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TofuMan

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About TofuMan

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  1. When dealing with State Agencies I record ALL telephone conversations, I request as far as possible all communications in writing and I make copies of any documents I have to send and send them special delivery. I tell everyone to do the same - we all should. I have found State Agencies are riddled with cowardly liars who will do or say anything to avoid responsibility for a failure. Obviously the culture inside these agencies is all about blaming each other - so no one wants to deal with a problem when you bring it to their attention.
  2. Yes, I am not surprised the public are confused and the DVLA should not get to blame us for not understanding. They FAIL in their duty of care to properly advise the public. I think that this should be in driving test theory, explicit in Highway Code, and when applying to SORN your car there should be access to far clearer information than currently exists... (better than a vague statement about your drive or garage). However - back to my case, under VERA there is no 'Highway' it is only by inference that 'road' may be understood to mean 'highway' and therefore encompass the fence to fence approach. In my case Schedule 2A was raised... the key issue there was that Schedule 2A is part of VERA and does provide definitions to assist the Court, as do the DVLA's own documents from 2008. (See PDFs). If these appear in VERA they have some weight in considerations about how we should interpret VERA over definitions obtained from legislation elsewhere. If VERA and the DVLA state somewhere is 'beyond the public road' under Schedule 2A, it begs the question why they think they should prosecute anyone with a SORNed vehicle in those locations?! That is where they erred. I think I shall elaborate on the DVLA's documents soon - and go through their own interpretations.
  3. Yes - Prima Facie - meaning [from Latin, On the first appearance.] A fact presumed to be true unless it is disproved. In definitions of 'road', people must have open access to use it as a road - they should not have had to overcome an obstacle such as a fence... I suppose some legal brain thought this may be a defence in that case. Of course, the court viewed 'at first appearance' it was obviously the case that crash barriers are intended to provide safety for drivers rather than act as a fence to create boundary of some kind - but the matter still benefited from their further investigation. In my case 'Prima Facie' the whole of the width of the road from boundary to boundary falls into the definition of Highway quite easily... however, it was on further investigation that the facts began to change that initial presumption. Such facts were may not necessarily be readily apparent to a members of the public - but DVLA staff and Clampers who have the benefit of policy documents and the operating instructions manual, should not themselves be guessing! As a member of the public you should not have to GUESS if you are breaking the law or not - and sadly in cases such as mine it becomes very difficult as a 'law abiding citizen' to know if you are breaking the law! That is why I have uploaded the internal DVLA documents, because we should not be disadvantaged against by their own culture of secrecy... Read the PDFs and you will know as much if not more than most DVLA staff. The problem with Subject Access Requests and Freedom of Information Requests is the length of time they take to complete... so if people want anything from the DVLA under those routes they must do it quickly as soon as they think a dispute is in the offing. The next port of call could be to check on the local council records... if you have good reason to doubt the land in question is a road, you should be able to find evidence to support you. Your council can tell you if the area is adopted highway, but I found that does not necessarily resolve the dispute. Council records will possibly have clearer evidence of what the status of land is legally... and as these are contemporaneous records, saying what they thought at the time (rather than prosecutors attempting to shift the language decades later to fit their agenda) these can have some weight in the considerations of a Court. The 'prima facie' approach is often the basis on which the Police can arrested or detain people without knowing ALL the facts because it may be enough to have 'reasonable belief' that a law has been broken. (Blood all over your hands!) The DVLA have pseudo police powers.... however the Police would be obliged to collect ALL the evidence and then have the CPS scrutinise it and only then, if it is good enough to prove 'beyond reasonable doubt', start the prosecution. Also, they would be obliged to share ALL the evidence they have with the defendant (under the Criminal Prosecutions Investigation Act), even if that evidence weakened the prosecution case. The DVLA are not so diligent - you can be prosecuted just for failing to agree with them! In my case the DVLA really had no evidence, just a photo of my car and their own presumptions. They breached the CPIA failing to provide ALL the evidence (lucky I did my SAR/FoI early) and by filing their skeleton argument late (all three paragraphs of it!) Ref:http://en.wikipedia.org/wiki/Prima_facie Ref: http://legal-dictionary.thefreedictionary.com/prima+facie Ref: Criminal Prosecutions Investigation Act: http://www.legislation.gov.uk/ukpga/1996/25/contents
  4. Oh yes I did read that - thanks. Useful link for others too perhaps. I'll read it through again. There was a reason why I felt it was't applicable to me, I think because this land was not deliberately being put to the purpose of parking... so they were just deliberating whether the edge of the road was the barrier or the neighbouring boundaries... in determining if the offence was applicable in that case. I probably made some notes on it too. I'll be back later this evening perhaps
