Debtor loses Crown Court appeal for assault and removing a wheel clamp.

[tomtubby]

Once again I find myself writing about the serious subject of debtors removing wheel clamps. The reason for this newer thread concerns yet another legal case that led to a conviction at Blackburn Magistrates Court.

 

With a serious criminal conviction being on the debtors history he decided to appeal. The appeal hearing took place last week at Burnley Crown Court. The case was dismissed and will no doubt be used in securing further convictions and most importantly the comment from the Judge will be of significance (more shortly).

 

The outline of the case is as follows:

 

 

The debtor; Sean Young, of Accrington had council tax arrears and received a visit from a female bailiff. The debtor refused to pay the amount requested of £430. She clamped a Volvo car - which he used. The debtor took photos of the vehicle being clamped. The bailiff left the property and returned 4 hours later to find that the wheel clamp had been removed.

 

Mr Young then produced a vehicle registration document saying the car belonged to his mother (the press article states that Mr Young used the vehicle....possibly he was the keeper). He refused to return the wheel clamp and claimed that he was 'protecting' his vehicle. An argument broke out and it seems that Mr Young then threw the bailiff down some steps injuring her. He was arrested by police officers and earlier this year was convicted at Blackburn Magistrates Court of assault and criminal damage to the wheel clamp.

 

He was ordered to do 200 hours unpaid work, pay £200 compensation to the bailiff, a further £200 compensation for the wheel clamp and £720 costs.

 

Despite having completed half of his community sentence he decided to appeal the conviction. The hearing took place last week at Burnley Crown Court but his case was dismissed by the judge.

 

Crucially, at the appeal hearing Judge Beverley Hunt stated the following:

 

“The car was not in need of immediate protection as he had four hours to pay. He didn’t try and do it by any other means than removing the clamp. He knew of the options, he knew he had other possibilities but chose not to use them"

 

The Judge ordered Mr Young to pay a further £225 in court costs (bringing the total amount of costs payable by him to £945).

 

http://www.accringtonobserver.co.uk/news/local-news/man-loses-appeal-over-bailiff-7618476

[tomtubby]

On 6th April the government implemented Part 3 of the Tribunal Courts & Enforcement Act 2007. This part of the TCE Act deals with the matter of 'taking control of goods' and the actual procedure (for 'taking control of goods) is outlined in Schedule 12.

 

At the same time the government released the Taking Control of Goods Regulations 2013 and with regards to the fees that can be charged, a further statutory instrument was also implemented on the same day. The new regulations are significantly different to any previous regulations and one major difference concerns dispute regarding the following situations:

 

The ownership or the goods taken (i.e: owned by a third party)

The value of the goods taken (i.e: goods taken (into control) that are significantly more that the amount of debt and fees)

Goods taken that are 'exempt' (i.e: goods that the debtor considers should be a 'tool of the trade')

 

If any of the above apply, the new regulations provide a REMEDY that must be followed by the debtor or 'third party'. This is a simple procedure that is outlined in parts 85 and 86 of the Civil Procedure Rules. Crucially, the decision on whether goods have been wrongly taken will rest with the creditor (i.e: local authority, HMCTS etc). What must NOT happen is for the debtor to make a decision for himself that goods should not have been taken and this is vitally important to remember in cases where a vehicle has been wheel clamped.

 

A second significant change to the regulations (and one that the 'advice sector' fought so hard for) is that if a wheel clamp is applied it should remain on the vehicle for a period of 2 hours. This is very important when considering the comment from Judge Beverley Hunt when dismissing the above appeal.

[tomtubby]

The legal position:

 

As mentioned above, schedule 12 of the Tribunal Courts & Enforcement Act 2007 (which was finally implemented on 6th April 2014) outlined the procedure that must be followed when enforcing all debts. Of huge significance with regards to wheel clamps is Section 68 of Schedule 12 which states very clearly the following:

 

A person is guilty of an offence if he intentionally interferes with controlled goods without lawful excuse.

 

Section 68.3 confirms as follows:

 

A person guilty of an offence under this paragraph is liable on summary conviction to:

 

(a) Imprisonment for a term not exceeding 51 weeks or:

(b) A fine not exceeding level 4 on the standard scale or

© Both

 

The current position is that a ‘Level 4’ fine is £2,500 but in early June the government announced that they are looking at seeking Parliamentary approval to use the powers outlined in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, to significantly increase the level of all fines. The proposal is to increase Level 1 fines from a maximum of £200 to a max of £800 and a level 4 Fine would increase from £2,500 to £10,000!!

[old bill]

Once again I find myself writing about the serious subject of debtors removing wheel clamps. The reason for this newer thread concerns yet another legal case that led to a conviction at Blackburn Magistrates Court.

