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Mr Prickett's Decision on Robin de Crittenden's Hearing - delivered 21 November 2005

 
Robin de Crittenden

To read the hearing proceedings, click here

Adjudicator's Decision

1. On the 26th June 2003 a Parking Attendant (PA), say the Council, saw a motor vehicle, BG52 NOF, parked in Farrier Street in Worcester. The PA has recorded that this vehicle was first seen at 09.09hrs and then, at 10.15hrs, the PA issued this Penalty Charge Notice (PCN) alleging that the vehicle was parked in a free parking place for longer than the maximum period allowed.

2. On the 22nd August 2003 the Council sent a Notice to Owner to Mr de Crittenden - he made a number of representations to the Council, which it did not accept, and on a Notice of Appeal dated 23rd August 2005 Mr de Crittenden appealed against the decision of the Council. The sole ground of appeal was that 'The Traffic Regulation Order was invalid'.

3. Mr de Crittenden asked for a Personal Hearing of his appeal and I heard the appeal in Worcester on the 18th November 2005. Mr de Crittenden appeared and in the course of a long hearing he made detailed submissions to me and also called two witnesses to give evidence. At the end of the hearing I announced that I was reserving my decision and said that I would issue a Determination setting out my decision and the reasons for my decision.

Directions before the Hearing

4. Before the hearing Mr de Crittenden said that he wanted to record the proceedings. He argued that the NPAS Service Charter says that 'hearings may be recorded'. This is a reference to the NPAS recording the proceedings, something that is now done automatically in every case, and does not give a right to an Appellant to record the proceedings him/herself. Having considered the law I refused the request and set out my decision in a Written Notice dated 20th September 2005.

5. It is worth noting at this point that Mr de Crittenden raised the issue of recording/videoing the proceedings at the hearing. Having listened to his arguments I said that I would not permit recording/videoing but that he would be provided with a typed transcript of the official recording. The law provides, subject to any regulations, that it is for an Adjudicator to regulate his own proceedings. I did not allow Mr de Crittenden or his supporters to record the proceedings as I bore in mind that I would have no control over any such recordings and did not wish to see a recording manipulated in any way - there is no suggestion that Mr de Crittenden, whom I believe to be an honourable man, would manipulate the recording himself.

6. Mr de Crittenden asked for a preliminary hearing but as I could see no reason to hold such a hearing I refused the request. However, in an attempt to avoid the hearing having to be adjourned in the future I did issue Written Directions on 20th October 2005. The first ordered the Council, in view of the sole ground of appeal, to produce the original Traffic Order with any maps/plans attached thereto. The second Direction said that if the Council or Mr de Crittenden wished to rely on any written authority etc. at the hearing then that document must be served on the NPAS and the other party to the appeal at least seven days before the date of the hearing. No such documents were served.

7. Mr de Crittenden asked for a review of the decision not to hold an oral hearing for the purposes pre-hearing Dictions. The Chief Adjudicator on the 3rd November 2005 said that there was no reason to interfere with the exercise of my discretion.

The Hearing

8. Mr de Crittenden represented himself at the hearing. The Council did not appear at the hearing through a lawyer or any other representative. The Council did not despite my Direction produce the original Traffic Regulation Order at the hearing.

9. At the beginning of the hearing I explained to Mr de Crittenden that I was an independent Adjudicator and that the Lord Chancellor had approved my appointment and that I had no connection with this Council or any other Council. I told Mr de Crittenden, when he asked, that I had not sworn the Judicial Oath. I asked him he accepted the alleged facts surrounding the issue of this PCN and he told me that he neither accepted nor disputed them and that his appeal was 'entirely based on the provisions of the Constitution'.

10. Mr de Crittenden made a detailed opening submission and argued that the NPAS could not be seen as independent and called his first witness a Mr N Herron. Mr de Crittenden asked the witness a number of questions and also made a number of comments/observations. Several documents were given to me including the Judgement of the Divisional Court in the case of Colin Hunt v London Borough of Hackney and three other cases dealt with at the same time - this case is referred to colloquially as the 'Metric Martyrs' case or the 'Thoburn' case. Mr Herron told me that he did not consider the NPAS to be independent as he had overheard a conversation between the Chief Adjudicator and the Tribunal Manager of the NPAS and he referred to parking cases involving both the Rochdale and the Sunderland Councils.

11. Mr de Crittenden then made further submissions to me and then called his second witness, a Mr W Pendle. Mr Pendle is a computer specialist and he told me about, and gave me various documents, searches that he has carried out on the Internet into various words including 'fines'. After this witness I hear detailed closing submissions from Mr de Crittenden.

12. I have recorded here only a brief summary of the submissions made to me and the evidence I received. I deal in more detail below, in my findings, with these issues.

