WIN against the DVLA in Southampton Magistrates

TofuMan · April 25, 2015

Dear Caggers,

I have just won a case brought against me by the DVLA. I told them I would win 9 months ago, but those twerps do not listen!

I found this site helpful in some ways when researching for my case but there was nothing exactly clear on my circumstances.

So now I know I have won I would like to publish the details of the case to be of assistance to others and before going ahead would like some tips from regular users here on how to best do that.

The case involved a car that was SORN, in a parking bay on a street opposite my house. It was clamped for being on the road. The dispute that followed was wether the car was on a 'public road' or not. The DVLA do not like the rather restrictive definition of 'Public Road' in Section 62(1) of VERA 1994, and prefer to use the definition from Section 192 of the Road Traffic Act 1988. This is where they thought they were being clever but actually have messed up.

In the process the DVLA lied to me (all in evidence I can show), to the local county council and effectively to my MP. The DVLA prosecutor also got a member of staff from the local council to make a statement that was untrue. All the while charging me £21 per day 'storage fees' for my impounded car since September 2014. They also tried to withhold documents I had requested under Data Protection and Freedom of Information Act (also to avoid my having them before Court) and only supplied them after the Information Commissioners Office wrote to tell them they had breached the Data Protection Act :-)

I won the case, because EVERYONE at the DVLA, NSL (the clampers), Havant Council, Hampshire County Council, etc was pretending the law did not apply. Luckily the Court decided the law did apply and they were ALL wrong.

This means that in potentially thousands of cases the DVLA and local councils are getting people to settle out of court for offences they have not actually committed.

In the process I may have tested an important piece of Law, which is the House of Lords ruling in Clarke Vs Kato which is legally binding on all lower courts. This makes it clear that a car parking space, in particular a car park/parking area CANNOT also be a road.

In my case there was no hesitation by the Court in agreeing it applied and nullified the DVLA's claim. In addition they agreed that the parking was associated with a Dwelling under Schedule 2A of VERA and therefore the clamping was unlawful.

What I have is the following:

Paperwork issued alleging the offence
My 'Step 1' first appeal/complaint letter - explaining the law that applied & DVLA reply
My 'Step 2' second appeal/complaint letter - explaining the law that applied & DVLA reply
My 'Step 3' second appeal/complaint letter to CEOs office - and reply
My Subject Access Request letter and documents (including the LOCS case management files)
My Freedom of Information Act letter and documents (including DVLA policy and staff training)
All the paperwork issued in relation to the threat of court action.
My 26 page 'skeleton argument' that comprehensively explored the relevant law and Won the case.
Dozens of Exhibits, including dictionary definitions, photos, extracts of law, DVLA internal training documents and letters.

My own documents and SAR material may prove helpful in providing an example of how to approach writing to the DVLA and other Government agencies. (I also took the UKBA/Home Office to the Ombudsman and won some years ago, using similar approach).

The Freedom of Information documents I intend to put into the Public Domain. These include:

Written Policy to not discuss the definition of 'Road' with the public (that's why you can never get a straight answer!)
DVLA's own 'definition of a road' (which is not exactly correct!)
Letters to NSL explaining clamping policy with FAQs
NSL clampers handbook explaining when they can/cannot clamp

Now I am taking the matter up with the Department for Transport's Independent Complaints Assessor and I shall also be presenting a complaint with the Parliamentary Ombudsman for Maladministration.

I may even create a little website to host the documents with explanatory notes.

Your comments and suggestions are very welcome. It will take me some time to organise it all, but feel free to ask details about what I have.

Edited April 25, 2015 by TofuMan
Correcting details, spelling, factual accuracy

TofuMan · April 25, 2015

Can I attach PDF files in these posts?

TofuMan · April 25, 2015

Just as a teaser... I shall copy the Facebook post I did for friends as this was unfolding in January:

-------------------------------------

I had pre-trial Magistrates court hearing yesterday in 'DVLA vs Damian'.

It was agreed that the DVLA will have to prove to the Court, beyond all reasonable doubt, that a parking area is a road.

That will be interesting as a House of Lords ruling in 1998 said that car parks cannot be roads.

If you are interested in knowing more about the internal workings of the DVLA read on:

I did a Subject Access Request and Freedom of Information request on DVLA to dig deeper. They then attempted to withhold information. The Information Commissioner's Office intervened to advise them they had breached the Data Protection Act and must give me everything :-)

I was given the DVLA's internal casework records on my file. All the communications between staff and notes and records they made. I was also provided with internal instruction manuals, policy documents and the wheel clampers handbook...

Did you know the DVLA have a written policy that staff should not discuss with the public the definition of a 'road' ?! That is because they are not even sure themselves - it can vary according to circumstances.

What I found in my case notes was the DVLA's staff have been lying. It seems to be an institutionalised contempt for us 'targets' as they call us.

The 'Customer Complaints Resolution Team' have a 3 step complaints system, which you are told means the complaint is supposed to be 'investigated' each time and reviewed. Supposedly at the highest level the complaint ends at the CEO's office. In my case it went like this:

Step 1.

