Yes they should. If I was wrong I was going to have to pay THOUSANDS of pounds (backdated car tax, costs, victim surcharge and storage fees of £21 per day from September to April)... so it was not something I treated lightly!!
You are right to caution readers - such situations are unusual - I am not telling anyone 'how to beat the DVLA'. I am advising only of what the relevant law in my case was - how the points of law were argued and how my case tested a legal precedent successfully. Everyone must weigh up the risk they are taking and decide based on all the facts and the law in question if they really have a case to argue.
My case was of a SORNed car, in a parking area that I knew for a fact had been installed in the 1980s for residents to use. Unless you are in pretty much exactly the same situation - my case is unlikely to help you. (Although you may enjoy reading the story!)
I fought and won MY case, not anyone else's and I make no claim that I can save anyone else from a conviction... Everyone reading this needs to understand two things:
1. My situation was very specific. The DVLA had nothing to prosecute with except the power to force me go to court... ultimately they only had a photo of my car and a map that was highly questionable which was not eventually used and a dodgy letter from the council (created AFTER the pre-trial hearing) claiming the car parking was a lay-by. They tried to rely on the power of Magic Words.
2. In the year 2013-2014, the DVLA launched 21,863 prosecutions for Section 29 cases.
- They withdrew 1,639 (7.5%) before trial.
- they lost 99 (0.45%) cases.
- The DVLA do not often lose!
BUT - No one will ever know how many people were intimidated to settle Out of Court for offences they did not actually commit.
I was innocent. I am here to provide as much material as I can that may help another innocent person.
BUT - I was one of around only 0.5% of cases where the Court decide the DVLA made a mistake.
It is no good people simply disputing whether a road is a road just because they do not like the DVLA clamping their car. They really need to be certain that no one would normally consider the place as a road of any kind. Only if that is the case should anyone start trying to see if my case may help.
At the pre-trial hearing in my case, it was agreed by the Court that the 'point of law' on which the whole case would rest is whether the land my car was parked on amounted to 'Public Road'. I argued it was a car park and the DVLA argued it was public road - their argument relied on Section 192 RTA definition of road applying. Only a Court could finally decide who was right.
This was sufficiently similar to allow the precedent to apply because Clark vs Kato dealt specifically with the question of whether a place was a road or a car park.
My evidence and my comments on the points of law are based only on that issue - because it was pretty much the whole case
I am also explaining - aside from the points of law in my own case, how you fight back against a institutionally dishonest, disorganised and secretive Govt Agency. (I will make a post specifically about obtaining data and documents from such organisations when in this kind of dispute)
By using the Data Protection Act and the Freedom of Information Act I was able to obtain very relevant documents that the DVLA would never have willingly let me see (See PDFs). So, we can look at the law and look at the facts AND the DVLA's own internal documents. If, as in my case, the facts support you, the law supports you and EVEN THE DVLA DOCUMENTS support you - then consider HOW to fight, because only a Court can ultimately decide - the DVLA do get it wrong sometimes.
While my case was based on a specific point of law, no one can really say if it was very unusual or not because the DVLA claim they do not keep any records of WHY they lose cases... However you, dear reader, will know. You will know if you are in a 'car park'... it will be quite evident. If you think you are, then READ the PDF files I uploaded earlier very, very carefully... they are INTERNAL DVLA documents, especially the wheel clampers' operating instructions. Then read Clarke vs Kato very, very carefully. It is important you understand it - follow their reasoning and assess your situation in the same way they do.
If, as in my case the DVLA start quoting Section 192 as a definition of 'Road' (They did this instantly with me, so I think its common practice) then my case may help you in preparing to defend against their manipulative usage of the RTA definitions.
No this is a House of Lords ruling - they are never so narrow as to only limit themselves to one case - by the time cases reach the highest court of the land there is usually a question of law that needs clarification because no suitable case law exists to determine the correct outcome (or interpretation of legislation). They create precedent not only by determining the outcome of the case before them but also by creating precedent in the principles that apply - so inferior Courts should also follow the principles in the same way. My use of the precedent was to make the Court follow the same analytical process and apply the same reasoning as the Lords, which left them with no alternative but to find in my favour.
