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Wondering about the legality of taking your car.


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I have recently been in touch with someone regarding the police taking their car because they were driving without insurance.

 

It turns out that they did have insurance which was only just bought less than a week before

but the insurance company had not updated the details with the central computer.

 

I actually wondered if the police had the legal right to take possession of your car

or can you refuse to hand over the keys and force them to get a court order to take possession?

 

If the car is in a position that can be construed as "parked" when you are stopped,

 

can you refuse to hand over the keys and have someone else move the car for you later?

 

To me, taking your car because it is not taxed, MOt'd or insured, (or any combination),

is no different to a TV license inspector taking your TV because you don't have a TV license.

 

I believe that this practice by the police is unlawful at best.

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If they have reasonable grounds to believe that the vehicle is being driven without insurance or an unlicensed driver, the police can seize the vehicle.

 

 

s.165A, Road Traffic Act 1988.

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I have recently been in touch with someone regarding the police taking their car because they were driving without insurance.

 

It turns out that they did have insurance which was only just bought less than a week before

but the insurance company had not updated the details with the central computer.

 

I actually wondered if the police had the legal right to take possession of your car

or can you refuse to hand over the keys and force them to get a court order to take possession?

 

If the car is in a position that can be construed as "parked" when you are stopped,

 

can you refuse to hand over the keys and have someone else move the car for you later?

 

To me, taking your car because it is not taxed, MOt'd or insured, (or any combination),

is no different to a TV license inspector taking your TV because you don't have a TV license.

 

I believe that this practice by the police is unlawful at best.

 

"To me, taking your car because it is not taxed, MOt'd or insured, (or any combination),

is no different to a TV license inspector taking your TV because you don't have a TV license."

"I believe that this practice by the police is unlawful at best."

 

 

A TV license inspector is an employee of a private company, and can't seize a TV : they can report a possible offence for prosecution, can only enter premises against the occupiers' wishes if they have a warrant, and even then have no powers to seize a TV.

 

A police officer is a sworn "office holder", can enter premises without a warrant in some circumstances, and can seize a vehicle they have reasonable grounds to believe is being driven uninsured.

 

For this reason I suggest that comparing police officers with TV license inspectors suggests (at best) a tenuous grasp on legal reasoning .....

 

The seizure power derives from primary legislation : the road traffic act 1998, with S165A being an amendment under S152 of the Serious Organised Crime and Police Act 2005

 

http://www.legislation.gov.uk/ukpga/1988/52/section/165A

http://www.legislation.gov.uk/ukpga/2005/15/section/152

 

You consider it "unlawful", but Parliament don't.

 

Until you make the law in place of Parliament, I'd prefer to go with (and/ or offer advice based on ) what the statute(s) says when deciding what is and isn't "lawful".

 

If you don't work in law : I'd advise you stick to your current job, or at least check statute law before stating something is "unlawful".

If you work in law : can you let us know which firm(s) to avoid?

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If you don't work in law : I'd advise you stick to your current job, or at least check statute law before stating something is "unlawful".

If you work in law : can you let us know which firm(s) to avoid?

 

Maybe if you had taken the time to read my post properly, you would have noticed that I ASKED if you could refuse to give your keys over.

You would also have noticed that I said "I believe" this practice to be unlawful since I didn't know of any statute that said otherwise. However, it wouldn't be the first time a law has been repealed because it violates people's human rights.

 

I believe we still have a law that states that you are "innocent until PROVED guilty". Since when has a police officer been given the power to be judge, jury and executioner? He can only gain evidence to show that you MAY be guilty, it is for a court of law to decide whether you are or not. In the case of my friend, he was innocent and it was a screw up with the computer system that led to him having his car taken away along with his tools and PPE for work because it was far too much for him to carry. He was then left miles from any public transport route to make his own way to his destination. As it happened, it was shorter for him to get home than to get to work. He had to take the day off to sort it out by taking his insurance documents to the police station and then wait to recover his car from the impound yard 3 miles away, which resulted in a days loss of pay which he has never been compensated for. Since the officer who did this could not prove beyond all doubt that he had no insurance, a producer slip was all that was required to allow him to produce his insurance documents within 7 days. As such, this law is allowing over-zealous police officers to take cars from owners who are actually driving legally by exploiting a loophole in the computer system.

 

Now maybe you understand the reasoning behind my belief that this practice is unlawful? Regardless of the statutes you linked, I still believe that it is a violation of your basic rights of being "innocent until proved guilty" and therefore unlawful. For this reason, I have suggested to my friend that he seeks legal advice to see whether it is worth taking it to the HR court. If successful, the HR court could well instruct parliament to repeal or make suitable amendments to this law to prevent this happening again. Parliament may make laws but it doesn't mean those laws can't be unlawful in themselves.

