEDINGS Barnet claim that their PCNs were “substantially
compliant”. They said that the way time limits were described on the
Notice effectively added an extra day to the statutory requirement, but
that this did not matter as it did not cause prejudice to the motorist.
Mr. Justice Jackson noted the “helpful background” set out in the Chief
Adjudicator’s acknowledgement of service and noted that Barnet’s new PCN
does comply with the statutory requirements.
4. DATE OF NOTICE The judge referred back to the RTA ’91 requirements of
s.66(3) and confirmed that the date of notice must be on the charge,
otherwise the statutory purpose of sections 66((3) c-e is thwarted. He
went on to explain that the date of contravention and the date of notice
are usually the same, but not always because of the question of postal
issue and if a contravention was observed just before midnight, but the
PCN issue just after. He also indicated that the date of notice had to
appear on the main body of the ticket rather than just in the tear-off
payment slip. To illustrate this, he mentioned in detail the example
contained in the Al’s Bar decision of a motorist returning the slip with
payment, and then wishing to dispute the Council’s refusal to accept a
discounted payment. Mr Justice Jackson mentioned that the requirement of
the two dates, (contravention and notice), had been mentioned by
Adjudicators on more than one occasion. He emphasised that the statutory
requirement of the form of the PCN were simple and clear – compliance
was not difficult and a specimen form had been available for more than
10 years. Enforcing authorities therefore had no excuses for
non-compliance. The Barnet PCN showed the date of the contravention, but
not of the notice, therefore was not substantially compliant. Mr Justice
Jackson concluded this section of his judgement by stating that the
question of relevance did not arise because the statutory conditions of
the notice were not met, therefore financial liability did not arise.
5. EFFECT OF EXTRA DAY The judge stated that, in the light of his
decision, there was no need to pass judgement on the “effect of the
extra day” in the wording of Barnet’s PCN. He stated that it would be
necessary to consider further evidence to discover whether, in the case
of Barnet enforcement procedures, a prejudice did occur, but that this
was not necessary as he had already found that the PCNs were non-compliant.
6. CONCLUSION Barnet’s application for Judicial review was dismissed. Leave to appeal against the judgement was refused.
ALG Advice to London Boroughs Re Barnet JR
did not have
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