The Lords' did not create any distinction about 'off road' car parks in their reasoning. The case went further than that, it addressed car parks in a broader sense - they were clarifying the law generally about whether a car park can be a road, or vice versa, not simply ruling on one single case. It dealt with whether any car park could be considered a road based on normal use of language and the language of legislation. It did determine that one of the car parks probably contained a 'road' within it - but the parking bays could not themselves be considered road.
Clarke vs Kato dealt with two conjoined cases that had gone through all the appeal courts... both involved accidents in car parks (one open, one multi storey - which makes no difference). The case arose because the people who had accidents wanted to make claims on their insurance... but the insurance companies would not pay claiming it was not a road and not covered by insurance. Cases were won lost and appealed and eventually made their way to the Lords for a final decision and to clarify the law.
It was relevant in my case because they made a VERY CLEAR ruling that car parks cannot be a road and WHY. That brings me to Raykay's next point - can a parking bay that is 'on a road' be considered part of the road or not?:
The Lords explained that in a number of pieces of legislation there is a consistent differentiation between 'road' and 'parking'. They rattled off a list of Acts that clearly show parking and roads as being separate and then the Lords the gave this reasoning - with my emphasis:
"The distinction recognised by Parliament between a road and a parking place can be found in the provisions forming Part IV of the Act of 1984 and the definition of "street parking place" and "off-street parking place" in section 142. In particular section 57(1)(b) empowers the provision and maintenance of "suitable parking places, otherwise than on roads, for vehicles . . . ." While a parking place could be on a road, it is nevertheless not itself a road. All the less is there reason to regard a car park as a road.
A more formidable argument for the appellants in my view lies in the fact that the legislation is in certain sections expressly made to apply not simply to "a road" but to "a road or other public place." These added words appeared in section 15(1) of the Road Traffic Act 1930 in relation to the offence of driving a motor vehicle when under the influence of drink or drugs. Following on the report of the North Committee in April 1988 these added words were introduced by sections 1 and 2 of the Road Traffic Act 1991 into the first three sections of the Act of 1988 which prescribe certain serious driving offences. While there was some discussion in argument before us whether the North Committee had correctly stated the law on the meaning of the word "road" the express addition of the words seems to me to be a clear indication that a conscious extension of the scope of the provisions in question was being made, reinforcing the conclusion that where the word "road" stands alone it bears its ordinary meaning and is not to be extended to public places such as car parks."
I argued that because VERA only defines 'Public Road' as a 'Road' maintained at public expense (NOT highway) that the word 'road' only bears it's ordinary meaning, and is not to be extended to public places such as car parks.
Of course the DVLA would argue that the 'ordinary meaning' of 'road' is defined by Section 192 of RTA.
My reference to 'other public place' does not relate to any confusion in my understanding of the law, but the DVLA/NSL's confusion... they quote such phrases without really knowing where they come from. A number of DVLA and NSL staff told me they can clamp "anywhere the public has access" and in "any public place" which is plainly absurd (and not even part of their own guidance - see PDFs). I am repeating the Section 192 definition again below with my emphasis:
Section 192 of the Road Traffic Act:
(a)F3 , in relation to England and Wales, means any highway and any other road to which the public has access, and includes bridges over which a road passes ,
The wording 'other public place' runs through the Road Traffic Act... as in here with regard to drink driving:
5 Driving or being in charge of a motor vehicle with alcohol concentration above prescribed limit.
(1) If a person—
(a) drives or attempts to drive a motor vehicle on a road or other public place, or
(b) is in charge of a motor vehicle on a road or other public place,after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence.
This is for obvious reasons, you want to be able to prosecute someone who is drink driving around a sports field regardless of the fact it is not a 'road', so 'other public place' appears to allow prosecutions beyond the road itself.
I think the DVLA/NSL confuse that language with the amendments made to VERA by the Finance Act 2008 where is says:
"In sub-paragraph (1), for “on a public road” substitute “ in any place other than a place to which this Schedule does not apply ". "
"In sub-paragraph (1)(a)(i), for “on a public road” substitute “ in any place other than a place to which this Schedule does not apply "."
Which may be why some DVLA staff claim they can clamp 'anywhere'.