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Maybe if you had taken the time to read my post properly, you would have noticed that I ASKED if you could refuse to give your keys over.

You would also have noticed that I said "I believe" this practice to be unlawful since I didn't know of any statute that said otherwise. However, it wouldn't be the first time a law has been repealed because it violates people's human rights.

 

I believe we still have a law that states that you are "innocent until PROVED guilty". Since when has a police officer been given the power to be judge, jury and executioner? He can only gain evidence to show that you MAY be guilty, it is for a court of law to decide whether you are or not. In the case of my friend, he was innocent and it was a screw up with the computer system that led to him having his car taken away along with his tools and PPE for work because it was far too much for him to carry. He was then left miles from any public transport route to make his own way to his destination. As it happened, it was shorter for him to get home than to get to work. He had to take the day off to sort it out by taking his insurance documents to the police station and then wait to recover his car from the impound yard 3 miles away, which resulted in a days loss of pay which he has never been compensated for. Since the officer who did this could not prove beyond all doubt that he had no insurance, a producer slip was all that was required to allow him to produce his insurance documents within 7 days. As such, this law is allowing over-zealous police officers to take cars from owners who are actually driving legally by exploiting a loophole in the computer system.

 

Now maybe you understand the reasoning behind my belief that this practice is unlawful? Regardless of the statutes you linked, I still believe that it is a violation of your basic rights of being "innocent until proved guilty" and therefore unlawful. For this reason, I have suggested to my friend that he seeks legal advice to see whether it is worth taking it to the HR court. If successful, the HR court could well instruct parliament to repeal or make suitable amendments to this law to prevent this happening again. Parliament may make laws but it doesn't mean those laws can't be unlawful in themselves.

 

Starting with 'producers' (HORT/1's) : "Since the officer who did this could not prove beyond all doubt that he had no insurance, a producer slip was all that was required to allow him to produce his insurance documents within 7 days. As such, this law is allowing over-zealous police officers to take cars from owners who are actually driving legally by exploiting a loophole in the computer system."

 

The rules to bring in confiscation were brought in precisely because 'producers' weren't controlling the issue of uninsured drivers. Your friend could have told the officer which insurer he was with, the officer could have called the insurer and confirmed it ; it seems odd that this didnt happen, which may have added to the officer's "reasonable cause".

 

Moving to "Human Rights" : I'm glad you are more of a human rights expert than me.

 

Which "human rights" court are you referring to?.

Rather than being so vague, someone with your expertise should be able to help us mere mortals by telling us which.

 

Judicial review (commencing) at the High Court?

The ECtHR?

Have you the support of a pressure group who believed you have reasonable prospect of success? If not, who is going to stump up the 20k+ for the human rights action?

 

But hang on : before it goes to court ; Which human right do you believe has been infringed that you want the court to rule on?

 

Are you claiming a qualified right is being infringed? A non-qualified right?

 

Thing is, a non-expert like me often wonders if people know what they mean when they start claiming "uman rights, innitt!", without knowing what they mean or how they could enforce them, and I'm glad an expert like you wouldn't fall into that trap .......

 

I can't see how the legislation could be found to be infringing based on the fact it is tempered by the officer being required to have "reasonable cause".

An officer acting without reasonable cause could lead to an action against them and/or their service, but wouldn't lead to the statute being at fault.

 

following your logic "innocent until proven guilty" the police wouldn't be able to seize cars even with reasonable cause.

By extension : they also wouldn't be able to arrest people for " reasonable cause" for an arrestable offence, since they haven't been found guilty.

A court couldn't issue a warrant for arrest either (since arrest comes before trial).

But the law seems to allow these

 

Here are some pointers to why:

HRA 1998, Schedule 1, Article 5(1)c allows arrest prior to trial

© the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

 

As for "innocent until proven guilty", you are quoting only part of the law.

HRA 1998, Schedule 1, article 6(2) notes:

"everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."

You'll note that this applies to everyone charged with a criminal offence.

 

Who was charged with a criminal offence? (And when : since the presumption starts when they are charged ...)

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Starting with 'producers' (HORT/1's) : "Since the officer who did this could not prove beyond all doubt that he had no insurance, a producer slip was all that was required to allow him to produce his insurance documents within 7 days. As such, this law is allowing over-zealous police officers to take cars from owners who are actually driving legally by exploiting a loophole in the computer system."