They refuse the complaint ignoring any details you raise (i.e. it's unlawfulness).

Step 2.

The Step 1 person emails a copy of their letter to the Step 2 person. He then repeats what you were told in Step 1, refusing your complaint and ignoring all the details you raise, including the complaint that they ignore important details (i.e the law).

Step 3 (the DVLA CEO's office)

The 'Ministerial Team' now know you have involved your MP, so they write saying they will definitely 'escalate' your complaint and 'investigate' it.

Your Step 3 complaint is sent back to the Step 2 person, who refuses your complaint, ignores all the details you raise, including the complaint about him ignoring all the details in Step 2.

He then gets a colleague to sign the letter.

Then if you feel you have been treated rather badly by the DVLA you could decide to take the matter elsewhere. They will not advise you of this, but you have a right to complain to the Department for Transports 'Independent Complaints Assessor'.

If you do complain to them, the Step 2 guy will start trying to interfere with that too :-)

Step 2 guy will also, without waiting for any further evidence that you have broken any law, without seeking any legal advice, impound your car, and start imposing a £21 per day 'storage fee' (which started in September '14).

Step 2 guy will also get the legal team to start a criminal prosecution - however he will offer you the chance to buy your way out of the misery he is inflicting upon you with an Out of Court settlement, providing you simply admit guilt.

From his perspective it is important you admit guilt as 1) he will not get into trouble for this mess and 2) they can then accuse you of a second related offence (e.g. no insurance) and pursue you for that too.

So thats why I am in court.

However, I also found that of over 20,000 Section 29 cases prosecuted every year the DVLA withdraw 7.5% of them before trial because they realise they cannot possibly win.

-------------------------------

At that time I was unaware that the case would carry on until April 24th and cause a lot of unnecessary difficulties, including returning to the UK for hearing that then got postponed. Very disruptive to personal and business life.

I learned a lot in this process... but I am now only an expert in a thin slice of the Law. But that is all you need sometimes :-)

TofuMan · April 25, 2015

Thanks! OK I might start by uploading some of the FoI documents. In particular the DVLA letters to NSL and clampers Handbook.

TofuMan · April 25, 2015

The first document from my Freedom of Information request that I would like to share is the Operating Instructions for 'DVLA's National Wheel Clamping Contractor' version 2.1 which is in force at the time of writing (April 2015)

NSL (previously NCP) are the DVLA's clamping goons. They are supposed to have this manual with them at all times and follow its instructions to the letter. Unfortunately they do not - for example they will not check with a local authority whether the land is private/public, maintained at public expanse, etc. BEFORE they clamp your car.

I draw your attention in particular to 'Appendix 1 - Flow Diagram' on page 19, which was useful in my court proceedings.

Here you will also see that the third box in the chart contains a falsehood:

' "is the vehicle on a public road?" '

(as defined in VERA 1994: includes verges, pavements, lay-bys and parking bays on the public road)

If unsure, check with Local Authority

VERA makes no such definition... VERA does not define 'Public Road' beyond saying that it is a 'road maintained at public expense'. So here the DVLA are incorrectly trying to apply a vague definition loosely derived from Section 192 of the Road Traffic Act 1998 for their own convenience. (This definition only strictly applies to RTA 1998 offences and must be vague to deal with offences such drunk driving in parks for example, or being high whilst in charge of a unicycle, etc).

In over 20 years VERA has been modified amended many times but Parliament has never seen the need to change the definition of Public Road.

Under changes brought by the Finance Act 2008, if you have NO tax and NO SORN the Govt can effectively take the car from any public place as they can hold it in lieu of the 'debt' you owe for lack of tax... However, if you have SORNed your car the rules are different - many places are exempt from clamping, which your friendly local clamper will not necessarily be aware of.

The DVLA and NSL tried to justify clamping my (SORNed) car by repeated claiming it was in a 'public place' even if it was not a road, believing that that element of the RTA definition could save them... they were wrong.

I must also add that the relevant House of Lords ruling states that where the the term 'road' appears on its own, it means only road. (The DVLA's legally dubious twisting of definitions shall not apply!)

Unfortunately, with this grossly incorrect definition a clamper may feel confident to go ahead and clamp even when he should not - thereby possibly interfering with a car in a public car park, which could constitute a criminal offence. :-)

Looking at the boxes further down the flow chart, in particular the Yellow box, you will see the definition is far more complicated. There are in fact many places that he cannot clamp - 'public' or not.

OOOPS, TOO LATE - he has already clamped the car and driven off. ;-)

Edited April 26, 2015 by TofuMan
Adding clarification

TofuMan · April 25, 2015

Just ensure they're suitably redacted so as to protect your identity from the petulant DVLA, who will no doubt
be gunning for you now!

