Home Affairs Department
Green Paper
CONSULTATION paper – Wheel clamping |
PURPOSE OF CONSULTATION
To gauge public opinion on wheel clamping in order to establish whether to recommend to the States that the practice be regulated by statute.
DEADLINE FOR RESPONSES 30thSeptember 2008
SUMMARY / QUESTIONS TO CONSIDER
This consultation paper considers the current law and practice regarding wheel clamping in the island. It considers the position in the United Kingdom and explores the legal and regulatory context.
FURTHER INFORMATION A questionnaire is included and views are sought as to the appropriate way forward
SEND COMMENTS TO:
Wheel Clamping Consultation Home Affairs Department 11 Royal Square St Helier JE2 4WA | Tel. (01534) 445507 Email homeaffairs@gov.je Fax (01534) 752950 |
This consultation paper has been sent to the following individuals / organisations:
The Public Consultation Register
JEP – ‘Fair Play’
‘Wheelclampit’ Car Park Security
G4S Security Systems
Individuals with a personal interest.
States Members
Home Affairs department
CONSULTATION paper – Wheel clamping
Introduction
- This paper seeks to gauge opinion on the practice of wheel clamping and whether it requires regulation. Although the focus is on wheel clamping companies, there exists an opportunity to extend any legislative/regulatory framework to cover all parking enforcement companies.
Background
- The issue was highlighted in a recent JEP ‘Fair Play’ report after a clamping incident in December, followed by an oral question in the States from Deputy K Lewis. Both of these specifically challenged the legality of wheel clamping on private land, as well as the methods used for demanding money for the release of clamped vehicles. The JEP reports prompted further public responses, especially concerning the alleged attitude of wheel clamping operatives and demands made for immediate cash payment to release vehicles.
- This highlighted a secondary issue, namely the divulgence of information to wheel clamping companies for a fee. Advice to the Driver and Vehicle Standards Department (DVS) in 1999 was that, provided the owner of the property in question or his/her authorised agent could supply evidence that the vehicle was parked on private land without authorisation, there is reasonable cause to request particulars of the keeper of the vehicle and for DVS to provide those particulars.
Aim
- The aim of this consultation paper is to:
a) Review the current situation regarding wheel clamping in the Island, including the case for and against.
b) Consider the position in the UK and other Crown Dependencies.
c) Explore the legal context.
d) Suggest possible solutions.
e) Seek views as to the appropriate way forward.
The Position in the UK and Other Jurisdictions
- England & Wales – wheel clamping is lawful, but licensed. Under the Private Security Industry Act 2001, the Home Office set up the Security Industry Association (SIA) to regulate the private security industry in England and Wales. The SIA has responsibility for licensing vehicle immobilisers who carry out their activities on private land against a release fee. It is a criminal offence for anyone without a licence to clamp vehicles and for someone to employ an unlicensed wheel-clamper, or for a landowner to allow a wheel-clamper who they know is unlicensed to operate on their property. When paying to have a vehicle released, the wheel-clamper must provide a receipt which includes place, their name and signature, licence number and date. Information about licensed operatives is available to the public. Only the operatives of a company that works solely for the police and/or a local authority do not require a licence. Wheel clamping operations are currently governed by a voluntary code, set down by the Association of British Parking Enforcement Companies (Appendix 1)
- Scotland - wheel clamping is illegal on all but public highways, and even in such circumstances can only be carried out by the Police or someone with statutory authority.
7. Northern Ireland – wheel clamping Roads Service’s contractor, NCP Services Ltd (NCP), have been awarded a 3 year wheel clamping contract with DVLNI/DVLA, effective from 1 May 2006. In addition to the national scheme, DVLNI is also able to authorise Local Councils and Police Service Northern Island to wheel clamp and impound untaxed vehicles in their local area. For clamped vehicles the fee for release is high, £80. In addition, a valid tax disc must also be produced. If a tax disc cannot be produced, a surety (£120 for a car or motorcycle, up to £600 for other vehicles) must be paid before the vehicle can be released. The surety payment is forfeited if a valid tax disc is not produced within 2 weeks.