 

With a serious criminal conviction being on the debtors history he decided to appeal. The appeal hearing took place last week at Burnley Crown Court. The case was dismissed and will no doubt be used in securing further convictions and most importantly the comment from the Judge will be of significance (more shortly).

 

The outline of the case is as follows:

 

 

The debtor; Sean Young, of Accrington had council tax arrears and received a visit from a female bailiff. The debtor refused to pay the amount requested of £430. She clamped a Volvo car - which he used. The debtor took photos of the vehicle being clamped. The bailiff left the property and returned 4 hours later to find that the wheel clamp had been removed.

 

Mr Young then produced a vehicle registration document saying the car belonged to his mother (the press article states that Mr Young used the vehicle....possibly he was the keeper). He refused to return the wheel clamp and claimed that he was 'protecting' his vehicle. An argument broke out and it seems that Mr Young then threw the bailiff down some steps injuring her. He was arrested by police officers and earlier this year was convicted at Blackburn Magistrates Court of assault and criminal damage to the wheel clamp.

 

He was ordered to do 200 hours unpaid work, pay £200 compensation to the bailiff, a further £200 compensation for the wheel clamp and £720 costs.

 

Despite having completed half of his community sentence he decided to appeal the conviction. The hearing took place last week at Burnley Crown Court but his case was dismissed by the judge.

 

Crucially, at the appeal hearing Judge Beverley Hunt stated the following:

 

“The car was not in need of immediate protection as he had four hours to pay. He didn’t try and do it by any other means than removing the clamp. He knew of the options, he knew he had other possibilities but chose not to use them"

 

The Judge ordered Mr Young to pay a further £225 in court costs (bringing the total amount of costs payable by him to £945).

 

http://www.accringtonobserver.co.uk/news/local-news/man-loses-appeal-over-bailiff-7618476

 

Mr Young was a very silly man in keeping the wheel clamp, as that would constitute Theft. Allegedly throwing the bailiff down steps and injuring them is silly, but I think we know that bailiffs can and do exaggerate and prevaricate so the claim by the bailiff is open to question. It also raises the question of whether the bailiff was acting lawfully. If they are not, then a lot of their legal protections do not apply.

 

One case in Cornwall in the last 12 months involved a person who was already paying a magistrates court fine by way of an Attachment of Benefits Order (ABO) being harassed and threatened by a Marston bailiff who claimed he had a Distress Warrant from the magistrates court. When the person checked with the magistrates court, it became apparent that the warrant had been issued in error and was immediately cancelled. However, the bailiff still continued to harass and intimidate. It is believed the bailiff then realised he had no lawful authority to be chasing the person who had already made it clear he was lodging a complaint with the police. The bailiff then made a false statement to the police, claiming the person was harassing him. At a preliminary hearing at Bodmin Magistrates Court, the magistrates voiced concerns about the evidence and adjourned the case for six weeks. At the adjourned hearing, the magistrates took less than an hour to dismiss the case.

 

I feel we need to be very careful that we do not become seduced by news reports that bailiffs are the innocent party because two cases in Devon and Cornwall in the last week or so have shown that bailiffs are, invariably, the perpetrators.

[old bill]

On 6th April the government implemented Part 3 of the Tribunal Courts & Enforcement Act 2007. This part of the TCE Act deals with the matter of 'taking control of goods' and the actual procedure (for 'taking control of goods) is outlined in Schedule 12.

 

At the same time the government released the Taking Control of Goods Regulations 2013 and with regards to the fees that can be charged, a further statutory instrument was also implemented on the same day. The new regulations are significantly different to any previous regulations and one major difference concerns dispute regarding the following situations:

 

The ownership or the goods taken (i.e: owned by a third party)

The value of the goods taken (i.e: goods taken (into control) that are significantly more that the amount of debt and fees)

Goods taken that are 'exempt' (i.e: goods that the debtor considers should be a 'tool of the trade')

 

If any of the above apply, the new regulations provide a REMEDY that must be followed by the debtor or 'third party'. This is a simple procedure that is outlined in parts 85 and 86 of the Civil Procedure Rules. Crucially, the decision on whether goods have been wrongly taken will rest with the creditor (i.e: local authority, HMCTS etc). What must NOT happen is for the debtor to make a decision for himself that goods should not have been taken and this is vitally important to remember in cases where a vehicle has been wheel clamped.

 

A second significant change to the regulations (and one that the 'advice sector' fought so hard for) is that if a wheel clamp is applied it should remain on the vehicle for a period of 2 hours. This is very important when considering the comment from Judge Beverley Hunt when dismissing the above appeal.