Don't worry guys I am well versed in the legal aspects of privacy etc... they can't touch me. (this is all Public Interest anyway)

For the Freedom of Information documents - which were issued formally (if reluctantly) by the DVLA as 'FOIR4227' , they are already 'Public Domain' so I am merely sharing them :-)

With the communications between DVLA and Myself, if I publish any I shall Redact them and even provide the staff with appropriate pseudonyms!

Edited April 25, 2015 by TofuMan

TofuMan · April 25, 2015

The following two documents were provided under a Freedom of Information Request. I requested that they provide to me what internal documents they have that provide a definition of 'public road'

From my official response:

~~~~~~~~~~~~~~~~~~~~~~~~

You asked for:

1. A full and current copy of the Vehicle Excise and Registration Act 1994 (with all amendments) which is used by DVLA staff for legal reference. (Please do not refer me to the 'legislation.gov.uk' website - I am requesting a fully amended copy that is used internally).

Please find attached the current copy of the Vehicle Excise and Registration Act 1994 that is held. While DVLA holds this copy of the legislation it is information that has been obtained from a third party source and is therefore subject to copyright. You are able to use it for your own personal use but permission to use it for any other purpose will be required. You are already aware of legislation being generally available via. legislation.gov.uk/.

2. Copies of any guidance, training documents, minutes of meetings and discussions, etc between the DVLA and NSL Limited, that make reference to the interpretation and enforcement of Section 29 of the Vehicle Excise and Registration Act (VERA) 1994.

3. Copies of any guidance, training documents, minutes of meetings and discussions, etc between the DVLA and NSL Limited, that make reference to the interpretation and enforcement of Schedule 2A of VERA 1994.

4. Copies of any guidance, training documents, minutes of meetings and discussions, etc between the DVLA and NSL Limited, that make reference to the interpretation of the Finance Act 2008 in relation to its consequent amendments to VERA 1994.

5. Copies of any guidance, training documents, minutes of meetings and discussions, etc between the DVLA and NSL Limited that make reference to the interpretation and enforcement of The Vehicle Excise Duty (lmmobilisation, Removal and Disposal of Vehicles) Regulations 1997.

6. Copies of any guidance, training documents, minutes of meetings and discussions, etc between the DVLA and NSL Limited relating to the interpretation of the term 'Public Road' within VERA 1994.

In answer to your questions 2-6 DVLA does not hold copies of guidance or training documents that make reference to the interpretation and enforcement of legislation mentioned in your questions.

However attached is a copy of the Operating Instructions for DVLA’s national wheel clamping contractor. Page 3 refers to The Vehicle Excise Duty (Immobilisation Removal and Disposal of Vehicles) Regulations 1997 and page 19 refers to The Vehicle Excise Registration Act 1994 and public road.

DVLA does not hold copies of minutes of contract meetings with DVLA’s national wheel clamping contractor that contain reference to the interpretation and enforcement of Section 29; Schedule 2A of the Vehicle Excise and Registration Act (VERA) 1994 and public road; the Vehicle Excise Duty (Immobilisation, Removal or Disposal of Vehicle) Regulations 1997; or the consequential amendments to VERA stemming from the Finance Act 2008.

7. Copies of any Policy documents, training documents, minutes of meetings and discussions within the DVLA relating to the interpretation of the term 'public Road' within VERA 1994.

Attached at annex A is an extract from the operating instructions available to staff in relation to the definition of a public road.

Annex B provides an extract from the Vehicle Licensing Enquiry Manual which also provided the definition of a public road and is available to staff.

The definition of a public road can also be found in Section 62(1) of VERA, a copy of which is also attached.

Number of prosecutions that have been brought by the DVLA in relation to Section 29 VERA 1994 in the year 2013.

DVLA holds this information for financial year 2013/14. DVLA prosecuted 21,863 section 29 cases

Number of those prosecutions (in 2013) that were subsequently withdrawn by the DVLA

DVLA holds this information for financial year 2013/14. 1639 withdrawal letters were issued prior to hearings that advised that cases would not proceed.

DVLA does not hold figures that record how many prosecutions were withdrawn at Court. In order to provide this information each case would need to be accessed.

We estimate this to exceed £600. Under Section 12 of the FOI Act, DVLA is not obliged to comply with a request where the estimated cost of determining, locating, retrieving and/or extracting the information exceeds £600. As it is the DVLA’s policy not to respond to requests for information that would exceed the appropriate cost limit, I am afraid that the information will not be supplied to you.

Number of those prosecutions (in 2013) that were unsuccessful or not accepted by the courts.

DVLA holds this information for financial year 2013/14. 99 Section 29 cases were unsuccessful at Court.

Number of those prosecutions (in 2013) that were withdrawn or unsuccessful because of a failure by the DVLA or its contractors to observe the exemptions detailed in Schedule 2A of VERA 1994.

DVLA does not hold statistics to show how many prosecutions that were instigated but were withdrawn or unsuccessful because of a failure by DVLA or its contractors to observe the exemptions detailed in Schedule 2A of VERA 1994. In order to provide this information, we would need to access each individual case. We estimate this to exceed £600. Under Section 12 of the FOI Act, DVLA is not obliged to comply with a request where the estimated cost of determining, locating, retrieving and/or extracting the information exceeds £600. As it is the DVLA’s policy not to respond to requests for information that would exceed the appropriate cost limit, I am afraid that the information will not be supplied to you.

