extreme bullying

[bridmna]

I used to wonder why the DVLA kept recieving bombs and anthrax through the post until they took it upon themselves to show me why.

 

My father has 2 cars, one which is for sale and left on a public road, it was untaxed for about 2 weeks and we don't contest that at all. The clamping fees were paid and the car was taxed the same day. We recieved a letter stating the offence still stands.

 

I sent a letter to them explaining my father is quite elderly and it is an honest mistake and basically attempted explain that the situation should be dealt with the sentivity it deserves.

 

They replied with an offer of an out of court settlement of £60 which we were more than happy to pay (as happy as you can be to pay a fine), strangely enough they refused to take card payment but insisted on taking a cheque which was to be recieved by 24/11/08, I was away at the time so I instructed my father to fill out the form and send them a cheque, he did so but he did misspell the first letter of the registration of the car. (Why did they need it anyway? If they didn't know then the car wouldn't have been clamped and we wouldn't have been sent letters about it.). They sent the cheque back with a letter saying it was the wrong registration and to fill it out again and send it back...of course by this time the 24th had passed so after sending it to them a 2nd time they sent it back saying it was too late and to await court summons.

 

My main defence is that when they first sent the cheque back they addressed the letter to myself and not my father and I was away at the time which is my perogative. So the letter was there until I got back because we don't open each other's letters (and wouldn't it be illegal to do so anyway?).

 

I pointed this out to them in my next reply, reminded them that they are not out of pocket only ourselves and to accept the cheque and forget about it as I'm sure the magistrates take a dim view of timewasters.

 

I recieved the usual bummff back along with the cheque for the 3rd time stating that because I admitted responsibility for my father, the letter was addressed to me and I am due to appear in court in January which I am now awaiting official summons for which is extremely inconvenient as I was going to fly out to Spain to work in January but now have to stay in the country to deal with a petty matter concerning a petty amount of cash.

 

I plan to fight this any way I can, I'm not sure I can get legal aid over a motoring matter...does anyone have some advice for me?

[Rob S]

I am wondering how they can summons you for the offence when you are neither the registered keeper of the vehicle or the owner. All you have done is to represent your father.

 

As for delaying your plans to go to Spain, why would you do that? if you have a job offer to go for why should you lose out because of an incompetent organisation! I would travel out there. They haven't served a summons on you as yet so don't put your life on hold for them.

[k67]

I agree, the court summons should be for the registered owner only.

 

As for the legal aid, i'm afraid that your out of luck! I am going through a similar thing with the DVLA, fradulent claim on their part, court summons etc etc. and I have tried the Citizens advice bureau, free internet legal advice and also various high street solicitors who have all told me that as this is classed as a "parking/motor" offence and not an actual criminal offence then you will not be able to get any help with legal costs!

 

I tried Law Answers: free legal advice and answers to any law question — law answers and one of thier solicitors gave me some pretty good free advice and also offered to take up the case if I wanted her to, unfortunately I too cannot afford solicitors fees so am having to defend myself!

 

If you have any advice on fighting them then please feel free to share!!

 

Good luck!

[patdavies]

I agree, the court summons should be for the registered owner only.

 

An interesting thought. Who, pray, is the registered owner? There is no such person - there is an owner and a registered keeper. They may, in fact, be the same person, but they are entirely different legal entities.

 

DVLA is only interested in registered keeper - ownership is not their concern.

[bridmna]

The first thing I thought too is that how can they take me to court and not the registered keeper? Surely that would get laughed out of court which is exactly what citizens advice told me. The summons still haven't arrived yet but they did give me the date and which magistrates court I'll be expected to attend.

 

I don't want to pay solicitors fees for a court system I have very little faith in and I don't see why I should.

 

Heres part of the last correspondence from them.

 

"All vehicle records are held under vehicle registration mark and can only be accessed with this information. All letters sent from this office carry the reference number as the registration mark in order for this to be quoted in any correspondence. If the registration mark is not quoted correctly we are unable to access the vehicle record and therefore unable to deal with any correspondence recieved.

 

Any letters sent from this office will be addressed to the person that enforcement action is being taken against and not necessarily the registered keeper. As you admitted liability for this matter no letters regarding the action taken will be sent to your father.

