PLEASE NOTE NEW PARKING REGULATIONS COME INTO FORCE END OF MARCH 2008 WHICH REMOVE THE RIGHT OF THE DRIVER TO APPEAL ON THE GROUNDS THAT THE PCN WAS NOT PROPERLY SERVED
Appealling a penalty charge notice is a long process that takes about six months. Councils who issue dodgy tickets are counting on you being discouraged from appealling formally by (a) the tedious process and long delays, (b) the apparently limited grounds on which you are allowed to appeal, (c) the fact that you lose the right to pay early at the discounted rate and (d) the amount of time you will have to invest in learning about the rules and legislation relevant to your case, preparing your evidence and so on. The picture above shows the key stages in this case study appeal as follows (left to right):
On 11 August 2004, the appellant and her witness returned to their vehicle to find a Westminster Parking Attendant had begun process of issuing a Penalty Charge Notice. The Parking Attendant was indeed entitled to commence issue of a PCN since their vehicle was parked in a metered bay, and penalty time was showing. At this time, however, no PCN had been issued since the Parking Attendant was still entering the required data into his handheld computer.
The appellant asked the Parking Attendant if she could leave. The Parking Attendant said she could not leave, and that he could not cancel the ticket. In fact, to tell a driver they cannot leave in these circumstances is entirely incorrect - the driver is perfectly entitled to leave before a PCN is legally issued (i.e. attached to the vehicle or handed to the driver). In this case the PCN is not valid. The Parking Attendant should then make a note in her/her logbook that the vehicle drove off and have the PCN cancelled by his/her supervisor upon return to base. So while a Parking Attendant cannot themselves cancel a ticket, their supervisor does have this power (something of which our appellant was not informed of course!)
Being fully aware of a driver's rights in this situation, the witness told the appellant to ignore the deliberate attempts by the PA to mislead her, and to drive off. The appellant duly did, and did not expect to hear anything further about the matter.
Surprisingly (at least to her), about a month later, the appellant received a Notice to Owner in the post, demanding payment of GBP 100 in respect of the above PCN. "Within 28 days," the Notice to Owner demanded, "you must EITHER pay in full (see the payment slip below for ways to pay) OR challenge the Penalty Change Notice by completing and returning the attached REPRESENTATIONS form".
Having never been issued with a legally valid PCN, the appellant dutifully filled in her representations form, clearly laying out the facts of her case and grounds for dismal of the PCN (technically in this case this should be that the contravention did not occur):
I returned to my car whilst the council parking attendant was in the process of issuing the Penalty Charge Notice. I then got into the car and drove away. The Penalty Charge Notice was neither attached to my vehicle nor handed to me. I refer to the letter enclosed which clarifies the Council's position on this matter. I had a passenger with me in the car at the time, who was a witness to this and I am prepared to take my case to the Parking and Traffic Appeals Service. In addition to the parking attendant in question ignoring procedure by not destroying the PCN at the end of the day, he also deliberately misled me by saying he had started issuing, that there was nothing he could do and we could not drive off. Consequently I would like disciplinary action to be taken and for me to be informed when this has taken place.
Alarmingly (again as far as the appellant was concerned), Westminster City Council issued a Notice of Rejection of Representations, claiming that the PCN had been "correctly issued" according to the notes in the attendant's logbook:
The Parking Attendant has not indicated that the vehicle drove away before the PCN was issued. Rather the Parking Attendant has recorded in the logbook that the PCN was put on the vehicle, and has provided details of your vehicle excise licence. This is usually an indication that the Parking Attendant would have been in close proximity to the vehicle. It is possible that some other person removed the PCN after it was issued, but the contravention did occur and the PCN is still valid.
Your Representation has been rejected and you must either pay the PCN or appeal to a Parking Adjudicator at the Parking and Traffic Appeals Service within 28 days of the date of this letter.
Westminster City Council "generously" offered the appellant an opportunity to settle the fine within 14 days at a 50% discount rate (offering myriad ways to pay), adding "Please note that if the Adjudicator refuses your appeal, you will be required to pay the full charge of the PCN."
Not put off by the Council's dubious line of argument in claiming that the PCN might have been removed "after it was issued" (the whole point of her appeal was that she drove off in the presence of the PA before it was issued!?) and the Council's peculiar statement that "the PCN is still valid" (only by fictitious magic order of Westminster City Council, not under terms of the Road Traffic Act!), the appellant declined and chose to make a formal appeal to the Parking and Traffic Appeals Service.
By the way, the bit about the "details of your vehicle excise licence" (i.e. your tax disc number and expiry date) is interesting - it's one of the last bits of information a PA has to enter into their handheld computers, so naturally it's also the first thing many of them write down on the backs of their notebooks the second they walk up to your car. This way they can continue to issue a PCN even if you do drive off.
The appellant duly submitted her evidence to the Parking and Traffic Appeals Service, including a statement from her witness (note you do not always need a witness to win an appeal; a simple sworn statement from the driver has been known to be adequate). The appellant also asked for costs to be awarded on the basis that the council had been vexatious in their pursuit of this PCN, particularly since: (a) the PA had attempted to mislead her about her right to drive away (b) the PA had forged his logbook entries to make it seem he had placed the PCN on the vehicle and (c) the PA had ignored procedure in not having the PCN cancelled by his supervisor.
Westminster replied with evidence from the PA's logbook purporting to prove proper issue of the PCN. The initials used in the logbook included WIN (PCN affixed to windscreen). The logbook featured no other notes to indicate anything unusual occuring (such as the vehicle driving away!) Westminster hence argued that:
The City Council finds no justification or basis on which to disregard the evidence of the detailed and concise contemporaneous notes. On the other hand, the witness statement cannot be considered as contemporaneous in light of the passage of time from when the PCN was issued to when the statement was provided. In addition, the neutrality and objectivity of the witness statement cannot be definitely established in this case and cannot therefore be relied upon in this case... The City Council is satisfied that the contravention did occur and that the PCN was issued correctly. The City Council wish to contest this appeal.
The witness was duly appalled that her integrity was being called into question (a standard ploy I suspect). Since I knew her well (as an honest, reliable sort of person) and had myself witnessed various attempts by Parking Attendants to mislead motorists about their rights to drive off, I reviewed the Council's "evidence" and submitted a rebuttal (vouching for the integrity of the witness and casting doubt upon the "neurality and objectivity" of their parking attendant!) I do not think this had a material effect on the outcome of the case but it certainly felt like the right thing to do in the circumstances.
Finally, on 5 February 2005, the appellant and her witness had their personal hearing at New Zealand House. It took only 15 minutes for the adjudicator to come to the following conclusion:
The appellant therefore won her appeal, but was not awarded costs (apparently these are only awarded very exceptionally). The appellant felt there was no further point in pursuing the Council to take action against the PA since the PA was probably no longer employed by the Council (anecdotal evidence is that most PAs don't last more than 3 months).
So the appeals system does work, but only if (a) you know where you stand in law and are not misled about your rights either by the Parking Attendant or subsequently by the Council AND (b) you have taken some time to research the rules and prepare your case AND (c) you are prepared to put up with a long period of uncertainty and possibly an increased fine if your appeal is rejected. For those that do make the effort, a large percentage of appeals are accepted (around 60% I believe).
I'd be very interested to hear of more appeal experiences.
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