~~~~~~~~~~~~~~~~~~~~~~~~

Can you believe that?! The DVLA keep no records of cases they LOSE? No records of why shonky and unlawful prosecutions fail and why?? No wonder these fools cannot learn from their mistakes.

Of course, I do not believe it. Moreover they can also try to withhold documents they may have that would weaken their ability to raise monies under a clause in the Freedom of Information Act... so if you ask to find out the most common reason they lose for example they could lawfully decline to tell you in case we all tried it!

I have attached:

"FOIR4227 - Annex B Vehicle Licensing Enquiry Manual"

"FOIR4227 - Annex A Definition of a public road"

This is where I discovered they have a policy of not discussing it with the public. So that is why forums are full of people complaining that when they ask the DVLA about what is or isn't a 'Public Road' they cannot get a straight answer.

The next document I would like to upload but cannot is the DVLA's internal copy of VERA. I believe this may be subject to copyright restrictions. (it contains more than VERA it has notes included)

The public version of VERA (legislation.gov.uk/ukpga/1994/22/contents/) is unreliable because of the large number of amendments outstanding. this makes it difficult to know what parts of it may have been amended or repealed by later Acts.

If you find yourself in a legal dispute that involves VERA I suggest you request from their Information team (under a formal Freedom of Information Request) the full copy they use internally. You should say it is the copy provided in FOIR4227 'Reproduced by permission of Reed Elsevier (UK) Limited trading as LexisNexis'. They will have no legal basis to withhold it from you.

It was clear that the DVLA were withholding information from me.... could they really be seriously admitting that they keep NO RECORDS of communications or meetings with their exclusive contractor NSL?

So I requested an Internal Review, to check they had actually complied and shall post the further documents in another post.

Edited April 25, 2015 by TofuMan
Spelling

TofuMan · April 25, 2015

After my complaint that it was frankly unbelievable that the DVLA had NO RECORDS of any communication between them and their contractors, I received this response on the 16th December (by which time prosecution in Court was looming!):

~~~~~~~~~~~~~~~~~~~

Thank you for your e-mail dated 13 November in which you expressed dissatisfaction with the response to your Freedom of Information request sent to you on 12 November. DVLA has treated your e-mail as a request for an Internal Review and revisited your initial request for information sent on 18 October.

Having reviewed your request, it appears that DVLA interpreted your request too narrowly and for this I apologise. While DVLA does not hold copies of any guidance, training documents, minutes of meeting and discussions etc with NSL Ltd with regard to questions 2 – 6 of your request, information is held with regard to such between DVLA and NPC who now trade as NSL Ltd.

Therefore please find attached relevant information between DVLA and NPC in relation to guidance given when changes to legislation were introduced in 2008.

The information redacted from the attachments is the names of individuals and that information has been redacted under section 40(2) of the FOIA because it is considered to be personal information. DVLA has to consider whether releasing the information would breach any of the data protection principles. In this instance, it would not be fair to release information that could lead to an individual being identified especially where removing that information has no impact or affect on the information being released.

~~~~~~~~~~~~~~~~~~~

The first two documents I have are minutes from a meeting with NSL (Then NCP) in 2008

'FOIR4227 - Wheelclamping Contract Meeting Minutes redacted agreed with FOI'

'FOIR4227 -QA Briefing'

They make moderately interesting reading. They show the DVLA responding to the change in the legislation caused by the 2008 Finance Act, which clearly excited them for its revenue making potential.

It also clearly shows that they are aware the public will be unaware of these sudden and dramatic changes...

More attachments from this FOIR will follow in next post.

TofuMan · April 25, 2015

The next documents are 'Annexes' from 2008, provided by DVLA to NSL (then NCP). I believe these documents are still correct (in terms of DVLA policy) today.

FOIR4227 - Annex A: "VED Enforcement Beyond the Public Road"

FOIR4227 - Annex B: "Matrix For When Wheel Clamping Action Can Be Taken"

FOIR4227 - Annex D: A list of automatic authorisation messages about status of vehicles, to clamp or not...

FOIR4227 - Annex E: Letter 03/09/2008, "NEW POWERS FOR WHEEL CLAMPING UNLICENSED VEHICLES IN OFF ROAD AREAS"

FOIR4227 - Annex C: is a table of fees and fines which is now out of date - so not uploaded.

If any one is curious about how these documents relate to Section 29 offences etc, feel free to ask how I applied them.

Also I strongly advise making yourselves familiar with Clake vs Kato or to give it it's full name:

Clark (A.P.) and Others v. Kato, Smith and General Accident Fire & Life Assurance Corporation PLC

Cutter v. Eagle Star Insurance

http://www.publications.parliament.uk/pa/ld199798/ldjudgmt/jd981022/clarke01.htm

In my court case yesterday this Lords Judgement was definitive in determining that my car was in a 'car park' not on a 'public road'.