 

The matter was dealt will be dealt with at Neath Magistrates Court on 21st January 2009 and you should expect to receive a summons in due course.

 

As this matter is now in the hands of the court I am unable to accept your payment and I am returning your cheque for £60.00."

 

I find it hilarious how they expect me to sympathise with not being able to access any data without the registration number but do not show the same understanding when I do not open letters addressed with someone elses name.

 

You're right I shouldn't have to postpone working in Spain but if I don't attend court I'm sure it won't turn out well.

I've never in my life heard of them allowing "passing of the buck" like was said...surely its just the registered keeper that takes the head...does anyone have any knowledge of what they expect to achieve?

[Rob S]

When this case goes to court, if you plead not guilty then the DVLA will be obliged to serve you with copies of the evidence they will be relying on to prosecute you. This will include the so called admission of liability. Do you remember the form that your letter took when you wrote to DVLA on behalf of your father?

[flyingdoc]

If you get a court date, write to the court requesting an ajournment as you are unable due to work commitments to be in the country at that time. Tell them when you will be back and ask if you can schedule for after that time.

 

I see no reason why the court would deny this

 

just my opinion

[bridmna]

When this case goes to court, if you plead not guilty then the DVLA will be obliged to serve you with copies of the evidence they will be relying on to prosecute you. This will include the so called admission of liability. Do you remember the form that your letter took when you wrote to DVLA on behalf of your father?

 

Ok unfortunately I don't have a copy of the letter I sent to them but I did panic for my father's sake and took responsibility because I was under the impression it could result in points and he would lose his job as a voluntary NHS driver.

 

I accept responsibility for the original offence, what I am trying to fight is the way the out of court settlement was handle...or not handled so to speak.

We gave blatantly the full intent to pay but because of something very trivial they use it as an excuse to exort more money from me.

[Rob S]

To what extent did you take responsibility? Did you say that you own the vehicle or anything like that?

[bridmna]

No just that I was the one entrusted to sell it, I left it at a not so busy but popular spot for selling cars. I didn't go into any more detail than that but I did claim responsibility over being the one to leave it on the particular public road. Neither of us actually use the car in all honesty, less-so my father.

[Spunkymonkey]

As always, this is not legal advice. It is an opinion only based on my interpretation of the situation as presented. Having got that out the way:

 

What exactly are you expecting the summons to be for? If they've specified Magistrate's Court, and are actually using the word "offence" themselves then I'd expect it to be for the criminal offence of

 

using or keeping an unlicenced vehicle

 

under VERA 1994 S.29.

 

You've admitted to them that you left it on a public road but was it still taxed at the time you left it there? More to the point, can they prove beyond reasonable doubt (bear in mind this is a criminal matter so the burden of proof is with them) that you drove and left it there after the tax ran out? To do that, they would either need an admission from you or other evidence that it wasn't there when the tax ran out - and proving a negative is notoriously difficult!

 

As you are not the registered keeper, you cannot possibly be found guilty of "keeping" the vehicle on the road no matter what you've admitted, or what responsibility you've accepted - only the registered keeper can "keep" a vehicle anywhere!

 

 

So if the summons is in your name for using or keeping.... then, regardless of what you've already told them, you're not guilty unless they can prove beyond reasonable doubt that you actually drove the vehicle (ie: "used" it) to where it was spotted and clamped after the tax ran out.

 

Well worth fighting as it's a criminal offence and will therefore leave you with a criminal record on conviction!

[noomill060]

The registered keeper is responsible for ensuring that the vehicle is legal and is liable for fines etc. Says so on the V5!

[bridmna]

As always, this is not legal advice. It is an opinion only based on my interpretation of the situation as presented. Having got that out the way:

 

What exactly are you expecting the summons to be for? If they've specified Magistrate's Court, and are actually using the word "offence" themselves then I'd expect it to be for the criminal offence of

 

using or keeping an unlicenced vehicle

 

under VERA 1994 S.29.

 

You've admitted to them that you left it on a public road but was it still taxed at the time you left it there? More to the point, can they prove beyond reasonable doubt (bear in mind this is a criminal matter so the burden of proof is with them) that you drove and left it there after the tax ran out? To do that, they would either need an admission from you or other evidence that it wasn't there when the tax ran out - and proving a negative is notoriously difficult!