My findings

13. Looking at all the evidence in this appeal I am not satisfied, on a balance of probabilities, that the Council has proved that this parking contravention did occur. The burden of proof is on a Council and it is the Council to prove its case.

14. The Council has produced a copy of an invoice from a Motor Dealer showing that shortly before this PCN was issued this vehicle was sold to Mr de Crittenden. I accept that at the time the PCN was issued Mr de Crittenden was the owner of the vehicle. The law, RTA 1991, provides, with certain limited exceptions, that the owner of a vehicle is liable for any PCN issued to that vehicle. However, what parking contravention has occurred here? The PCN says that the vehicle was parked in a free parking space 'for longer than the maximum period'. What was the maximum time that a vehicle could lawfully park in this space? The PCN does not answer that question. The Council in its written submissions to me does not answer that question.

15. The Council in those submissions say that parking is restricted at the point where this vehicle was seen by a Order made in 2003 and that the parking place is identified on the 'attached map'. The extract of the Order provided to me by the Council shows that the Order was signed on 29th January 2003. Article 15 (1) of the Order provides that a vehicle shall not wait for longer than permitted in parking places 'as identified on the plans attached with this Order'. The map provided to me by the Council is dated '16/09/2005' and says it is Crown copyright and is used by the Council under a licence issued in 2004. Although this map seeks to identify the place where this vehicle was seen and says there waiting is limited to 45 minutes this cannot be the map referred to in the Order as this map was only licensed in 2004 and the Order is dated 2003! There is no copy of any plan attached to the Order identifying the place where the vehicle was seen parked as an area where parking is only allowed for a limited time.

16. The Council did not appear through a representative at the hearing. That is a matter for the Council. It also did not produce the original Order despite my Direction - I am amazed that the officials of the Council refused to comply with my Direction and I do not understand why they have shown such disrespect to me and to this Tribunal.

17. The Council has not, therefore, proved to me that this vehicle was parked, when the PCN was issued, in contravention of the Order controlling the parking of vehicles at this location.

18. Normally this would mean that I would allow the appeal of Mr de Crittenden but in his detailed arguments advancing his 'constitutional' case he argued that RTA 1991 was a nullity and so I was not a properly appointed Adjudicator and so I neither had the power to allow or dismiss his appeal and I should refer the case to Her Majesty's Judges so that they could hear and determine it. I, therefore, need to consider these arguments to satisfy myself that I have the power to hear and determine his appeal.

[BWMA note: there were two paragraphs numberd "18" on the decision; we are reproducing it as written]

18. Mr de Crittenden argues that the NPAS is not an independent organisation. He says that the NPAS is funded by a levy of 60p paid by each Council for every PCN that the Council issues. He and his witness refer to an overheard conversation - when a member of staff called Mr Herron on the staff member's mobile telephone it was left on when the conversation ended and a conversation in the NPAS between that person and another was heard by Mr Herron. Mr de Crittenden says also that a Determination of another Adjudicator, a Mr Knapp, in which he dismissed an appeal where a constitutional argument based on BoR 1689 was advanced (the 'Sefton Case') was circulated by NPAS to all Councils operating decriminalised parking schemes and that no other Circular issued by NPAS sent round a Determination. I see nothing in these arguments - an overheard conversation or the Circulation of a Determination do not prove systematic lack of independence neither do the funding arrangements themselves. Although requests were made by Mr de Crittenden I saw no reason to issue a Witness Order compelling the staff member who allegedly made comments in the overheard conversation to give evidence. I also see no reason, despite his request, to refer this matter to the Lord Chancellor for investigation.

19. The Annual Reports issued by the NPAS show that a large number of appeals are allowed by Adjudicators which does not indicate any bias by the Adjudicators in favour of the Councils. I explained to Mr de Crittenden at length that I was not bound by any decision of any other Adjudicator and that I was fiercely proud of my own independence. I pointed out that I was not 'employed' by NPAS and that the Chief Adjudicator was not my employer and could not tell me how to decide a particular case. Although not a 'Judge' sitting in a Court of law I am a member of a Tribunal exercising a judicial function. The appointment process of an Adjudicator confirms the independence of the Adjudicator. Although a recommendation that I be appointed was made to the Lord Chancellor by NPAS the final decision was that of the Lord Chancellor.

20. The crux of the argument, however, put forward by Mr de Crittenden is that RTA 1991 is not lawful as it does not comply with the provisions of BoR 1689. Prior to 1991 alleged parking contraventions were tried in Magistrates Court and the alleged offender was either acquitted or convicted - if convicted he/she was normally fined. The 1991 Act allowed Councils in London to introduce decriminalised parking and to impose penalty charges on alleged contraveners. The 1991 Act allowed for the scheme to then roll out, after the introduction by London Councils, to other Councils in England and Wales. The scheme now covers the Worcester City Council.