The Court also said without any doubt that the area of land in question, a small parking area I was in, was 'associated with a dwelling' in this case my home and that of neighbours. So the clamping was not correct in any case.

Just as I told the idiots in July 2014. :-)

This is important because the DVLA regularly provide false information to people. They tell you the land must be 'private', or that car parking spaces must be allocated or numbered, etc. This is all utter nonsense - there is NO SUCH REQUIREMENT under VERA and furthermore the DVLA's own handbook and instructions to contractors advise that you do not even have to have your car outside YOUR OWN HOME!

The advice DVLA staff give to the public can directly contradict the guidance they give to their contractors.

Under Schedule 2A of VERA the relevant issue is whether the land is associated with a dwelling place and normally enjoyed with it, even if it is not your dwelling.... I shall expand on that later I am sure.

OK thats a good start, I am going to go out for a while and will answer any questions or upload anything else that may be helpful later :-)

Edited April 25, 2015 by citizenB
removed and replaced perjorative

TofuMan · April 25, 2015

Out of interest, do you have any documents from the court showing that the case against you has been thrown out?

To be pedantic... it wasn't 'thrown out' - as in being inadmissible or failing on some legal process technicality, etc. It was heard by the court and the DLVA simply LOST because they had wrongly interpreted the law.

I only won the case on Friday afternoon, so I have not yet received the paperwork. But I was there, so I heard the Court say 'We find in Favour of...' ME! Also that the prosecutor stated that they would not appeal. :-)

For future reference the case details are:

D Eadie vs DVLA

Case 1400515280

Heard 24th April 2015

Southampton Magistrates' Court.

I have requested a written copy of the Judgement of as I will need it for the next steps I want to take. I have no idea when or how it may be published elsewhere nor how much detail they will go into - they were quite brief in Court. They spent a long time reading the documents and then when we came back in they sat us down issued the Judgement immediately confirming the points of Law I had always argued applied in my case did indeed apply - and that was it.

Edited April 26, 2015 by TofuMan
correction

TofuMan · April 25, 2015

Did you receive all your expenses/costs in the Judgment ?

Not really. I 'won' the right to be innocent.

I was being prosecuted and represented myself so no official costs to recover (they cannot compensate for wasting hundreds of hours thinking about it and dealing with the cowardly dogmatic automatons at DVLA). :-(

They asked if I would like 'out of pocket' expenses for the day, which was only £4.50 parking and a bit of diesel, so I said we'll not worry about that!

The damage and interruption to my business and personal life may be compensated via other channels later... (Not giving anything away to DVLA just yet!)

Edited April 25, 2015 by TofuMan
grammar/spelling

TofuMan · April 25, 2015

You could have claimed quite a bit, days off work, letters sent... Sounds like you would have been in for £100+ but probably more.

Well, I look at it like this...

I did not:

do something 'borderline' unlawful or even unreasonable
then get prosecuted
then got away with it

What actually happened:

I acted entirely within the law at all times
I got incorrectly targeted by DVLA clamper
I advised NSL & DVLA of their error immediately and was ignored
I wrote to advise them of the correct law and their error and was given utterly false information and excuses
I wrote a second time to advise them of the correct law and staff connived to dispose of the complaint
I wrote a third time to the CEO and was lied to by DVLA staff who then passed it back to previous staff to connive again
I had my property unlawfully removed by a state Agency without a trial or an order from a Court
I asked for my personal data and evidence of DVLA policy to prove they were right, they tried to withhold it
I was the dragged into a court to defend against a prosecution for a criminal offence I knew I had not committed
I was presented with different justification at trial to what had been said previously - with dodgy 'evidence' knocked up by my local council
I was found to be entirely innocent because I never did anything illegal in the first place
It was confirmed by the Court that I had always been correct on the interpretation of the law

So, I'm not exactly delighted to have 'won'! Sure, it's better than losing but I never should have experienced ANY of that.

The Magistrates' Court is not the place for dealing with such a debacle, they just stopped the nonsense happening. Its my turn now.

I think the final cost to them will be rather higher than £100. I'll detail that when the time comes ;-)

Edited April 26, 2015 by TofuMan
More accurate response and characterisation of the siuation!

TofuMan · April 26, 2015

To put some of the facts I have detailed so far into context, here are three ariel images of the actual location in question in my Court case.

1. Ariel map showing my car parked in the vicinity of my dwelling, in a parking area that is normally enjoyed with that property.

(These are not private spaces, they are not numbered and not limited to residents. All of those details are irrelevant!)

[ATTACH=CONFIG]57283[/ATTACH]

2. This map is based on a map provided to the DVLA from my local council. This displayed all the 'adopted highway' in pink, which they claimed was ALL therefore 'Public Road', i.e road maintained at public expense.

The problem is Public Road has to be Road in the first place.... a parking court at the back of my property and parking areas along the road are not 'road'.