 

As you are not the registered keeper, you cannot possibly be found guilty of "keeping" the vehicle on the road no matter what you've admitted, or what responsibility you've accepted - only the registered keeper can "keep" a vehicle anywhere!

 

 

So if the summons is in your name for using or keeping.... then, regardless of what you've already told them, you're not guilty unless they can prove beyond reasonable doubt that you actually drove the vehicle (ie: "used" it) to where it was spotted and clamped after the tax ran out.

 

Well worth fighting as it's a criminal offence and will therefore leave you with a criminal record on conviction!

 

The car was taxed when it was taken there and was left there where it then ran out and they would not be able to prove otherwise. I'm quite confused because of the difference of opinions I'm getting. Without legal aid all thats left is citizens advice and they can't really give advice regarding fine prints of the law. Still haven't recieved the official summons yet for some reason aswell.

[Spunkymonkey]

Ok. When you receive the summons, if it's in your name and for "using or keeping an unlicenced vehicle on the road" then, quite simply, you're not guilty.

 

The Act is very clear on what the offence involves and (no matter how much they'd like to) they can't invent offences that don't exist:

 

Vehicle Excise and Registration Act 1994

 

Part III Offences

 

Offence of using or keeping unlicensed vehicle

 

29 Penalty for using or keeping unlicensed vehicle

 

 

(1) If a person uses, or keeps, on a public road a vehicle (not being an exempt vehicle) which is unlicensed he is guilty of an offence.

 

You didn't use it while it was unlicenced and you can give the date you moved it there and the tax expiry date as evidence - they then have to prove beyond reasonable doubt (remember this is a criminal charge so they need good proof!) that you moved it after the tax expired.

 

Also, no matter what you've "accepted" to them, you can't be guilty of keeping it because you weren't the registered keeper when it was seen and clamped.

 

So, a summons issued against you for that offence will be thrown out of court unless they can prove that you "used" it after the tax ran out

[patdavies]

Also, no matter what you've "accepted" to them, you can't be guilty of keeping it because you weren't the registered keeper when it was seen and clamped.

 

 

Oh yes you can.

 

Case law is Mohindra, which opens the definition of 'keeper' much wider than 'registered keeper'.

 

An example. I am the RK for my car. I lend it to my son for the day. For that day, although I remain the registered keeper, he is the keeper.

 

Consider a lease car. The owner will probably be a bank; the RK will be the leasing company; the keeper will be the lessee.

Edited January 2, 2009 by patdavies

[Spunkymonkey]

Fair point - and I admit I haven't seen Mohindra (will put that right tomorrow )but, from what's been posted, it seems that all that's been admitted is that he was the one to park it there.

 

Having parked it and (obviously) returned the keys to the registered keeper - who also happens to be the owner - from any reasonable viewpoint he's certainly not keeping it any more!

[bridmna]

My main aim of course is not to alleviate any blame from myself if it is to come back onto my father. I'd rather take the rap for it than him.

[Spunkymonkey]

Further, and more applicable, case law in Secretary for Environment, Transport and the Regions v Holt [2000]. This was directly in relation to a charge of keeping an unlicenced vehicle and it was found that the burden is on the prosecution to prove who the keeper was at the time of the offence.

 

Being the registered keeper isn't enough, as patdavies pointed out, (although being the registered keeper and asserting your "right" to silence is!!!) but in the absence of anything else, such as an admission from you to being the keeper at the time, meeting the required standard of proof would be next to impossible.

 

So, easy enough to escape any charge they bring but, as you suggest, they could then bounce it back to your father.

 

Of course, he would then have the defence permitted under SS v Holt that being the registered keeper doesn't mean he was keeping it at the time. The two of you would have to be pretty consistent in insisting that you each considered the other to be keeping it though and that coould get messy!

 

Perhaps the best thing is to wait and see what the summons actually turns up for - if at all. Being the DVLA it's quite likely that the talk of prosecution and even the expected court date is bluff you'll get contact from a DCA instead demanding payment of the penalty.

[bridmna]

It wouldn't suprise me if it was a bluff because why would they know the date and place in such a short time (1 week) and I still haven't been notified officially.

