Saturday, 27 October 2012

BAS Parking Services breaching the clamping ban

Private clamping and towing of vehicles was definitively outlawed in England and Wales on 1st October 2012. Before that, it was legal in certain circumstances, but private companies overstepped the lawful limits more often than not – although it was not always clear where the limits were. The law has now been made very clear.

But it seems that in Bristol, BAS Parking Services are vioalting the ban - apparently with the council's consent:
"Enforcement of parking restrictions at this site is carried out by a private contractor which responded to reports of a number of motorists parking at the flats without a permit and, unfortunately, this employee was caught up in this action and was towed away."
They seem to be unaware that this method of enforcement is now a criminal offence.

Section 54 of the Protection of Freedoms Act 2012 states:
54Offence of immobilising etc. vehicles
(1)A person commits an offence who, without lawful authority—
(a)immobilises a motor vehicle by the attachment to the vehicle, or a part of it, of an immobilising device, or
(b)moves, or restricts the movement of, such a vehicle by any means,
intending to prevent or inhibit the removal of the vehicle by a person otherwise entitled to remove it.
(2)The express or implied consent (whether or not legally binding) of a person otherwise entitled to remove the vehicle to the immobilisation, movement or restriction concerned is not lawful authority for the purposes of subsection (1).
Implied consent of the motorist was the old reason that clamping could be lawful in some cases. The act clearly covers towing, as well as clamping, if the towing is intended to prevent the owner driving the vehicle without making a payment. Accepting or demanding any payment would also now be an offence under the Consumer Protection from Unfair Trading Regulations 2008 and could carry a prison sentence of up to two years.

Some comments on that page have claimed that as clamping and towing by councils can still be lawful, BAS are in the clear as their contractor. Clamping and towing by councils can amount to "lawful authority" for the purposes of section 54(1) where they are enforcing statutory parking restrictions: that is, where a traffic order has been made on public land (a road or public car park). Lawful clamping and towing by councils on public land also carries a statutory right of appeal to the council, and from there, to the traffic penalty tribunal.

It seems clear from the council's statement that this does not apply here. The motorist's appeal has clearly not been considered under the statutory system - otherwise, having decided he should be refunded, the council would have to refund him. Here, they have said that they have passed the matter to BAS and will not decide the outcome or pay anything themselves.

This means that BAS have committed a criminal offence while acting as contractors to Bristol City Council. If Bristol City Council have instructed or procured their use of towing after Oct 1st, the council are equally guilty of the offence. There is no blanket exemption for councils who are not exercising lawful authority, and nothing in section 54 to suggest that ignorance of the law would be a defence.

Update 27 Oct: Bristol City Council have not commented further, but their PR Office confirmed they were not aware that towing vehicles without lawful authority has been made a criminal offence. The police have been informed of the incident.

No comments:

Post a Comment