  5. Yes. I think in most instances a Court would agree with that, where there is parking on the 'road' itself... where for example the carriageway surface has been painted with bays. (Despite the Lords saying once you mark out a bay that stops being a road! That specific point needs testing in Court) That is the reason I parked where I did - I considered the parking along the carriageway itself to be 'public road'. I think that this might be an erroneous approach where dealing with a piece of land that was constructed specifically for parking. Because then the land in question was created with a purpose other than being part of a highway. In my case the pavement and verge had been ripped up, resurfaced with new edge stones placed all around and bays marked out on them. These are in clusters of 8-12 parking bays at a time on my road - and in many cases have a small fence all around them so people cannot drive up onto the grassed open spaces... this fence is an important feature (missing on my particular parking area) as the fence in those examples physically stops people being able to use the verges as a road - you cannot drive along them. That also implies the areas are not intended to be used as part of a 'highway' by cars at least. Many grey areas there. Of course it is essential that I emphasise that I also had letters from the 1980s where the Council describe it as a parking facility for the residents. (Readers: check your local councils planning archives if any land is in question - don't reply only on Highway Agency & DVLA. Historical documents carry a lot of weight in Court) So, I my case I was effectively arguing arguing it was: Boundary - Pavement - Street Parking - Carriageway - Car Park - Open Green Space - Footpath - Boundary No I argued the two definitions in each Act are presented ONLY to assist in the interpretation of the applicability and offences created in each respective Act. So that definitions in VERA are given for interpreting VERA and that definition is unhelpfully vague. From there I argued that there we have to try and understand what is INTENDED by the use of the term 'Public Road' rather than reach dogmatically for any other Act that has a definition to suit my own or the DVLA's arguments. I argued we have to start by considering what VERA is... because Courts should not create new effects in Laws, they are there to interpret Legislation as it is written and not to assume that because you can find a definition from somewhere that potentially widens the scope of the law, that this must be allowed. In VERA dealing only with vehicles for which Vehicle Excise Duty was applicable, Parliament itself was clearly narrowing down the definition of where the law should apply to places where people are likely to be using cars. I think the extension of that from 'roads' to all sorts of other places was not originally envisaged by Parliament - or they would have used a broader definition. I accepted that 'Public Road' in VERA was so vague that we all had no alternative but to look elsewhere - but in seeking a clearer definition with some legal precedent we had to always bear in mind that when attempting to apply it to VERA we should be careful it is only helping us understand VERA rather than effectively transforming VERA. I argued firstly the Schedule 2A definitions and language could not be disregarded, especially in light of what the DVLA's own documents said they inferred. (see PDFs) I agreed that Section 192 could provide some clarity and I accepted that there is case law that states road may be viewed as 'highway' which will encompass the carriageway, footpaths, verges... the relevance of Clarke vs Kato is that is describes how once you can determine there is a parking bay, it is no longer possible to claim it is part of the carriageway ...and of course not part of the pavement and verge either. They specifically discussed the carriageway because in many cases in car parks there is really one continuous surface and the only thing that creates a distinction between 'carriageway' and 'parking bay' are painted lines. So I was not really arguing that only the carriageway is 'road' - I was focusing in on the critical facts in the case - that where the carriageway and parking are clearly separate things Clarke vs Kato should apply. The same could be true for a hypothetical parking space right in the middle of a grass verge ...the verge may be 'highway' but the parking space is distinct from it. In my case there were a number of physical features, such as the fact the edge of the carriageway was clear from the position of drains, that the parking area was over a large kerb, etc... So the 'edge' of the carriageway separating it from from the car park is very clear. I was also arguing that the use of 'Public Road' in VERA rather than Highway (not used once) seemed quite deliberate, especially when you consider VERA was written 8 years after the RTA and has been amended many times over the 20 years it has been around. Parliament clearly had a reason for thinking VERA needed some limitations compared to the RTA. If not, there only needed to state "Road shall have the same meaning as in RTA 1998" Interesting - in fairness to you and others, I will have to go and read that case before commenting. I may have seen it before as I read just about every relevant piece of legislation and case history I could find over the last 9 months... It does make me wonder why the DVLA did not bring this piece of case law to court? Perhaps this case will apply to most people because conventionally this is how most roads are laid out - but it may not always be applicable if the circumstances are factually different. Nonetheless, people should read cases that are 'close' to their own and see how the law operates before jumping to conclusions. Again, the Courts have to decide in the facts of each individual case - bearing in mind the precedents or case law that may be relevant... So I will look at that case later when I get some time and we can compare notes! Do you have a link to the judgement for "Alun Griffiths Ltd v DVLA"?