So assuming it is a bluff I should just pay the penalty?

[Spunkymonkey]

If you're happy to accept the mistake made and pay then that will certainly be the cleanest end to it.

 

Might still be worth paying and then putting a complaint in through their system about the refusal of your earlier cheque - even with the number wrong, it was still a valid payment after all!

[bridmna]

Well yeah obviously my logic would be they obviously found my father when having just a licence plate so why couldn't they do that with the reverse? They deal with partial number plates on a daily basis with the police so why not now because it doesn't suit them.

 

I'll keep all posted. thanks.

[bridmna]

The summons came through the door this morning with all the relevant forms and a copy of the original letter I sent them ages ago of which I'd mostly forgotten the content, this would be the admission they are referring to so I will type exactly what I said to them.

 

"To DVLA

In relation to the incident in question, the car has been up for sale for quite some time hence why it was parked some miles away from our house.

 

My father has not used the car for quite a long time and I have taken responsibility of the car to help sell it. Despite being the registered legal keeper of the car he was not responsible for this slight pretermission.

 

I am certain it is not the first time 'nor will it be the last that an elderly person with a torrent of health problems forgets to pay their car tax by a particular date.

 

I have paid the clamping fees and car has been since taxed. I take full responsibility for the alleged offence and I hope you can deal with this matter with the sensitibility it deserves."

 

It is me they are taking to court so now its just a case of damage control. I can plead guilty and not contest any fine brought upon me (which wouldn't require my attendance), or plead guilty but still contest the fine the prosecutor attempts to put on me.

 

Considering the finer points as in the DVLA addressing the letters to me and not my father and them claiming not to have the resources to make simple checks...do I stand a chance in court getting away with a small fine?

[Spunkymonkey]

Ok, from that letter you've fairly clearly accepted that you were "keeping" the car at the time of the offence so you really have to accept liability.

 

As for the matter of the possible fine, what is the summons actually for?

[bridmna]

Statement of facts

On the 09/09/2008 the defendant kept an unlicensed mechanically propelled motor vehicle, registration mark xxxxxxx at xxxxxxxxxx. The previous licence expired on 31/07/2008, and the annual rate of duty was £120.00

 

In accordance with Section 12(7) of the magistrates' Courts act 1980, the above statement of facts will be read out in court, if you inform the clerk of the court that you plead guilty and wish the court to deal with the case in your absence.

 

Notice of penalties

Derived from Sections 29 and 30 Vehicle Excise and Registration Act 1994.The maximum penalty on conviction is £1,000.00 or five times the annual rate of duty, whichever is greater. The prosecutor will also ask for a minimum contribution of £45.00 towards the legal costs.

In addition if you were the vehicle's keeper, the prosecutor will ask the court to order you to pay a further penalty in the sum of £20.00, being an amount equal to the outstanding duty for the period 01/08/2008 to 30/09/2008.

 

Also I've got a small HMCS handbook I'm meant to fill out with my current earnings and outgoing to ensure I can afford the fine. Currently I am unemployed on JSA so as long as my outgoings amount to roughly the same as I earn...what can they possibly order me to pay?

[Spunkymonkey]

Ok, it's a strict liability offence (that is, you didn't have to do it intentionally) so there's no real point in pleading anything but guilty.

 

You can, however, request the court to consider mitigating circumstances in considering the penalty:

 

In this case the lapse in tax was a genuine mistake made because you had only taken temporary responsibility for the car and hadn't realised the tas was due so soon.

 

You admitted your responsibility (rather than making DVLA demonstrate it) and re-taxed the vehicle as soon as you became aware of the mistake.

 

You (or, your father on your behalf while you were out of the country) also attempted to pay the Late Licencing Penalty when presented and within the "discount" period. This attempt at payment was refused by DVLA on a minor administrative point which was well within their power to overcome.

 

Given that collection of the LLP is normally the only action taken by DVLA in a case where the vehicle is promptly re-taxed, as in this case, it's reasonable to assume that the current charge has only been brought because of their decision to refuse your father's cheque.

 

Obviously, submit evidence of all previous correspondence including their letter returning the cheque and, if possible, the cheque itself in support of the fact that you've tried your best to "play the game".