 

Reading what you have posted, TT, the interpleader would apply where third-party goods had already been removed. However, if, say, a vehicle had been clamped but not removed and a bailiff claimed the third party had to go to interpleader, then I would argue the bailiff was acting unlawfully ab initio. A creditor who retains goods, knowing they do not belong to the debtor, is potentially guilty of an offence at law. If the creditor is a public authority, this can have its own consequences.

[tomtubby]

 

I feel we need to be very careful that we do not become seduced by news reports that bailiffs are the innocent party because two cases in Devon and Cornwall in the last week or so have shown that bailiffs are, invariably, the perpetrators.

 

 

OB.

 

Please be assured that I am certainly NOT trying to say that bailiffs are innocent parties at all. What I am trying to say is that the debtor was arrested, appeared in court and was convicted. He appealed to the Crown Court and that appeal was dismissed.

 

The new regulations are clear in that it is now a criminal offence to remove a wheel clamp and accordingly, it is not for the debtor to decide for himself whether the application of a wheel clamp was lawful.

 

PS: If you have more detail of the two court cases can you provide details about them both in a new thread. The information can be very useful indeed.

[old bill]

The two cases in Devon and Cornwall in the last week or so are not going to court, at least, not yet. I have provided both alleged debtors with Gareth Hughes' office email address to chase it up with him.

 

The case in Devon is down to a cock-up on the part of TEC who are claiming they cannot be held responsible for their cock-ups and is being pursued with HMCTS at headquarters level.

 

The one in Cornwall may result in court action being pursued against Marstons and the EA involved who, incidentally, was found to have made false allegations to the police on a previous occasion against another person and which resulted in Bodmin Magistrates Court dismissing the case based on his allegations in less than an hour.

[old bill]

OB.

 

Please be assured that I am certainly NOT trying to say that bailiffs are innocent parties at all. What I am trying to say is that the debtor was arrested, appeared in court and was convicted. He appealed to the Crown Court and that appeal was dismissed.

 

The new regulations are clear in that it is now a criminal offence to remove a wheel clamp and accordingly, it is not for the debtor to decide for himself whether the application of a wheel clamp was lawful.

 

PS: If you have more detail of the two court cases can you provide details about them both in a new thread. The information can be very useful indeed.

 

The debtor's biggest mistake was refusing to return the clamp, which is Theft, per se.

[tomtubby]

Reading what you have posted, TT, the interpleader would apply where third-party goods had already been removed. However, if, say, a vehicle had been clamped but not removed and a bailiff claimed the third party had to go to interpleader, then I would argue the bailiff was acting unlawfully ab initio. A creditor who retains goods, knowing they do not belong to the debtor, is potentially guilty of an offence at law. If the creditor is a public authority, this can have its own consequences.

 

Two points here OB:

 

As I have outlined above, there are now remedies in place to settle 'disputes' and ONE of them is the 'Interpleader' route. The others are NOT the same and are very simple procedures indeed and they work remarkable well and if the evidence is provided to prove that the goods are either exempt, excessive, or belongs to somebody else then they will be released within a few days. I have done MANY of these applications and so far...fingers crossed....EVERY single one has been accepted.

 

It is not for the debtor to decided that a bailiff has acted 'unlawfully ab initio' (your words not mine) and this is why the new procedure is the correct one.

 

Only last week a debtor has an application for an injunction rejected and was advised that she must use the CORRECT procedure outlined in section 85 of CPR.

[goodatresearch]

Slk this confuses me. Aren't bailiifs supposed to check ownership or can they just clamp cars willy nilly. If they clamp the wrong car can the owner seek compensation for loss of use and loss if money (eg having to pay for alternate transportation etc).

 

Why should a 3rd party suffer this way. Isn't clamping a 3rd party car a form of criminal damage or against the legal rights of the 3rd patty.

[tomtubby]

The two cases in Devon and Cornwall in the last week or so are not going to court, at least, not yet. I have provided both alleged debtors with Gareth Hughes' office email address to chase it up with him.

 

The case in Devon is down to a cock-up on the part of TEC who are claiming they cannot be held responsible for their cock-ups and is being pursued with HMCTS at headquarters level.

 

The one in Cornwall may result in court action being pursued against Marstons and the EA involved who, incidentally, was found to have made false allegations to the police on a previous occasion against another person and which resulted in Bodmin Magistrates Court dismissing the case based on his allegations in less than an hour.

 

Almost certainly matters such as the ones that you have described should be brought to the attention of the company although I am not at all sure that they should be addressed to a Director.