  6. Thank you, Silverfox. I think we both appreciate that many people now and in the years to come, will visit this site in a rather desperate need for help and advice. The last thing folks need is to see people simply bickering and getting personal. I think we are both mainly concerned to get to the truth and how the law should function rather than 'win' an argument. For my part I want to try and leave behind a thread that will hopefully help a few people who are struggling to deal with the DVLA in this particular situation - and Raykay's challenges are actually helpful in that regard ... he is a more formidable opponent than the DVLA's Prosecutor!
  7. 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. See above. 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: "road" (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 , Ref: http://www.legislation.gov.uk/ukpga/1988/52/section/192 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. Ref: http://www.legislation.gov.uk/ukpga/1988/52/section/5 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 "." Ref: http://www.legislation.gov.uk/ukpga/2008/9/schedule/45 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..." Ref: http://www.legislation.gov.uk/ukpga/1988/52/section/25 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 [1958] 1 W.L.R. 1106 it has also to be a road. In Oxford v. Austin [1981] 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 [1932] 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
  8. I came home from work today to find my car had been returned from the pound... they even kindly placed it back in exactly the same parking bay! So far, not a single apologetic word. I guess I'll have to make sure they feel very sorry indeed.
  9. Disgraceful arrogance!! Factually incorrect too, as Parliament decides - point that out next time! Sadly its a very common attitude among the Govt Agencies. They are full of nasty little people feeding off the crumbs of power falling from higher tables. It is a shame you did not record that statement. You can you know - it's not illegal (I don't want people to post on that - I know for a fact as my bro was a fraud investigator). Public interest, investigation of potentially unlawful activities, maybe you have terrible memory and want a 'word perfect' record of your conversation - it is justifiable on many grounds. It is the "21st Century equivalent of quill and ink" as one Judge I met once put it when I was presenting some very damning recorded evidence against a bunch of (alleged) racists in an Employment Tribunal, where I was an unpaid advocate. I just love taking on bullies! Anyway, I usually tell people I am recording them, partly out of courtesy and partly because they tend to stick to the facts when they know... but this led to DVLA staff slamming the phone down (Hello RICHARD at wheel clamping!!) You can prevent this evasiveness by not disclosing that you are recording... You really do not need to, ESPECIALLY once their system has stated "this call may be recorded for security and training purposes". You're bloody right it will be! In actuality when I asked them if the call was really being recorded by the DVLA they always said the calls were not recorded. When I requested all my personal data I included voice recordings and did not receive any. I think they try to scare folks into thinking they better not lie as they are "being recorded" but actually do not record conversations so you cannot prove you have been lied to/given false information/insulted (delete as appropriate). Personally, I record ALL calls with ALL government agencies and normally request correspondence in writing rather than calls... no matter who. Simply because over the last decade I have been lied to so much by people who are largely unaccountable. (UKBA and Home Office were unbelievably incompetent and dishonest - even destroying evidence!) People like these in Govt Agencies will deny everything they say... unless you can prove it. In doing so you prove not only you are telling the truth - but they are a cowardly incompetent liar exploiting an abuse of power After all, what is 'power' if you cannot exercise it?! I have observed if you give a man a whistle he will blow it all day long... giving a little nobody from some crappy town the 'power' to wreak bloody havoc in the life of others results in ...well The Parliamentary Ombudsman call it 'Maladministration'.