Current Situation
- The Minister for Home Affairs has carried out some initial consultation with Fair Play representatives and members of the public who have a particular interest in the issue.
- The case for clamping includes:
a) The perceived need for an effective deterrent or penalty against those illegally parking on private land
b) The requirement for applicants wishing to identify owners of illegally parked vehicles to prove the application is ‘necessary’ i.e. has ‘reasonable cause’, and the payment of a fee.[1]
c) The absence of strategies for landowners to legally remove vehicles
d) The perception that notices indicating private areas are repeatedly ignored.
- The case against clamping includes:
a) The practice has been described by some as extortion of money and modern day `highway robbery'.
b) The charges are excessive compared, for example, with parking fines.
c) There is concern about the measures taken to extract money as cheques are not accepted e.g. there have been cases of people being taken to cash points to obtain the release fee.
d) There is concern about the visibility of notices, particularly as most problems seem to occur at night when signs may not be seen.
e) There is a view that it is a disproportionate response to the act of parking on private land in that it can be arbitrary and intimidating.
- A number of alternatives to clamping in its present form have been put forward:
a) Provision of legislation to make the practice of clamping illegal (as it is in Scotland and France.)
b) Provision of greater control on parking by allowing controlled access to private land by barriers permitting authorised access only, or an alternative sanction by way of ticket invoicing.
c) Giving clamping a legal basis, but stipulating conditions such as:
i) Companies would have to be registered and comply with the conditions.
ii) Requests for driver details would have to show `reasonable cause' in each individual case.
iii) Alternative forms of payment would have to be accepted.
iv) Guidelines on `proportional interference' (see Appendix 2 – DVLA guidance)
v) An appeal process for people to contest the need for clamping in particular areas and resolve other disputes.
The Legal Position
- The issue of the legality of wheel clamping is not straightforward and has only been tested once in Jersey in Gosselin v Attorney General, 1990. The person who had effected the wheel clamp was convicted by the Magistrate under the Road Traffic (Jersey) Law 1956 of tampering with a motor vehicle; he appealed to the Royal Court against that conviction. The Royal Court allowed the appeal and quashed the conviction on the ground that, although the appellant had tampered with the motor vehicle when he put a clamp on it, he had done so in a private car park – i.e. on private land – and the offence could only take place on a road, public place, or place provided for the parking of vehicles.
- However, in dismissing the appeal, the Court indicated that the action of wheel clamping might amount to a tort giving rise to a civil cause of action, see Gosselin v Att. Gen. 1990 JLR 102. On this basis, Gosselin appeared to indicate that there is no lawful authority to resort to the self-help remedy of clamping.
- Since the decision in Gosselin, the English Court of Appeal has considered at length the question of wheel-clamping in the leading case of Arthur v. Anker [1996] 3 All ER 783. It was held by the English Court that a driver who parked a vehicle without authorisation on private land (displaying warning signs that unauthorised vehicles would be immobilised and a fee charged for their release) had voluntarily consented to the risk not only that his vehicle might be immobilised, but also that the vehicle would remain immobilised and be detained until he paid the reasonable cost of clamping and removing the clamps.
- There is no applicable legislation in Jersey, but there are principles of customary law which may assist. There are also a number of data protection considerations.
Possible Solutions:
- The following solutions, although not exhaustive, are possible:
a) Introduce legislation to make wheel clamping legal / illegal.
b) Introduce legislation to clarify the circumstances under which it would be legal to wheel clamp on private land.
c) Introduce regulation/licensing for wheel clamping organisations
d) Regulate the level of fines imposed and signage used.
e) Provide policy or guidance regarding the release of personal information; ‘authorised’ applicants; level of fees charged for information release; a ‘proportionate’ release of personal data.
f) Establish alternative methods of control for offences on private land e.g. parking invoice charges, in line with on-road charges; use of barriers restricting access
g) Introduction of an appeals process.
h) Extend the legal provision and regulation of licensing to include all parking enforcement companies i.e. also those issuing tickets for parking on private land.