[ATTACH=CONFIG]57282[/ATTACH]

3. A map showing what the House of Lord's Judgement in Clarke vs Kato would define as areas that may be potentially be considered 'road' within the definition in Section 192 of Road Traffic Act 1998. The car parking spaces and parking court definitely CANNOT be road.

[ATTACH=CONFIG]57285[/ATTACH]

I pointed out in my THREE letters to the DVLA that the 'pink map' contained an error in showing the parking court as a 'road' and was therefore unreliable evidence. They would not accept this. Yet the prosecutor decided not to use this map after all! (He had brought it to the pre-trial hearing). Instead he got my obliging local council to create a new map and a supporting letter claiming these car parking spaces, perpendicular to the road were a 'lay-by'. :-) FAIL

Edited April 27, 2015 by TofuMan

TofuMan · April 27, 2015

My case tested both these pieces of law. I won the case - so the matter is now settled.

It could be that the DVLA consider that those parking bays are 'on road parking bays' and are part of the road. 'Public Road' within the meaning of the Vehicles Excise & Registration Act 1994 is different to that of 'Road' within the meaning the Road Traffic Act 1998, and can include footways, verges etc., if repairable at public expense.

This argument is what the DVLA presented and it failed in Court. A House of Lords precedent from Clark vs Kato applies. So car parks, parking areas and parking bays CANNOT be road.... EVER. (I may explain in more detail later but even bays painted on the main carriageway could be considered exempt!)

Also the exemption in Sch.2A, (1A), (b), V.E.R.A. Act 1994, only gives exemption to a place which is normally enjoyed only by the occupiers of one or more of the dwellings, so if anyone can park there, it is not exempt from clamping.

DVLA may tell you that - but that is not necessarily correct. It will depend on more factors than whether the public have access or use. Again this is also now settled in Court and I won arguing that this was incorrect interpretation of Schedule 2A.

I would urge anyone reading this to look at the PDFs I have uploaded earlier in this thread - they show the DVLA's internal documents acknowledge it is not so simple - particularly relevant is the Matrix of where they can and cannot clamp, the FAQs presented by DVLA to NSL and the flow chart in the Operating Instructions handbook for clampers. (Not that any staff at the DVLA or NSL seem to have a clue about these)

The DVLA make many incorrect statements and claims when dealing with public enquiries - these even contradict their own internal policies (See PDFs). There is NO REQUIREMENT in VERA 1994 that the parking is strictly allocated to residents, or that bays are individually numbered or allocated to dwellings. The vehicle in question does not even need to belong to a resident - it could belong to a friend who is keeping it there... if it is 'land associated with a dwelling' they MUST NOT CLAMP. (these are all detailed in the PDFs I obtained under the Freedom of Information Act)

In Court the DVLA argued that while the parking spaces were 'predominantly used by residents' they could be used by anyone and there were no restrictions limiting it to residents only - therefore Schedule 2A did not apply.

The Court decided they were wrong in assuming these things are mutually exclusive. Court ruled that the parking areas amount to a 'council car park' and while it was open to any public to use it was ALSO indisputably associated with the surrounding dwellings.

I know for a fact that the council installed those parking bays in the 1980s as residential 'parking for the residents' which I could prove to the court with letters from 1984 and 1985 in which a resident is being told to use the 'parking facilities provided' and how the council had spent a long of money providing 'parking for the residents'...etc. Had I gone exploring in the local council archives I could have produced a wad of evidence on that. Only during prosecution (30 years later!) did they start pretending the parking areas were 'lay-bys'.

I presented a comprehensive argument on the use of language in legislation (all from Clarke vs Kato) and supported it with dictionary definitions and illustrations of photographs of parking spaces around the local estate showing that these parking areas are common along many roads, and even in cul-de-sacs where there is no traffic - which undid the claim that these are 'lay-bys' installed to avoid obstruction of the highway.

I pointed out to the court that when the estate was built in the 1950s/1960s almost none of the residents had cars and it would be a bizarre approach by the council if rather than create parking areas for the residents as car ownership increased, they decided to instead install a dozen miles of 'lay-bys'. In addition the definitions of 'lay-by' simply to not fit the description of the land.

House of Lords precedent means the Court must take into account the purpose and function of the land, and whether it has the characteristics of a road. It was created with the purpose of being a car park, had always been used as a car park. It provides no facility to commuter or local shoppers... the councils own letters stated it was used 'predominantly by residents' historical letters show the council telling residents to use them.... so the Court had no hesitation to state that Schedule 2A applied.

They held up a photo of the car in the parking bay with a clamp on it for the prosecutor to see and said 'This is NOT a road!'

I will probably provide more on the Clarke vs Kato case and how it applied and the interpretation of it in relation to DVLA's lies. It is important people understand this House of Lords precedent as it is binding on ALL lower courts all the way down to the lowest courts - Magistrates.