  10. DVLA/NSL may have thought this was how to look at it... but a Court decided it wasn't. DVLA decided not to appeal against losing my case... if they are so sure of the law, why not fight on? I understand your point though - the term 'highway' is considered by many people to be a 'catch all', especially when people see the 'any public place' part (which shouldn't apply in Section 29 VERA cases). Unfortunately, after 9 months of reading forums and reading legislation it seems many people can't tell the difference between different terms and the limits to where they apply... certainly the DVLA and NSL cannot. (They have the additional problem of not understanding the Finance Act 2008 properly, presuming it gives them God like powers) Where I parked was 'considered' by a Court, with full regard to both the definitions in VERA and RTA, who determined without any caveats that it was not part of the road. They even held up a photo of the car in the parking space and said to the DVLA prosecutor "This is NOT a road". The seemed pretty sure about it The reason: because it cannot be a road. It is a parking area ('Car Park')- and therefore cannot be regarded as part of the road because judicial precedence (Clark vs Kato) has laid down that parking areas cannot be considered 'road'. VERA does not make any such definition - which is part of the problem - it merely says 'Public Road' and in the first instance it must be a 'road' (it makes no use of 'highway'). Then the extent to which places may be considered part of the road by a Court will probably be drawn from Section 192 definition in RTA. In many cases the fact there is 'road' is indisputable and the RTA definition will allow the definition to include the pavements and verges, which will in most cases encompass everything from 'fence to fence'. But not in every case. This issue arises that occasionally, some pieces of land may exist between the furthest boundaries of the highway that are not road. I can think of many examples, such as in London the small private gardens which are not highway and sit between the far edges of the highway where it reaches the boundaries of private property. These are usually fenced and cannot be driven through and therefore cannot be part of the highway, even if they are council owned... Also access to underground toilets, which I have seen in London and Manchester, which are situated in the middle of a road. these cannot be driven over and therefore cannot be a road. Phone boxes on the pavement and grass verges... are they part of the highway too? Obviously not - these small patches of ground have been dedicated to a purpose OTHER than a road/highway, stop functioning as a place that can be used as highway and therefore cease to be any kind of 'road'. In my case the land in question was put to another purpose over 30 years ago... it was turned from pavement and verge into a parking area. It is a council owned car park, created for the residents of my road (as the council wrote in letters I presented the court from 1980s). So where Section 29 offences in VERA are concerned the land in question will ALWAYS have to be a 'road' to apply - and in the majority of cases it may be so, by extending the definition with Section 192 RTA. However... I am certain there are cases like mine, where the assumption has been made that a piece of land that is between the furthest edges of the 'highway' is presumed to therefore qualify as road, but is not road. I was certain about this - but the DVLA were incapable of understanding the concept that right in the middle of a 'highway' there are pieces of land that cannot form part of a road - because of their purpose and characteristics do not allow them to be used as road. Ultimately, whether it is a 'road' or not must always be determined by examining the facts in Court, applying the 4 tests laid out in Clarke vs Kato. This piece of land failed those tests. Furthermore by relying on the RTA for a broader interpretation of 'Road' the DVLA then became exposed to the fact that RTA itself speaks of 'parking places' as separate to 'roads', even going so far to describe a 'parking place provided by a local authority' (like the one my car was in!). 25 Tampering with motor vehicles. If, while a motor vehicle is on a road or on a parking place provided by a local authority, a person— (a) gets on to the vehicle, or (b) tampers with the brake or other part of its mechanism, without lawful authority or reasonable cause he is guilty of an offence. Ref: http://www.legislation.gov.uk/ukpga/1988/52/section/25 If I was in a 'local authority parking place' - or any other type of car park - Clark vs Kato applies. The DVLA 's reliance on Section 192 of RTA ensured that Clark vs Kato became the decisive issue in the case - and that is a judgement from the highest court in the land (at the time) which is binding on all lower courts. All I had to do was persuade the court the car park I was parked in - was a car park! I am still amazed the DVLA thought they had any chance of winning. I should maybe upload some of the exhibits I presented the court which would show what an easy argument it is to show a parking area is a car park and not a road ...or a lay-by!