Way Forward:
- All comments received as a result of this consultation will be collated and the results used to inform an appropriate way forward. The Home Affairs Department would be grateful to receive comments, either by letter or email, by the 30th September 2008. To help structure responses, a questionnaire is attached at Appendix 3.
Appendix 1
Parking Enforcement Agency- Voluntary Code used in the United Kingdom:
Code of Practice
Parking Enforcement Agency
CODE OF PRACTICE
Wheel Clamping Code of Practice Parking Enforcement Code of Practice
Code of Practice for Wheel Clamping on Private Land
National Informant Code of Practice April 2003
A parking agreement with the customer must be in place from day of commencement of the Agreement and before any clamping takes place.
The Authorised user shall not charge a clamp release fee above £125.
If a vehicle is immobilised, the Authorised User shall strive to release the vehicle within a period of two and a half hours from the time when the owner of the vehicle requests to be released.
For all vehicles which are clamped there must be at least one sign clearly visible from the vehicle’s parked position; signs placed at the entrance to a car park have no legal significance.
If a vehicle has been immobilised by the Authorised User, the Authorised User should accept payment by cheque and guarantee card, VISA, Master Card, Access, or cash only as a last resort.
The Authorised User should deal with all complaints or disputes it receives within a period of 21 working day of receipt of the complaint.
The Authorised User shall take photographic evidence of every vehicle which is immobilised under the terms of the Agreement to show that there was no permit on display, or to establish the reason for the vehicle being immobilised.
A period of 5 to 10 minutes should be allowed on residential developments to allow resident permits to be collected, and a visitors permit can be obtained.
The Authorised User shall display their company logo on all transport relating to car park management or enforcement.
All car parking warning signs shall be of a minimum size of 10 inches by 15 inches.
All signs shall state appropriate warning in bold, identify the Authorised User responsible and give a 24 hour contact number.
All employees of the Authorised User shall carry identification at all times and shall wear uniform as supplied by the Authorised User.
The Authorised User must ensure that all employees are given sufficient training in their duty and be able to show that they have the capability to carry out their job.
A minimum period of four weeks training shall apply and should continue until the employee is confident and professional in carrying out their duties.
The Authorised User will not, under any circumstances, immobilise any emergency, police, fire brigade, ambulance or security transport vehicles.
The Authorised User must display the trademark to show that the service provided complies with the parking enforcement code of practice.
The Authorised User shall not clamp any vehicle whilst its engine is running or has persons still in the vehicle.
No vehicle should be clamped if it is causing an obstruction, I.e. blocking access, which might prevent access of emergency vehicles.
Situations not accepted under this code of practice are as below:
1. Unprofessional behaviour, threatening behaviour, intimidation, aggressive behaviour.
2. Poor Administration on behalf of company.
3. Insufficient warning signs in position.
4. Poor communication.
5. Complaints not dealt with within 21 days, or not dealt with at all.
6. Extortionate, unwarranted amounts being charged.
7. Blocking in vehicles and then clamping them.
8. Taking only cash payments.
9. Not wearing uniforms and not carrying identification.
10. Giving commission to land owners or others.
11. Charging over £125 as a clamp release fee.
12. Charging over £130 as a tow away fee.
13. Charging over £25 per day for storage.
If a new contract has been entered into, the signs should be in place for a period of not less then five working days, prior to any clamping taking place.
The Authorised User must keep a record of all clamping undertaken by computer or on paper records, for a period of 12 months and must record all complaints received.
All car park warning signs must have the conditions of the car park clearly stated so as not to confuse the motorist.
Window stickers must be used to inform the driver of the vehicle of the way to make payment and the method of payment, including how to make an appeal.
The Authorised User must supply a notice of the clamping incident, to include date, model, make of vehicle, vehicle registration, persons responsible for clamping the vehicle by reference and the exact location.
The Authorised User must keep in force employee and public liability insurance to a minimum of £5 million.
The Authorised user/ company must provide a Heath & safety policy for all there clients & employees & when requested show there policy objectives.