[goodatresearch]

All this confuses me. Why on earth should a bailiff be allowed to interfere with a 3rd parties property.

 

Can the 3rd party sue for loss. Its all very well saying they will be released in a few days. What about compensation for loss of use, having to pay for alternative transport etc. It seems to me that this law is barmy, or am I missing something?

[tomtubby]

The debtor's biggest mistake was refusing to return the clamp, which is Theft, per se.

 

Given that the case has been heard in the Magistrates Court AND the Crown Court theft cannot have been an issue. It is wrong to make legal assumptions unless EVIDENCE can be provided. The importance of this appeal case is the last paragraph. Under the new regulations debtors are provided with a period of 2 hours before the vehicle should be removed.

 

As I have mentioned above, the 'advice sector' fought very hard for a '2 hour limit' to be provided in the regulations. There are rumors that the enforcement industry are seeking to have this REMOVED and the reason being that more wheel clamps are being removed (and very often on the advice of internet sites).

[tomtubby]

Slk this confuses me. Aren't bailiifs supposed to check ownership or can they just clamp cars willy nilly. If they clamp the wrong car can the owner seek compensation for loss of use and loss if money (eg having to pay for alternate transportation etc).

 

Why should a 3rd party suffer this way. Isn't clamping a 3rd party car a form of criminal damage or against the legal rights of the 3rd patty.

 

In fact, you are correct, the bailiffs are under an obligation to ensure that checks are made before they clamp a vehicle (or take any goods). I will write more on this later.

[caledfwlch]

In this and a couple of other recent cases one important fact seems to stand out:

 

In all cases the Debtor appears to have not denied and even proudly informed parties such as the bailiff and or police that yes they removed the clamp and then go into a ludicrous argument as to why they were "legally" able to do so probably after receiving some fantasy fan fiction err I mean "advice" from Freemen.

 

I can well imagine that even an innocent third party who remove a clamp from their vehicle will also get done for criminal damage etc

 

The law now appears to be a playground for the bailiff with no resort for an innocent victim except potentially through expensive legal action.

[old bill]

As I am sure we all know, TT, if a law is made, there are those who will abuse it.

 

The interpleader is not dissimilar to police officers and local authority civil enforcement officers issuing Fixed Penalty Notices and then telling you to challenge it in court if you do not agree with it.

 

The situation with FPNs is totally incompatible with Article 6 of the European Convention on Human Rights, which contains the presumption of innocence until guilt is proven. This right is inalienable and inviolate. The right to enjoyment of a person's possessions, free from interference by a public authority, except in exceptional circumstances, is contained within Article 1 of the First Protocol of ECHR. This means that unless a public authority, namely, a court of law or other legally-convened tribunal, has correctly and lawfully adjudged a person to be liable to pay taxes or some penalty, the State and its various arms must not interfere with or take a person's possessions. And even if one of it's bungling contractors does take goods they shouldn't, it is incompatible with ECHR that an innocent party should have to provide evidence of ownership.

 

ECHR is International Law which supersedes UK domestic law, no matter how hard the UK government attempts to convince the public otherwise. The UK has a shocking human rights record which predates the UK's signing of ECHR in Rome in 1953.

 

As you say -

 

I have done MANY of these applications and so far... fingers crossed... EVERY single one has been accepted

 

The question is "How much longer is it before Queen's Bench Division exposes shortcomings within the new regulations and the politicians find their shiny brand new laws they claim protect the public is little more than an exercise akin to shifting deckchairs around on the deck of the Titanic as it sank to the bottom of the Atlantic Ocean?"

 

Sorry to sound cynical, but having seen evidence of corruption and fraud within the public service, I can see these new regulations being shown up as inadequate and ineffective which, going by cases I have come across in Devon and Cornwall, is not unlikely.

[old bill]

Almost certainly matters such as the ones that you have described should be brought to the attention of the company although I am not at all sure that they should be addressed to a Director.

 

Given the lack of co-operation members of the public appear to receive from civil enforcement companies when matters go pear-shaped, is there really any choice? Notwithstanding, the directors of a company are vicariously-liable for the actions of the company's employees and can be held to account.

 

The case in Cornwall could have serious repercussions for Marstons and the police.

[old bill]

In this and a couple of other recent cases one important fact seems to stand out:

 

In all cases the Debtor appears to have not denied and even proudly informed parties such as the bailiff and or police that yes they removed the clamp and then go into a ludicrous argument as to why they were "legally" able to do so probably after receiving some fantasy fan fiction err I mean "advice" from Freemen.

 

I can well imagine that even an innocent third party who remove a clamp from their vehicle will also get done for criminal damage etc

 

The law now appears to be a playground for the bailiff with no resort for an innocent victim except potentially through expensive legal action.