  11. Yes I think I may have come across that too in the research I did. The general view on this seems to be its boundary to boundary as you say - derived from Section 192 of RTA rather than VERA's own definition. However, things can theoretically exist between the two edges that may not form part of the road that are NOT highway In the case of the JCB (or whatever it was) that was parked up over the crash barrier they assumed that land beyond it was not road because no one drove along it and the crash barrier formed the extent of the road... However, while I think it was rather extreme to take that to court - they did - and the critical fact seems to be that the land while couldn't be used as road, the crash barriers were only a safety feature and not a boundary. Also the land was not dedicated to any other specific purpose, such as parking - unlike my situation - so was considered verge and therefore part of the road. Similarly, people have been prosecuted for parking 'the other side' of yellow lines... which is a misunderstanding of what they represent as the effect of the yellow lines, while they may be painted on the carriageway, actually extends to the edge of the highway - usually the nearest boundary. Anyways - in my case, the area in question is surrounded by places that do form part of the 'highway' - it has the carriageway of the 'road' itself, lined with grass verges, pavements and green open spaces. All of those are maintained at public expense... although not all from vehicle duty I am sure. As 'adopted highway' - the highways agency are apparently responsible for maintaining it, but they seem to subcontract the local council for cutting the grass and road sweeping etc... it all seems a bit confusing in determining who does what and therefore who 'owns' what. The day I saw my car was clamped I went to Police to ask if it was lawful. After explaining it's location they actually said probably not!! The duty officer showed me a website provided by West Yorkshire Police that Hampshire Police can use - when he searched for 'definition of a road' he found a page which detailed how Clark vs Kato applied which he said was definitive for policing purposes in deciding if an offence happened on the road or not. He kindly printed that out and I went home to read the case carefully. So, having swotted up and laid out my case - when the DVLA responded to my first complaint they included what I refer to as the Pink Map - where adopted highway is shown in pink. The guys that make the maps of adopted highway had clearly coloured everything that was not private property in pink, obviously assuming it was all maintained by Hampshire Highways. In doing so they coloured in areas that were clearly not roads... although they may be maintained by them, such as the parking court at the rear of my property. Had I parked there I am sure they would have clamped too - but it is definitely not possible to call it a road or highway. The reason folks do not park there is the total lack of lighting which has led to vandalism in the past. Now that parking court area was an interesting anomaly - it showed that for the purposes of maintenance and perhaps some other liabilities (trimming vegetation) Hampshire Highways were considered responsible... but at the same time it could not possibly be viewed as highway - it fails EVERY test you could imagine applying. Could it in fact be BOTH maintained at 'public expense' and NOT a 'road'? This made me dig a lot deeper in my own research and to find that Clark vs Kato was going to be critical in my case. Now I had always assumed on my basic knowledge of such things, the parking area I was in should be ok - but I didn't know exactly why. I knew from my days as a teacher when I had a bump in the college minibus that there was a big fuss about insurance issues because it was 'not a road' as far as the insurance policy was concerned... interestingly was shortly after the Lords' ruling, but I knew nothing of that back then. Now I know that regardless of who owns the land or how it is maintained, the parking court and the area of land that I had parked on is not road for the purposes of RTA and to the extent that VERA derives definitions from RTA it is not a road under VERA either. This parking area is maintained by public funds... but then, so are all council car parks. That is not enough to turn it into a road. The council I think is hoping to keep the notion going that these are 'lay-bys' afloat for their own convenience - but they will be easy to challenge. They like the fact that calling them lay-bys means they can prosecute against cars that being advertised for sale on the roadside. Its a legitimate aim but they shouldn't pervert the law in pursuit of it... Take for example that they install disabled parking bays in these 'lay-bys'... I have photos of SINGLE car bays that are totally dedicated to a disabled bay. To get a disabled parking bay you have to apply to the council and they will put one as close as they can to your house. And this makes it associated with a dwelling - especially where it is a single disabled bay on its own as no one else is likely to use it. Now if you can keep a car in a disabled parking bay, day in and day out with no problems... what happens if you put a piece of paper in the window with some numbers on?? I'll tell you what happens - Magic Words come into effect and now the same car in the same place it always sits is suddenly now 'obstructing the highway'. If that seems odd - I would argue its not the real world that is at fault - its the application of legislation that is probably wrong.
  12. How does it go..?? 'To err is human but...' to really mess up you have to employ mindless dogmatic cowards. Something like that
