I have been observing hearings at the London Tribunals where motorists can appeal against penalty charge notices issued by London Councils and Transport for London.
This particular hearing against a ticket issued by Kingston upon Thames Council caught my attention. Basically there is a restriction on a street which means that a motorist cannot enter between 2:30 pm and 4pm. This motorist waited nearby until they thought it was 4pm and then entered the street.
According to the Council, the time was actually 3:59 and 30 seconds, so the motorist was 30 seconds early and they therefore issued a penalty charge notice which is now £130.
Here is the Adjudicator's record of the hearing where the appeal was refused.
Case Details
| Case reference | 2240068350 |
|---|---|
| Appellant | Mohammed-Akbar Karim-Dayala |
| Authority | Royal Borough of Kingston Upon Thames |
| VRM | HX65XRB |
| PCN Details | |
| PCN | QT08609590 |
| Contravention date | 08 Dec 2023 |
| Contravention time | 15:59:00 |
| Contravention location | Latchmere Road junct. Latchmere Lane |
| Penalty amount | GBP 130.00 |
| Contravention | Fail comply restriction vehicles entering ped zone |
| Referral date | |
| Decision Date | 09 Apr 2024 |
| Adjudicator | Jack Walsh |
| Appeal decision | Appeal refused |
| Direction | Full penalty charge notice amount stated to be paid within 28 days. |
| Reasons | Mrs Khan, the authorised representative and the driver of the vehicle on the occasion in question, attended the hearing and presented the case for the appellant very clearly.As I explained in the hearing, this tribunal does not review the reasonableness of a decision by an enforcement authority (EA) to pursue any given penalty charge notice (PCN). Rather, when a case reaches the appeal stage, the tribunal must decide whether any of the limited statutory grounds of appeal is made out.In this case, the grounds of appeal selected are that the penalty exceeds the amount applicable and that the contravention did not occur. The penalty amount of £130 is the correct amount for this type of alleged contravention and no procedural impropriety is alleged (or indeed apparent) that would mean that the PCN is unenforceable and the applicable amount is nil. So that ground of appeal is not made out.The ground of appeal advanced at the hearing was that the contravention did not occur. It is for the enforcement authority (EA) to prove, on the balance of probabilities, that the contravention did occur. There is no dispute, and I find proved to that standard, that the appellant's vehicle drove onto the stretch of road in question. There is also no dispute, and I also find proved, that there was appropriate signage in place which was of the prescribed kind and that was adequate to inform road users of the nature of the pedestrian zone restriction. The EA must also prove that the vehicle drove onto the pedestrian zone during its prescribed hours. That is the issue in the case. Whether the vehicle drove onto the pedestrian zone during or after the prescribed hours is a binary question even if, as here, the EA's case is that the vehicle drove onto the pedestrian zone only 30 seconds before the end of the prescribed hours.Mrs Khan's evidence, which I accept, is that she was well aware of the prescribed hours of the pedestrian zone restriction and that she waited close to the entrance to the pedestrian zone until she thought that the prescribed hours had ended. She said that she looked at the (analogue) clock within the dashboard of the vehicle and, only when it showed 4pm, did she drive off and onto the road in question. Mrs Khan assumed that the clock in the vehicle was, like the vehicle itself, reliable. The notice of appeal however, says, "[t]he misunderstanding solely arose from an incorrect time display in my vehicle". Whether incorrect or not, based on a photograph of the clock helpfully provided with the appeal, it would appear to be quite difficult to ascertain a precise time in any event. There are increments for hours on the face of the clock, but no increments for minutes. Mrs Khan told me that the clock had not been calibrated, and questioned the need for such calibration. Mrs Khan (entirely understandably) relied upon a decision of an adjudicator of this tribunal to the effect that, in a marginal case, a motorist cannot be expected to calibrate their timepieces to the atomic clock and that "common sense" should determine whether a motorist is liable for a PCN. As I have indicated, though, it is not for this tribunal to substitute its view of whether pursuing a given penalty is "common sense" and whether a contravention is proved or not is a binary question, based on the evidence.Part of my reasoning for not following the decision relied upon, (by which I am not bound in any event) is that it does not refer to the legal "presumption of regularity". There is a rebuttable presumption of law that a mechanical device is working and in order at the relevant time (see Castle v. Cross [1985] R.T.R. 62 at p.66). This presumption extends to the accuracy of stopwatches, speedometers and the like (Nicholas v. Penny [1950] 2 K.B. 466). The EA relies on evidence of an electronic clock embedded within the camera that records evidence of the alleged contravention. It was on the basis of this clock that the PCN was issued in the first place. The EA says that this clock is synchronised to the worldwide 'global positioning system (GPS)' although I do not give much weight to that evidence, which is contained within a case summary.If there was evidence that it was possible to tell the exact time from the clock within the appellant's car and that that clock was calibrated to the GPS system, or some other verified source of accurate time, and if I accepted that the vehicle only entered the pedestrian zone once the driver had read 4pm on the clock, then the presumption that the EA's clock was accurate might be rebutted. However, I only accept the last of those elements. In the absence of evidence of calibration and given that the clock does not appear to me to be able to give a precise indication of time in any event, I do not find that the presumption that the EA's electronic clock was accurate is rebutted, to the standard of the balance of probabilities. On the contrary, the presumption remains, and so I find to that standard, that the vehicle entered the pedestrian zone during, and not after, the prescribed hours.In those circumstances the contravention is proved. |
One document which might have assisted the Adjudicator to a different decision is the Code of Practice on Civil Parking Enforcement published by London Councils which includes the following regarding times of restrictions:
b) Time restrictions/paid parking
Where a time restriction applies, CEOs should not issue a PCN less than two minutes before a restriction starts or less than two minutes after the restriction has expired. For example, if a restriction starts (or paid-for time expires) at 8.00am then a PCN should only be issued if the vehicle is in contravention after 8.02am. Similarly, if a restriction ends at 6.00pm then no PCNs should be issued after 5.58pm. It should be stressed that a vehicle in such a situation does not have the right to be in place for two minutes – this is not a grace period.
Although this Code of Practice is not legally binding on the Council, the Council would have to show a good reason why it did not comply with the Code when it was considering representations by this motorist. I would have argued that it was a procedural impropriety on behalf of the Council to have pursued this penalty in contravention of the Code of Practice that the Council has agreed to abide by. It is surprising that an Adjudicator is not aware of this Code of Practice and did not have regard to it.
But KINGSTON COUNCIL - what are you doing issuing a penalty charge notice for 30 SECONDS?
Traffic management (which is the objective of all the parking and traffic management regulations) or MONEY making? Which are you pursuing when you make decisions like this?