NOTE
75% of private clamping companies charge an annual fee for their services, ranging from £100 - £1000. You are under obligation to charge for this service according to your contractual Agreement. The Agreement must show that the land owner is not making a profit from the clamped motorist. If, for some reason, civil proceedings are taken against you as an Authorised User, you can then show that you undertake a professional and necessary service.
The Parking Enforcement Agency will not be held liable in any way in connection with this Agreement.
Declaration:
Name: ________________________________ Position: _________________________
Company: ____________________________________________________________
Address : ____________________________________________________________
___________________________________ Post code: _______________
Telephone : _________________________________
· We agree to abide to the code of practice and show duty of care.
· We are registered as a company for tax and vat (if applicable).
· We will inform all employees, agents and contractors of the terms and conditions
of the code of practice.
· We will ensure that the code of practice is enforced against its employees, contractors and its agents.
Signed : ______________________________________ Date : ____________________
Wheel Clamping Information Sheet
Reference system that can be used for wheel clamping companies
P | Permit holders only |
F | Free parking whilst on premises |
NO | No parking |
D | Disable driver only |
U | Use Designated bays only |
M | Maximum stay |
H | No parking on yellow lines |
Example of reference code used: P1203SR
This is displayed as the permit holders time when they where clamped (1203)
This is the clamping operative’s name, Simon Ridge (SR)
Example of Charge Notice
CC22/1-0017 Charge Notice
A Clamping Co
PO BOX 883, SOUTH CROYDON, SURREY CR2 8YT
ATTENTION
YOU HAVE BEEN CLAMPED AND YOUR
REGISTRATION NUMBER RECORDED
WARNING
IT IS A CRIMINAL OFFENCE
IF YOU DAMAGE THIS CLAMP
(MR ROGER LLOYD VERSUS THE DIRECTOR
OF PUBLIC PROSECUTIONS,
LORD JUSTICE NOLAN & MR JUSTICE JUDGE
PRESIDING 20TH JUNE 1991)
YOUR VEHICLE WILL HAVE THE CLAMP
REMOVED ONCE YOU HAVE PAID THE RELEASE FEE IN
FULL TO A Clamping Co.
THE COMPANY RESERVES THE RIGHT TO TOW
AWAY AND IMPOUND YOUR VEHICLE AT A
FURTHER COST OF £90 INC. VAT
Please Quote Reference Number : | Ref. No. |
TEL: 0208 1234 5678 TERMS & CONDITIONS OVERLEAF |
Example of Charge Notice
THERE IS A £3.00 TRANSACTION FEE
FOR ALL CARDS USED.
ALL COMPLAINTS MUST BE IN
WRITING AND SENT TO:-
| Parking Enforcement Agency
CODE OF PRACTICE
Registered Trade Mark |
COMPLAINTS WILL NOT BE DEALT
WITH OVER THE TELEPHONE.
ALL COMPLAINTS WILL BE DEALTWITH IN WRITING WITHIN 14 – 21 WORKING DAYS.
Appendix 2
Guidance from the United Kingdom Driver and Vehicle Licensing Association (not applicable in Jersey):
Use and disclosure of vehicle information
There are occasions when the DVLA gives out information about the keeper of a vehicle to the police, local authorities, private companies or individuals. This guidance will help you understand when these disclosures can take place and what to do if you think information about you has been used inappropriately.
What is vehicle keeper information?
The DVLA holds a register containing details of all vehicles licensed for use on the road. This register also contains the name and address of the registered keeper of each vehicle. The registered keeper of a vehicle is the person or organisation responsible for the licensing and use of that vehicle – this is often, but not always, the legal owner.
The register is used to identify vehicles being used on the road to help prevent and detect crime, prosecute offenders, collect fines, improve road safety and make sure vehicles are properly taxed.
If I’m the registered keeper, does the DVLA have to ask my permission before passing these details to other people?
No. The details on the vehicle register are not open to the public but can be released on request for a number of reasons. Here are some examples of when information might be disclosed.
• The Data Protection Act 1998 allows personal information to be released on a case-by-case basis when, if the information was withheld, it would be likely to stop or delay preventing or detecting crime or prosecuting offenders.