  13. Extract of my 'Skeleton Argument' relating to 'Public Road vs 'Highway' used in Southampton Magistrates Court: Case 1400515280 D A Eadie v DVLA ------------------------ 1. I have committed no offence under Section 29 of the Vehicle Excise and Registration Act 1994, nor any other part of that Act because for the period in question the vehicle was subject to a Statutory Off Road Notification and was not used or kept on ‘public road’. 2. Consequently the DVLA’s action of clamping and impounding my car was unlawful and their prosecution of me is also unlawful. The Issue in this Case 3. The key issue in this case is whether the parking area where my car was located can be legally considered as ‘road’ in order to fulfil the required definition of ‘public road’ under VERA for an offence to have occurred. ~ ~ ~ ~ 5. In my defence I rely principally on the 1998 decision of the House of Lords in ‘Clark and Others v Kato, Smith and General Accident Fire & Life Assurance Corporation Plc’ [1998] WLR 1647, [1998] 4 All ER 417, [1998] UKHL 36, where it was held that a car park was not a road.[1] 6. I have provided of copy of the entire decision for the Court to refer to (the Lords reasoning and commentary is valuable in this case) however I shall highlight where the Lords approach and commentary is relevant to my case. 7. This judicial precedence creates an onus on the prosecutor to prove beyond all reasonable doubt that the parking space where my car was located is in fact not a car park but a road. With the assistance of dictionary definitions and images I shall detail how the land in question is undoubtedly a ‘car park’, as I have always claimed, by following the principles used by the Lords themselves. ~ ~ ~ ~ Points of Law 27. I am going to follow the same approach used by the House of Lords in their decision. They considered the language of the legislation and language as it is normally understood and carefully evaluated the characteristics of the places involved. 28. As the Lords explained in their decision, is not for any Court and certainly not the DVLA to create new effects for laws through the distortion of language or unreasonable interpretations of legislation. 29. If the law fails to provide the DVLA with an unambiguous basis to prosecute me, the DVLA should not ask this court to accept a distorted use of language but instead ask Parliament to amend the legislation. ~ ~ ~ ~ Interpretation of VERA 54. In the first instance VERA should be approached literally. No assumption should be made that words are used erroneously or that words have meanings other than their ordinary meaning. However, if having done that we are unable to find a conclusive outcome, or that the outcome would be absurd, we should consider a broader interpretation based on the purpose of the legislation. 55. It is clear that a ‘Public Road’ has to be a ‘road’ for Section 29 of VERA to apply. We therefore need to be able to determine what constitutes a road. The need to look for a definition from other legislation must be driven by a need arising from VERA itself as I am not being prosecuted for alleged offences under any other Act. 56. Firstly, I am not convinced we necessarily need to look outside of VERA for a further definition, as VERA contains clear exemptions relating to land associated with a dwelling. I have provided contemporaneous evidence that the parking area was provided over 30 years ago for the purpose of residential parking. [31] 57. Additionally we can look at how the DVLA themselves have interpreted VERA in their own internal documents. ~ ~ ~ ~ 89. I hope to convince the Court that the DVLA have therefore sought to rely on an Act where the highest court in the land has determined it cannot apply. 90. I call the Court’s attention to the fact that within VERA: The term ‘road’ appears over 200 times The term ‘public road’ appears 29 times The term ‘on a road’ appears 17 times The term ‘on the road’ appears 4 times The term ‘highway’ does not appear once in VERA 1994. Page 16 of 24 91. VERA has been around for 20 years and has been amended many times. Had legislators meant ‘public road’ to mean ‘Highway’ I consider they would have now amended it to say so. 92. In contrast, we can compare an example of the wording of the Road Traffic Offenders Act 1988, where Section 4(6) states: “In this section “parking place” means a place where vehicles, or vehicles of any class, may wait and “designated parking place” has the same meaning as in the Road Traffic Regulation Act 1984.” 93. This makes it clear that when legislators intend for a definition of a term used to have the same meaning and interpretation as one given in another earlier Act of Parliament, they can make explicit reference to it. 94. I argue that the total absence of the term ‘highway’ from VERA, which it should be remembered was created eight years after the 1988 Act and makes no reference to that Act or use of its definitions, indicates that it was not the will of parliament for ‘road’ to mean anything more than its usual common meaning. 95. I do not believe that VERA was intended to apply beyond the normal understanding of the word ‘road’, specifically limiting it further to only those roads that are ‘maintained at public expense’ because it should obviously only apply to roads that are paid for by the tax collected. What the Road Traffic Act 1988 says: 96. From the outset of my dispute with the DVLA, from July 2014, they have claimed that they could overcome the apparently narrow definition in VERA by relying on Section 192 of the Road Traffic Act, where the definition for road is given as: 192 General interpretation of Act. “Road” a) 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 97. The DVLA and their contractors repeated the bold, yet obviously erroneous assertion to me, that anywhere that was open to the public could be a ‘road’ and therefore even parking spaces could be a road if they were open to the public. That is nonsense and has no basis in law. 98. As I have stated and as the Lords also observed, the definitions provided in the Road Traffic Act are intended for that Act alone. Its definitions, which are required to cover a variety of offences which require a broader definition of ‘road’, such as drink driving, parking on grass verges and central reservations are intended to serve the purposes of the Act. The stretching of the definition to include places ‘to which the public has access’ is intended under that Act to deal with dangerous 39 Exhibit DE38 Road Traffic Offenders Act 1988 Section 4(6) Page 17 of 24 driving where the definition of ‘road’ or ‘highway’ might not readily apply. 