I argued that point too! I was not happy with the DVLA trying to use a definition from RTA when the alleged offence I was being prosecuted for was under VERA! However, if the definition in VERA is insufficient to lead to a clear answer a Court may rely on definitions given elsewhere or relevant precedents. As I said earlier, the DVLA argue the 'normal meaning' of 'road' is defined in Section 192 of RTA.
I had two key defences:
1. Under VERA, Schedule 2A - the parking area my car was in should be exempt from clamping as it is 'associated with a dwelling' and IS 'normally' only used by the residents. Clamping is a separate matter legally to the offence under Section 29, but Schedule 2A is underpinned by the principle that such places ARE NOT PUBLIC ROAD... the DVLA's internal documents (See my PDFs, in particular the 'flow chart') refer to them as "beyond the public road". Therefore, if these are beyond the 'public road' these are places where a Section 29 offence cannot have occurred. The Court agreed.
2. The DVLA's insistence that they could reach for Section 192 of RTA to provide a definition invoked the Clark vs Kato precedent to determine if I was in a 'car park' or a 'road' as these are separate things. The Court agreed I was in a car park.
Clark vs Kato was not limited to only interpreting the Road Traffic Act, although the cases they addresses fell under that act, because the Lords dealt with the meaning of the word 'road' more broadly than just the RTA, looking through a swathe of legislation and even evaluated the relevance of European Directives. The Lords were seeking to clarify the law in regards to defining what legally constitutes a road and if that was applicable to car parks. However, as the DVLA wanted to rely on RTA this case became very relevant to my own. The Lords' commentary includes (with my emphasis):
"The word "road" is plainly intended to cover all kinds of roads. It embraces not only highways but "any other" roads. So a considerable breadth of meaning is available, provided that the place still qualifies as a "road.""
So while the term 'road' can include what has been settled in case law as constituting 'highway' including pavements and verges, etc, it does not automatically apply to anything that is not actually a road. They had already stated car parks and parking bays are separate things in other legislation and cannot be road.
If the DVLA wanted to rely on the RTA to provide definitions - they could not avoid the fact that in Section 25 of RTA, regarding tampering with a vehicle the wording states (with my emphasis):
"...If, while a motor vehicle is on a road or on a parking place provided by a local authority, a person..."
It is explicitly clear the 'road' and the 'parking place provided by a local authority' are two separate things. My car was in a parking bay, in a row of parking bays, installed by the local authority (I had proof from letters dating back 30 years to prove that fact).
The Lords' went on to say:
I turn next to consider the statutory definition of the word "road" in section 192 of the Act of 1988. In applying the definition the first question to be asked is whether the place in issue is a highway. We are not concerned here with that possibility and it is sufficient to observe that it includes such things as public footpaths and public bridleways. Failing an affirmative answer one then has to proceed to the words which follow; Does the place qualify as being "any other road to which the public has access?" This provision has to be analysed into two parts; first, is it a road? and second, if so, is it a road to which the public has access? In the present case we are not concerned with the matter of public access, but two observations on that phrase may be made. The first is that the element of public access has to be tested by reference to facts as well as rights. The question in this context is whether the public actually and legally have access. As the Lord Justice-General (Clyde) observed in Harrison v. Hill 1932 J.C. 13, 16:
"There must be, as matter of fact, walking or driving by the public on the road, and such walking or driving must be lawfully performed--that is to say, must be permitted or allowed, either expressly or implicitly, by the person or persons to whom the road belongs."
Lord Sands observed in the same case at p. 17:
"Any road may be regarded as a road to which the public have access upon which members of the public are to be found who have not obtained access either by overcoming a physical obstruction or in defiance of prohibition express or implied."
Secondly, the public in this context means the general public. To quote again from the opinion of the Lord Justice-General in Harrison v. Hill at p. 16
"I think that, when the statute speaks of 'the public' in this connection, what is meant is the public generally, and not the special class of members of the public who have occasion for business or social purposes to go the farmhouse or to any part of the farm itself; were it otherwise, the definition might just as well have included all private roads as well as all public highways."