• To check information about a particular vehicle, such as the year it was made, engine size and colour. A person making this kind of enquiry would only receive information about the vehicle. They would not be given the keeper’s name and address.
• The Road Vehicles (Registration and Licensing) Regulations 2002 requires the DVLA to release keeper information to the police or to a local authority to investigate a criminal offence or non-criminal parking offence. These Regulations also require the DVLA to release information to anyone who can prove that they have 'reasonable cause' to have it. The applicant has to pay a fee to receive the information they have requested.
What does 'reasonable cause' mean?
There are a number of circumstances where an individual or organisation might have a justifiable and pressing need for vehicle keeper information. The DVLA will consider their reasons for wanting the information and any application which does not give a good reason will be rejected, as will any application where the DVLA believes the information would be used unfairly or irresponsibly. All those who ask for vehicle keeper information are warned that it is an offence under section 55 of the Data Protection Act 1998 to unlawfully obtain information, for example, by stating they want the information for one reasonable and lawful purpose when actually they want it for another illegitimate or unlawful purpose.
Here are some circumstances where the applicant might be able to demonstrate that they have reasonable cause for obtaining the information.
• To trace the keeper of an abandoned vehicle or a vehicle involved in an minor accident (for example, if a car has been driven into and damaged another vehicle, then been driven away).
• To trace the keeper of a vehicle which has been driven away from a petrol station without paying for fuel or which has been driven without payment of any toll which applies (for example, tunnel or bridge charges).
• To trace keepers who have parked on private land without paying the parking charges.
• To investigate suspected insurance fraud.
Anyone requesting information for these, or any other, reasons should provide evidence to the DVLA which shows why their request is reasonable. Companies who ask for information must always provide details of their business activities. This deters people from pretending to have a reasonable business cause such as recovering money owed for petrol when in fact they want the keeper’s name and address for another purpose. Companies requesting information to enforce parking fees must also provide evidence to show that a parking charge scheme actually exists and that drivers are made aware that the scheme is in force.
What can I do if my information has been requested or used unlawfully?
If you are the registered keeper of a vehicle and you have a complaint about the use of your information, first write to: Release of Information, Paying Enquiries Section, DVLA, Swansea SA99 1AJ.
If you are still unhappy after the DVLA has investigated your complaint, you should contact us using the details below.
More information
If you need any more information about this or any other aspect of data protection, please contact us.
Phone: 08456 30 60 60
01625 54 57 45
E-mail: please use the online enquiry form on our website
Website: http://www.ico.gov.uk/
Appendix 3
Questionnaire
To assist the Home Affairs Department we ask that you complete the following questionnaire by 30th September 2008 and return it to the Home Affairs Department, 11 Royal Square, St. Helier, Jersey JE2 4WA. If you have further suggestions or observations, please use the space overleaf. Your comments are valued.
1. Do you think that it is appropriate for land-owners to have the right to say who can and cannot park on their land? Yes No (please circle)
2. Which would you consider to be the most effective deterrent to unauthorised parking: (please circle)
i) Penalty charge
ii) Tow with release fee
iii) Wheel clamping with release fee
3. Do you consider that penalty charges for parking offences on private land i) should be at levels in line with statutory parking charges?
Yes No (please circle)
ii) should allow for the addition of administrative costs?
Yes No (please circle)
4. If wheel-clamping remains permitted, should it be regulated by either:
i) a voluntary code of practice? Yes No (please circle)
ii) a code of practice enforceable by legislation? Yes No (please circle)
5. a) Do you have personal experience of being wheel-clamped?
Yes No (please circle)
b) Do you have personal experience of unauthorised parking on your private land? Yes No (please circle)
6. Comments or further suggestions: (please continue on reverse of page)
[1] The information is restricted as release of ‘personal data’ under Data Protection (Jersey) Law 2005, unless it can be justified under Schedule 2 of the Law. The information is restricted as release of ‘personal data’ under Data Protection (Jersey) Law 2005, unless it can be justified under Schedule 2 of the Law.
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