99. I also point out that surprisingly, the 1988 Act is so well drafted and precise that it encompasses offences as obscure as: - holding onto a moving bus while it pulls you on rollerskates - flying a hovercraft on common land, unless saving a life - giving a false name after being stopped for inconsiderate cycling - allowing your dog on the road without a lead, unless you are driving sheep to market 100. All of those possible offences can be clearly and unambiguously identified in the provisions of the Act. 101. However the DVLA prefer to rely on the definition in the 1988 Act not because it is more precise but because the term ‘highway’ is less precise and therefore open to broader interpretations or even manipulation. It is because offences under the 1988 Act can include places that are not normally considered part of the road in the everyday sense of the word, that the DVLA wish to employ it in prosecuting me. 102. I think there is something rather sinister about a Government Agency that is empowered to prosecute me for the alleged offence under VERA trying to make use of a vaguer term from other legislation to obtain a conviction that would otherwise not be possible. That cannot have been the intention of Parliament and in my view the DVLA are attempting to gain and exercise powers they have not formally been granted by law. 103. Nonetheless, in ‘Clarke vs Kato’, Lord Clyde also accepted that the Road Traffic Act was an acceptable source for a definition of ‘road’, primarily because of the nature of the cases they were reviewing were based on that 1988 Act. 104. He admitted that the definition was broad for the specific purpose of prosecuting the wide range of offences under that Act. It does not follow that the definition given in Section 192 of that act can be assumed to safely apply with respect to the purpose of any other Act. 105. The second problem with the DVLA seeking a definition in RTA 1988 is that, as pointed out in ‘Clarke vs Kato’ that the RTA 1988 makes explicit use of the term ‘parking place’ as being distinctly separate to a ‘road’ in Section 25 where it reads: 25 Tampering with motor vehicles. If, while a motor vehicle is on a road or on a parking place provided by a local authority, a person— (a) gets on to the vehicle, or (b) tampers with the brake or other part of its mechanism, without lawful authority or reasonable cause he is guilty of an offence. (Incidentally I consider that this is a criminal offence that the DVLA have committed against me.) -------------------------- I think it may help people more if perhaps I posted the full Skeleton Argument and Exhibits as they will make more sense... the case in my defence was slowly built up on a series of indisputable facts to get to the point where there is no room for the DVLA to wiggle... If anyone reading this thread would like to see it - just shout out!!
  14. Yes it was important to focus on that precedent because it dealt very specifically with the question at hand; Is something that LOOKS like a car park, is USED as a car park and was described by the council 30 years ago as somewhere the residents should PARK THEIR CARS, actually a car park... if so then it cannot be a road. But Clarke vs Kato also describe the 4 tests... does it lead from one place to another, have defined edges, etc... You have to remember I was being prosecuted under VERA. VERA only has 'Road' and 'Public Road'. It doesn't use 'Highway' once in the whole act and in 20 years has not been amended to elaborate further. The DVLA turn to Section 192 of RTA 1998 to try and widen the scope... but this created 2 obstacles for them: 1. Clarke vs Kato, which was dealing with a case under RTA, states that when 'road' appears alone it cannot mean more than its normal meaning. (so the detailed possible extensions of 'Highway' in other Acts may not automatically be applied to the interpretation of VERA where we are seeking to clarify only what a 'Road' is.): "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?" Well it clearly wasn't a road by any normal understanding of the term... the question about Highway being somehow all inclusive is irrelevant here, unless it is actually a road there is a problem going further... we can't simply see if we can squeeze it into the meaning of 'road' we have to also consider what else it may be... could it be a car park instead?? The DVLA error was to start out assuming you can call things 'Road' and they magically become road... The Lords commentary adresses this: "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." 2. If we want to go shopping through other legislation for definitions, such as RTA 1998 or others we cannot do so without accepting the other implication - which is Roads and Parking are clearly considered separate things through a number of relevant Acts: "The distinction between a road and a car park which is reflected in the ordinary use of words is reinforced by a consideration of the language of the legislation. Section 25 of the 1988 Act which prescribes the offence of tampering with a vehicle starts with the words "If, while a motor vehicle is on a road or on a parking place . . . ." This plain recognition of a distinction between the two things cannot, as was suggested in argument, be put aside as simply a fortuitous anomaly in a consolidation statute, particularly when one finds the same distinction in the earlier appearance of the provision in section 29(2) of the Road Traffic Act 1930. Indeed the recognition of parking places for vehicles as a distinct matter can be found in section 68 of the Public Health Act 1925 where a specific definition of the term is given. A corresponding distinction can be seen in the language of the Road Traffic Regulation Act 1984 between roads and parking places. While there is a difference in the precise terms of the statutory definition in that Act from those in the Act of 1988, there appears to be no difference intended as regards what is meant by the words "any other road to which the public has access." 