It is important to observe that the consideration of access by the public only arises if the place is a road. It may well be that the public has access to it but that is not enough. As was recognised in Griffin v. Squires  1 W.L.R. 1106 it has also to be a road. In Oxford v. Austin  R.T.R. 416, 418 Kilner Brown J. referred to a road as "a definable way between two points over which vehicles could pass."
So for a Section 29 offence to have occurred under VERA, firstly the place must be a road! It is not relevant that the public may have access - as the DVLA kept saying it did. Public accessibility doesn't on it's own define a place as a road (nor whether it is exempt under Schedule 2A, it doesn't need to be 'private land' and could be walked or driven over - public access is not the issue in Schedule 2A.)
"...it is argued that a greater breadth should be allowed by way of a purposive construction. If that approach is to be adopted the first step must be to identify the purpose of the legislation. The purpose of the Act of 1988 is stated as a consolidating Act so that little assistance is obtained from the title. Certainly the purpose is to achieve some greater public protection. That was recognised in Harrison v. Hill  J.C. 13 in relation to the construction of the words "to which the public has access" in the Road Traffic Act 1930. But in the present context a more precise definition of the purpose is required."
"The question is what is the danger from which the public are to be protected. Is it the use of vehicles on roads, or is it more widely the use of vehicles? If it is the former then one is left with no guidance for a purposive construction. If the purpose of the Act is to protect persons on roads then one is still left with the problem of defining a road... "
This is important. If you want to apply the widest possible definition of 'road' it must be only in pursuit of the purpose of the legislation - e.g. to prosecute drunk drivers in order to protect the public. The relevance to VERA is that stretching the definition of 'Public Road' is only acceptable if it is pursuit of collecting tax from those USING the Public Road. There is no legitimate purpose in pursuing people who are not using Public Road...
"...It may also be noted that in section 34 of the Act of 1988 the driving of motor vehicles on any land elsewhere than on roads is prohibited. By giving a purposive construction to the word "road" what is meant is a strained construction, beyond the literal meaning of the word or beyond what the word would mean in ordinary usage, sufficient to satisfy that expression of the purpose of the legislation.
It may be perfectly proper to adopt even a strained construction to enable the object and purpose of legislation to be fulfilled. But it cannot be taken to the length of applying unnatural meanings to familiar words or of so stretching the language that its former shape is transformed into something which is not only significantly different but has a name of its own. This must particularly be so where the language has no evident ambiguity or uncertainty about it."
Well - as the Lords pointed out 'Car Parks', 'Parking Areas', 'Parking Places' and 'Parking Bays' have their own name not only in 'normal usage' of the language but also in many other Acts of Parliament. Therefore the Lords reasoned the definition of Road could not be stretched so far as to include these places.
In their conclusions they stated (with my emphasis):
"If one has recourse to the ordinary use of language I do not consider that either of these car parks would be regarded as a road or as a part of a road. They seem on the contrary to be places to which a road may lead. They are not places designed or dedicated for the passage of vehicles. Neither in character nor function do either of the car parks in the present appeals readily qualify as roads."
"In each case the function of the place was for the parking of vehicles. Nor does it seem to me to accord with the ordinary use of language to describe the passage and the car park in the case of Clarke as constituting a road. While a route useable by pedestrians or even bicycles may be identified across the park and through the passage it seems to me that cannot suffice to make the car park a road."
"Even if the carriageway should be treated as a road, the bays must retain their own integrity and it was while the car was in a parking bay, not on the carriageway, that the incident occurred."
Sorry DVLA, you lost... as I said you would. If you do not like the law, do not try to pervert our language, play word games with the public who pay for your miserable service and make empty threats of convictions - petition Parliament to rationalise the definitions in the Legislation. As the Lord's suggested:
"......it must be for the Legislature to decide as matter of policy whether a remedy should be provided in such cases as these, and more particularly it must be for the Legislature to decide, if an alteration of the law is to be made, precisely how that alteration ought to be achieved."
References for folks unfamiliar with the subject:
House of Lords - Clarke vs Kato: http://www.publications.parliament.uk/pa/ld199798/ldjudgmt/jd981022/clarke01.htm
Precedence (also referred to as a judicial precedent): http://en.wikipedia.org/wiki/Precedent