It has serious consequences for the thousands of people who are wrongly accused of criminal offences under Section 29, but who cannot tell if they are innocent or not because the DVLA will refuse to discuss it with them (again see PDFs for Policy telling staff to avoid discussing definition of road).... so people who are under threat of having proprty seized and destroyed without a court proving them guilty need to have access to the PDFs I have uploaded to determine if they actually have committed an offence or not - because the DVLA will not give an honest answer.

Edited April 27, 2015 by TofuMan
Clarification

TofuMan · April 27, 2015

This is my old car clamped while parked in the 'vicinity of my dwelling' (marked in red) in a parking area used by the residents... within a marked parking bay:

This is one of the letters a neighbours gave me from the 1980's showing that contrary to the Councils current claim that the parking areas throughout the estate are all 'lay-bys' the purpose and function of these areas was always to provide parking for the residents... this was accepted by the Court.

In the letter you can see the Council

1) they created the areas to 'provide adequate parking for the residents'

2) They urge my neighbour to 'make use of the facilities provided'

TofuMan · April 27, 2015

Relevant extract from Clarke vs Kato which is the judicial precedence on this issue (with my emphasis):

"The initial analysis distinguishes the carriageway and the car parking areas within the car park. That may be an acceptable analysis in some cases, although it may lead to undesirably fine questions whether a vehicle was in a bay or on the carriageway. But once that analysis has been adopted it is not then permissible to claim that the car parking areas are an integral part of the carriageway and so establish the whole as a road.

Once the analysis has been made which distinguishes areas of road from areas of car park, the latter cannot simply be integrated with the former

."

This was cited by the Court in their Judgement.

The Lords judgement in Clark vs Kato goes further stating (with my emphasis again):

"

The distinction between a road and a car park which is reflected in the ordinary use of words is reinforced by a consideration of the language of the legislation

. Section 25 of the 1988 Act which prescribes the offence of tampering with a vehicle starts with the words "If, while a motor vehicle is on a road or on a parking place . . . ." This plain recognition of a distinction between the two things cannot, as was suggested in argument, be put aside as simply a fortuitous anomaly in a consolidation statute, particularly when one finds the same distinction in the earlier appearance of the provision in section 29(2) of the Road Traffic Act 1930. Indeed the recognition of parking places for vehicles as a distinct matter can be found in section 68 of the Public Health Act 1925 where a specific definition of the term is given. A corresponding distinction can be seen in the language of the Road Traffic Regulation Act 1984 between roads and parking places. While there is a difference in the precise terms of the statutory definition in that Act from those in the Act of 1988, there appears to be no difference intended as regards what is meant by the words "any other road to which the public has access." The distinction recognised by Parliament between a road and a parking place can be found in the provisions forming Part IV of the Act of 1984 and the definition of "street parking place" and "offstreet parking place" in section 142. In particular section 57(1)(b) empowers the provision and maintenance of "suitable parking places, otherwise than on roads, for vehicles . . . ."

While a parking place could be on a road, it is nevertheless not itself a road. All the less is there reason to regard a car park as a road

."

You can read the full House of Lords Judgement via the link below:

Clark vs Kato

[1998] WLR 1647, [1998] 4 All ER 417, [1998] UKHL 36

http://www.bailii.org/uk/cases/UKHL/1998/36.html

Edited April 27, 2015 by TofuMan
To add citation reference

TofuMan · April 27, 2015

Your case was dismissed, but it may not be valid argument in other similar cases, and a different court may not agree.

Then someone in that position will probably have good grounds to appeal. No Magistrate can contradict a House of Lords ruling where it is applicable which was agreed in my case.

The Clarke v Kato case was a Road Traffic Act matter,

Correct. The relevance is the DVLA do not like the narrow language of VERA, so they try to apply the definition in Section 192 of the Road Traffic Act... not because it is more precise, but because it is more vague.

They apply it incorrectly - and once they reach for a definition in the RTA then the Clark vs Kato judgement becomes relevant... because that deals specifically about how to interpret Section 192 in the context of a car park or parking area. It is binding on all lower courts to follow their reasoning... apply the 4 tests outlined that determine if it is really part of the road and consider the purpose and function, etc

It may not apply to ALL cases and I make no claim that it does - but I know it applies to cases around here!! I am sure it will apply to hundreds, maybe thousands of the 20,000 Section 29 cases they prosecute every year... where people settle out of court by admitting an offence they have not committed.

My case tested this - it applied. DVLA lost the case.

TofuMan · April 27, 2015

As far as Sch. 2A, V.E.R.A. is concerned, if the parking spaces were predominantly used by residents and could be used by anyone and there were no restrictions limiting it to residents only, sch.2A would not apply, as for that exemption, the place must be normally enjoyed only by the occupiers of those dwellings.

That is not correct. Although the DVLA might prefer such a narrow interpretation.

My case specifially addressd that claim. I won that point and the court explicitly raised in in their judgement. I had already effectively won as Clark vs Kato applied - but they said IN ADDITION the area was effectively a council car park and that it was ALSO created for the resident to use, so Schedule 2A applied.