21. Mr de Crittenden referred to me the momentous events in this country in 1688/1689. After the abdication of King James II Parliament drew up the Declaration of Rights 1688/9 and the offer of the Crown to William and Mary was conditional on their accepting the provisions of that Declaration - they did accept and then in 1689 Parliament passed BoR 1689 which enacted the provisions of the Declaration of Rights. One provision of both the Declaration and the Bill is that 'all grants and promises of fines before conviction are illegal and void.' Mr. de Crittenden argues that this penalty charge is a fine that is being levied on him without having been convicted in a court. He also argued that as HM Queen Elizabeth II had signed the 1991 Act she may have acted against her Coronation Oath and BoR 1689 and so she has ceased to be the lawful monarch - I suspect that this was not being seriously advanced by him but was being argued to make a case. I do not find that by giving the Royal Ascent to the 1991 Act Her Majesty 'unqueened' herself.

22. There is a distinction in law between a 'fine' by a court after conviction and a 'penalty charge' levied by a Council for an alleged parking contravention. Whilst a fine is always a penalty a 'penalty' is not always a fine. A fine is imposed by a criminal court on convicted offender and, if the fine is not paid, the offender can, ultimately, be sent to prison for non-payment. If a penalty charge is not paid then a Council can enforce it by sending in the bailiffs and selling the 'offender's' assets but the 'offender' can never be sent to prison. I accept, however, in common parlance that a PCN is a 'parking ticket' and that the 'penalty charge' is seen as a fine. It seems to me of little use to stress the legal differences between a 'fine' and a 'penalty charge' in deciding whether the provisions of the 1991 Act are valid.

23. It can be argued although I do not accept this, that as the provisions of the 1991 Act contradict the BoR 1689, as Parliament is supreme, the latter Act must prevail. The 1991 Act does not expressly refer to BoR 1689. There is in law a doctrine of 'implied repeal' but this doctrine, as Lord Justice Laws explained in the Thoburn case (para 62) only applies to 'ordinary statutes' but not to 'constitutional' statutes that have special status. Laws LJ explains that these constitutional statutes, such as Magna Carta and BoR 1689, can only be repealed by a later statute if there are express or specific words in that later statute (para 63). RTA 1991 contains no such words and so I must find that that statute does not repeal any provisions of BoR 1689.

24. It is, I believe, necessary to consider the historical events that caused the Declaration of Rights to be published and BoR 1689 to be enacted. Prior to 1688 in the reign of King James II there was a suppression of Parliament and its powers and financial penalties were imposed on individuals by the Crown and those individuals had no recourse to the Courts. These actions by the Crown were contrary to the assurances given by King Charles II when the monarchy was restored in 1660. These events led ultimately to the so-called 'Glorious Revolution' and the abdication of James II in 1688. The acceptance by William and Mary of the Declaration of Rights issued in the era of true Constitutional Monarchy.

25. It is perhaps trite to say that the World has changed greatly since 1688/9. It is impossible now to fully appreciate a time when there were no motor vehicles or parking issues! BoR 1689 though, like Magna Carta, stands as a series of overarching provisions providing for a Parliamentary Democracy and giving legal protection to an individual from abuse by the State. It is, therefore, I find, necessary to read BoR 1689 in this way and to see as setting out statements of principle and to appreciate why it was enacted ie. to see the 'mischief' it was intended to rectify. Applying these principles the speeding 'ticket' given to a motorist who is, allegedly, speeding is not illegal because the motorist has the right to a fair trial in court. The parking 'ticket' given to the owner of a vehicle, because of an alleged parking contravention, is not illegal because the owner has the right to appeal against the Council's decision to an Independent Adjudicator. If the owner of the vehicle does not like the decision of the Adjudicator he/she has the right to ask the High Court for leave to apply for Judicial Review.

26. There can be no doubt also that the parking appeal system complies with the European Convention on Human Rights that was incorporated into English law by the Human Rights Act 1998, which must be regarded as a 'constitutional' statute. Article 6(1) of that convention provides: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." Here, for the reason I have already given, Mr de Crittenden has had, I find, a fair and public hearing before an independent and impartial tribunal.

27. For all these reasons I find that the provisions of the 1991 Road Traffic Act allowing for parking contraventions to be decriminalised are not inconsistent with the principles set out within BoR 1689. Accordingly, I find that I do have the lawful power to hear and determine an appeal brought by an individual against a Council who is seeking to enforce a penalty charge against that individual. I have already said that, if I did have the power, I would allow this appeal. I find that I do have this power and so do allow this appeal.

28. I should finally pay tribute to Mr. de Crittenden. He had carefully researched and prepared a case and advanced his arguments in a cogent manner. I was greatly assisted by his efforts.

Following Mr Prickett's refusal to refer the matter to HM Judges, Robin de Crittenden is applying for judicial review himself. More details to follow.

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