 

The rules to bring in confiscation were brought in precisely because 'producers' weren't controlling the issue of uninsured drivers. Your friend could have told the officer which insurer he was with, the officer could have called the insurer and confirmed it ; it seems odd that this didnt happen, which may have added to the officer's "reasonable cause".

He did and the officer ignored him.

 

 

Which "human rights" court are you referring to?.

Rather than being so vague, someone with your expertise should be able to help us mere mortals by telling us which.

 

Article 1 of the First Protocol: Protection of property.

 

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

 

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

 

The Government or a public authority cannot deprive you of your property unless the law allows this and it is necessary in the public interest to do so. The Government must strike a fair balance between the interests of the property owner and the general interest of society as a whole. If your property is taken away you should be entitled to compensation.

 

http://www.yourrights.org.uk/yourrights/the-human-rights-act/the-convention-rights/article-1-of-the-first-protocol-protection-of-property.html

 

 

following your logic "innocent until proven guilty" the police wouldn't be able to seize cars even with reasonable cause.

By extension : they also wouldn't be able to arrest people for " reasonable cause" for an arrestable offence, since they haven't been found guilty.

A court couldn't issue a warrant for arrest either (since arrest comes before trial).

But the law seems to allow these

 

Here are some pointers to why:

HRA 1998, Schedule 1, Article 5(1)c allows arrest prior to trial

© the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

 

As for "innocent until proven guilty", you are quoting only part of the law.

HRA 1998, Schedule 1, article 6(2) notes:

"everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."

You'll note that this applies to everyone charged with a criminal offence.

 

Who was charged with a criminal offence? (And when : since the presumption starts when they are charged ...)

The presumption starts with the removal of property. As such, this is automatically presuming the person is guilty of the said offence for which the penalty is removal of their property. Under such conditions, only a court has the right to judge a person guilty and remove their property so that they are unable to continue committing the offence. Suspicion, which is all the police officer can declare, is not suitable grounds on which to deprive a person of their property. The only time a police officer has the right to remove property from anyone is when owning or using said property is illegal, such as offensive weapons etc.

 

Arrest is simply detention of a SUSPECT for questioning and possible charging for later appearance in court and does not in any way presume guilt. However, there are laws regarding wrongful arrest and many people have been compensated for it.

However, in the case of offences such as the one I described, it is simply his word against yours. Also, since he can only consider you a SUSPECT and cannot legally find you guilty, removal of your property on the grounds that you MAY be committing an offence is what I would put under scrutiny here.

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Article 1 of the First Protocol: Protection of property.

 

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

 

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

 

The Government or a public authority cannot deprive you of your property unless the law allows this and it is necessary in the public interest to do so. The Government must strike a fair balance between the interests of the property owner and the general interest of society as a whole. If your property is taken away you should be entitled to compensation.

 

http://www.yourrights.org.uk/yourrights/the-human-rights-act/the-convention-rights/article-1-of-the-first-protocol-protection-of-property.html

 

You still haven't said which "HR court" you would suggest ...... Is this because you are quoting off a website with no understanding of the process?.

 

You've read those three paragraphs as meaning the police (acting for the Crown) can't seize a car under their statutory authority : I read them that they can, and here is why.

 

The first and second paragraphs are from the HRA 1998

http://www.legislation.gov.uk/ukpga/1998/42/schedule/1

 

You'll note this is a "qualified right".

The first paragraph sets out the right, the second the times when the right can be removed.

 

The third paragraph is their comment, which seems pretty accurate and consistent.

 

Human Rights is about balancing : your rights as an individual against society's rights.

 

If a case such as you are suggesting was brought for judicial review, I doubt the Administrative Court would allow it past the first stage.

The Government would note:

1) Uninsured drivers are a major blight on society,

2) "producers" weren't controlling the situation,

3) seizure, is thus a proportionate response, since it is tempered by only being allowed where "reasonable cause" is present.

4) the statute complies with "rule of law", being neither arbitrary nor unclear

5) as this is in primary (statute) law, and complies with rule of law (4), is necessary and proportionate (2-3) and is in the general interest of the public (1):

 

It complies with the requirements to allow lawful interference with the property rights of the individual.

 

I'll set out the exact steps from 'ex parte Daly' if you are claiming it wouldn't be a "rational, proportionate" way of controlling the problem of uninsured drivers...... but I hope you can see why I believe a HR action aiming for a declaration of incompatibility (HRA 1998, S4) would be futile, and seizure under the statutory powers isn't going to be "unlawful" without such a declaration .......