 

Exactly the point I am trying to make in another post on this thread CF.

[old bill]

All this confuses me. Why on earth should a bailiff be allowed to interfere with a 3rd parties property.

 

Can the 3rd party sue for loss. Its all very well saying they will be released in a few days. What about compensation for loss of use, having to pay for alternative transport etc. It seems to me that this law is barmy, or am I missing something?

 

There is a piece of legislation called the Torts (Interference With Goods) Act 1977. It has a reversed onus, which means the defendant has to prove their case. However, it appears the politicians did not listen to the warnings about the woefully inadequate screening of individuals who apply for certification as EAs.

[goodatresearch]

Actually I already know this (being legally qualified). I asked because I couldn't understand what the politicians were thinking and wanted others opinions. I can see of court cases about this by disgruntle 3rd parties.

 

 

 

There is a piece of legislation called the Torts (Interference With Goods) Act 1977. It has a reversed onus, which means the defendant has to prove their case. However, it appears the politicians did not listen to the warnings about the woefully inadequate screening of individuals who apply for certification as EAs.

[old bill]

Given that the case has been heard in the Magistrates Court AND the Crown Court theft cannot have been an issue. It is wrong to make legal assumptions unless EVIDENCE can be provided. The importance of this appeal case is the last paragraph. Under the new regulations debtors are provided with a period of 2 hours before the vehicle should be removed.

 

As I have mentioned above, the 'advice sector' fought very hard for a '2 hour limit' to be provided in the regulations. There are rumors that the enforcement industry are seeking to have this REMOVED and the reason being that more wheel clamps are being removed (and very often on the advice of internet sites).

 

The defendant refused to return the clamp, which is permanent deprivation of property. The Crown Court, in this case, was acting as an appeal and not a trial court.

[old bill]

Actually I already know this (being legally qualified). I asked because I couldn't understand what the politicians were thinking and wanted others opinions. I can see of court cases about this by disgruntle 3rd parties.

 

Good question. Answers on a postcard, please, to......

 

I feel you are probably correct about there being court cases brought by disgruntled third parties.

[unclebulgaria67]

Good question. Answers on a postcard, please, to......

 

I feel you are probably correct about there being court cases brought by disgruntled third parties.

 

The third parties tell the enforcement agents that the clamped car is theirs and nothing to do with the debtor. They will be hiring a car and issuing a small court claim against the EA company for the hire charges, if these are not reimbursed beforehand.

 

I cannot see why a court would not award the claimant their reasonable costs, in a situation where the EA denied an innocent third party usage of their vehicle. The court could not deny the claim on the basis there was some other process.

[DragonFly1967]

The situation with FPNs is totally incompatible with Article 6 of the European Convention on Human Rights, which contains the presumption of innocence until guilt is proven. This right is inalienable and inviolate.

 

This is totally off topic, but I'm going to bite.

 

old bill, that statement is ridiculous! The FPN system isn't incompatible with anything...

 

A) You do not have to accept an FPN, you can if you so choose decide to be reported for consideration and summonsed in the normal way, where you are innocent until (and unless) found guilty.

B) Even if you choose to accept the FPN, you do not have to pay it. You can fill in the back of the ticket and have your day in court, where you are innocent until (and unless) found guilty. And finally..

C) You admit guilt yourself by paying the ticket and not choosing either option A or B.

 

None of which are a presumption of guilt, unless you choose C where you're not being presumed guilty, you're admitting to your own guilt.

 

Spouting such nonsense as your quoted text above, makes you sound like one of those FMOTL fruitloops. Please don't devalue your usually sensible (and thought provoking) posts with such drivel.

[caledfwlch]

I agree with OB to an extent on FPN's

 

The fact is, if you disagree with the assumption of guilt an FPN entails the court proceedings often appear to be a rubber stamp exercise with magistrates talking only "police or EO" and it does appear to be fact as even some magistrates have complained that fellow members of the bench do not view these cases unbiased but from an extremely biased viewpoint that a police officer and council EO is a very special type of human being who is incapable of telling porkies, a belief that would astonish some real judges who regularly see evidence of police porkies and corruption not to mention the LGO.

 

The biggest thing I think is the fact that if you dare to use your right to defend yourself against an allegation then should you lose and there will be many innocent people who do then the FPN is Doubled! So we have an instrument that says either admit guilt now even if innocent or we will make your life a misery for daring to use your rights.

 

It is extremely telling that the main reason behind FPN is to save constables and EO's "hassle and paperwork" it is an instrument that very effectively makes a Constable or EO judge, jury and executioner. Something not supposed to exist in a democracy