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." Clarke vs Kato comments on this issue mean Courts must therefore view Roads and Car Parks as two separate things from the outset. the question then remains simply was the car in one or the other? Not necessarily - as I said it cannot be assumed that the full width of interpretation possible in RTA can be applied to VERA. The reason is that a definition in an Act of Parliament is there to serve that Act alone... it is there to support the interpretation of that Act rather than another Act... hence: "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." But 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." What is the purpose of the Vehicle Excise and Registration Act? Attempting to stretch any definition offered in VERA or available elsewhere must be driven by a NEED that stems from the purpose of VERA rather than the convenience of obtaining an easy conviction for the DVLA prosecutor. So, the words in definitions are there to support that purpose and any stretching of their interpretation must be in pursuit of that purpose not simply to achieve a win in Court. The DVLA mistake was thinking that using 'Magic Words' could transform a 'car park' into a 'lay-by'. " 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." A definition of 'road' cannot be stretched so far that it is used to describe something that has it's own name - like a car park. Especially where legislation already defines that as a separate thing! Such legalistic and cynical attempts to pervert the meaning of readily understandable and unambiguous words failed to impress the Court. --------------- All quotes from judgement in: Clark vs Kato [1998] WLR 1647, [1998] 4 All ER 417, [1998] UKHL 36 http://www.bailii.org/uk/cases/UKHL/1998/36.html
  15. Correct - Clark vs Kato is not a guaranteed 'get out of jail' ticket for everyone... I am ONLY commenting on MY OWN case so others can understand how and why I was successful in defending against the prosecution. I am not very interested in playing out hypothetical untested interpretations. I do not think these are very helpful to people visiting these forums. I have spent 9 months reading the forums before joining and posting so I have seen and read a lot of guff. Facts and experience would be valuable over opinion really. I am only trying to show what happened in my case in the REAL WORLD. (sorry thats not 'shouting' but 'maximum emphasis') I know my case is not a 'precedent', (you do not need to repeat that to me again!) However, it is a legal test in Court... the DVLA failure to successfully prosecute me was based on the facts and the law, not a whim of the Court. The court spent almost 2 hours going over the points of law. So the case I put forward should be of value to people in very similar circumstances. For Clark vs Kato to apply people will need to have a case where the DVLA have clamped their car or are threatened for prosecution for being on land that normally they would be able to park in... so readers, PLEASE read the DVLA PDFs where you can see you may leave a SORNed car in a public car park, housing association car park, council car park, private car park, retail car park.... The DVLA's own guidance to staff and contractors addresses all the different places.... If the place is not 'Public Road' they may not take action against you. A place with series of parking bays such as mine was, is a Parking Area that is not on the carriageway and it has been dedicated to parking only by painting bays out over the whole of the area... so it is not a lay-by either (there is precedent that 'lay-by' may be considered Highway')... the DVLA may not clamp there. Unfortunately, due the vagueness of this it is not helpful commentary. Yes - it 'may' be... and 'considered' by whom? The DVLA or a Judge in a Court? In my opinion NOT the DVLA - they may exercise pseudo-police powers by they cannot judge and convict anyone! Of course in the individual cases brought to Court the facts will need to be looked at and if those facts determine your vehicle was in an area normally used as a car park - whether public or private, it was not on a Public Road. Furthermore if that car parking area was ALSO associated with dwellings the DVLA should not have clamped you either. In my case: - I was NOT on Public Road - The parking area was ALSO associated with the dwellings. That was proven with evidence rather than frothy interpretations of the law I merely demonstrated that the evidence fit the law and so the relevant law and precedent applied. The DVLA twist words to mean things they do not and I would urge readers to use English as it is normally spoken and not play the DVLA game of 'Magic Words'. The Clark vs Kato ruling also said that where the term 'road' is used alone it should retain its normal meaning and not be extended to include 'any other public place'. If you are talking about a place that is used for parking only and is marked out as such... it is a car park. A car park cannot be a road. I think to really address this in full context of my own case I may have to upload my skeleton argument - it is methodical and goes through each possible obstacle step by step. Correct quote - but we are disagreeing on the emphasis. As I explained the operative word in my opinion (and in my case) was 'NORMALLY'... Of course on occasions other people may park there - but the residents cannot forfeit rights because of that. And as I keep repeating, people should read the DVLA's own internal guidance in the PDF's I have uploaded. Looking at the law alone is fine, but the interpretation for the DVLA policy is in print... in those PDFs. It will not impress the Court if they try and present an argument that directly contradicts their own internal policy documents
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