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Now maybe you understand the reasoning behind my belief that this practice is unlawful? Regardless of the statutes you linked, I still believe that it is a violation of your basic rights of being "innocent until proved guilty" and therefore unlawful. For this reason, I have suggested to my friend that he seeks legal advice to see whether it is worth taking it to the HR court. If successful, the HR court could well instruct parliament to repeal or make suitable amendments to this law to prevent this happening again. Parliament may make laws but it doesn't mean those laws can't be unlawful in themselves.

So you would like the law repealed and once again allow uninsured drivers by the thousands to infest our roads. All well and good until one of those uninsured drivers hits you or damages your property.

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If successful, the HR court could well instruct parliament to repeal or make suitable amendments to this law to prevent this happening again. Parliament may make laws but it doesn't mean those laws can't be unlawful in themselves.

I'm afraid this isn't the case. The UK follows the doctrine of what is known as 'parliamentary supremacy', which basically means parliament is the most powerful body. Human Rights are only incorporated into UK law through parliamentary legislation. The most the UK courts can do is issue a 'declaration of incompatibility' declaring that a particular piece of legislation is inconsistent with the Human Rights Act, but they have no power to disregard it.

 

 

The situation is different in the United States, Germany and some other countries where there is a constitutional court empowered to review laws passed by the legislature for compliance with a written constitution (which usually contains human rights provisions). This can't happen in the UK.

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s.165a of the Road Traffic Act 1988 gives a constable in uniform where he believes a car is being driven by someone without the correct license or without insurance the power to seize a vehicle.

 

All police forces will have solid policies and guidelines in regards to the actual seizure of a vehicle, including taking into account the human rights of the person in question.

 

If taking out a new insurance policy or a temporary policy, then it's always best to carry your documents with you for the first few weeks to ensure everything is updated on the police national computer (ANPR collects information gathered from the Motor Insurance Bureau/database and compares a vehicles number plate to the database, I believe the police use a service called MIDAS or something similar). When I renewed my insurance last week it took 4 days to show up on askmid, since taking the policy out and to this day I carry in my car my Certificate of Motor Insurance, valid mot certificate and my driving license and counterpart to fulfil the requirements of s.163 of the RTA 1988.

 

You could challenge, if you had very deep pockets that your human rights where breached under the Human Rights Act 1998 (Schedule 1) articles 1 and 6 and the European Convention of Human Rights (ECHR).

 

I don't know of any cases where this has been challenged at all, but unfortunately with motorists it's "Guilty until proven otherwise", even if the principle of law is innocent until proven guilty by a court of law and a trial by your peers.

 

You could write to the police force who seized your vehicle, but I don't think you'll be successful. The law is an arse, and I do agree that giving a police officer the power to seize a vehicle on the roadside before any due legal process is unfair, you've got to remember that in 90% of cases where cars are seized the police used their powers correctly to remove unlicensed and uninsured drivers from the road. These offences generally lead to other findings, and in the day and age of computers and ANPR, most law abiding motorists will never be stopped or come to the attention of the police.

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Always carry your current Certificate of Insurance with you, proving your cover is valid if you produce this to the police office and they seize your car for being uninsured because the database says it's not covered you can sue the police to recover your losses.

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Every natural or legal person is entitled to the peaceful enjoyment of his possessions.

 

Why should you be anymore entitled to 'enjoy' you insured car than you would a gun? If you think the police should be powerless to prevent you from driving an uninsured car what should they do if a gun owner started walking around town 'enjoying' an unregistered gun he possesed? Quoting human rights doesn't exempt you from obeying democratically introduced laws, if it were that simple I would be able to enjoy the bike I posess whilst cycling around the M25.

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The law is an arse, and I do agree that giving a police officer the power to seize a vehicle on the roadside before any due legal process is unfair, ....

 

 

The law isn't an arse, the old system of 'producer' definitely could be associated with that term.

 

 

Before seizure a driver was given 7 days to produce his insurance. If he was uninsured that meant he could continue driving for 7 days uninsured. If he failed to produce his insurance he was summoned to appear in court and that could take a few months so he could, again, continue driving while uninsured.

 

 

The law is always an arse until it's you or a close relative that get hit by someone not abiding by it.

 

 

To me, taking your car because it is not taxed, MOt'd or insured, (or any combination),

is no different to a TV license inspector taking your TV because you don't have a TV license.

 

 

That sounds like a good idea. I might mention it to my prospective MP in the run up to the next election.

Edited by Conniff
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