They found the two arguments were not mutually exclusive - It could be BOTH open to public use and 'normally' only used by the residents.

The correct interpretation therefore is not:

"normally enjoyed only by the occupiers of those dwellings"

But

" normally enjoyed only by the occupiers of those dwellings"

As I argued in Court, I and the other residents have friends that visit and occasionally tradesmen that park vehicles there when they do work at the properties. Parliament did not intend to create a clause that if breached by a plumber one day parking his van there would suddenly forfeit the rights of all the residents.

The local Council had produced a letter they hoped would convict me, which said that the parking was 'predominantly' used by residents. This was sufficient for Schedule 2A to apply.

The DVLA's own internal documents (See the PDFs I uploaded earlier in this thread) tell clampers they cannot clamp a car on land associated with dwellings EVEN IF THE CAR BELONGS TO SOMEONE WHO DOESN'T LIVE THERE. People should download the PDF's if they are likely to go to court and see how the DVLA's own policy documents differ from what they tell you over the phone.

TofuMan · April 27, 2015

In your case, the DVLA considered it was, you convinced the court it wasn't. But it doesn't set a precedent. Any case will be decided on the particular circumstances.

That is correct. Magistrates' Court cannot set a legal precedent. However Magistrates can be shown the outcomes of similar case at another Magistrates' Court and must consider them, but those outcomes are not binding.

The Lords did bring up the sticky question of whether parking 'on the road' could be seen as separate to the road or not and they commented it presented an issue in regard to the ability to charge for parking if it was the road... as you can park there with Road Tax... I spent no time looking at that as it was not relevant and I don't think they made a clear statment on that - it was more of an observation they made in passing.

However - I think they were being quite clear this was not limited to car parks - this involved how one distinguishes road from car parking areas.... EVEN when those may be commonly thought of as 'on the road' . I am surprised this ruling is not employed more often!

PLEASE NOTE:

I have not been 'naive' in my interpretations - I spent 9 months preparing for court! People reading this must remember that you cannot allow 'confirmation bias' to creep in - do not cherry pick the bits that sound good to you and ignore the bits that sound negative towards you... when you read the law try to be objective and ask if it really applies to your situation or not, with a clear mind as if you were dealing with someone else's problem rather than your own.

I spent 9 months asking 'how have I broken the law?' and I was given many incorrect reasons, because when I went and read the law I saw that it did not support the claim the DVLA made... when I got hold of the DVLA's internal documents I found they supported MY ARGUMENT rather than their own... so I was being lied to.

I have been an advocate in successful Employments Tribunals, I dragged the Home Office through the Ombudsman and won, I have fought lengthy Trade Mark cases and won... I only fight when I am CERTAIN the law is on my side!

I am publishing my information to assist others - but anyone reading this with a DVLA issue must appreciate that a 'similar' case may not get a 'similar' outcome.

However, the documents I am uploading are useful because I am trying to show people the level of evidence and the quality of reasoning you need to apply to crush the DVLA's arguments. But remember - Your own cases will rest on the facts that can be proven in your own circumstances.

The DVLA documents I have uploaded may put many aspects of people's cases beyond discussion - No matter what the DVLA tell you in letter and over the phone... READ THEIR PDFs in this thread... a Judge will pay a lot more attention to something they said in the past, especially where they are interpreting the law and creating policy, to anything they improvise to get you off the phone!

TofuMan · April 27, 2015

A complication in the future could be that your defence was based on the case of Clark v Kato, which only considered the application of the term 'road' in respect of a car park. It has the Road Traffic Act definition, which includes the words 'any highway and any other road', but stated the term 'highway' did not apply in that case.

Correct - Clark vs Kato is not a guaranteed 'get out of jail' ticket for everyone... I am ONLY commenting on MY OWN case so others can understand how and why I was successful in defending against the prosecution. I am not very interested in playing out hypothetical untested interpretations. I do not think these are very helpful to people visiting these forums. I have spent 9 months reading the forums before joining and posting so I have seen and read a lot of guff. Facts and experience would be valuable over opinion really.

I am only trying to show what happened in my case in the REAL WORLD. (sorry thats not 'shouting' but 'maximum emphasis')

I know my case is not a 'precedent', (you do not need to repeat that to me again!) However, it is a legal test in Court... the DVLA failure to successfully prosecute me was based on the facts and the law, not a whim of the Court. The court spent almost 2 hours going over the points of law. So the case I put forward should be of value to people in very similar circumstances.

For Clark vs Kato to apply people will need to have a case where the DVLA have clamped their car or are threatened for prosecution for being on land that normally they would be able to park in... so readers, PLEASE read the DVLA PDFs where you can see you may leave a SORNed car in a public car park, housing association car park, council car park, private car park, retail car park.... The DVLA's own guidance to staff and contractors addresses all the different places.... If the place is not 'Public Road' they may not take action against you. A place with series of parking bays such as mine was, is a Parking Area that is not on the carriageway and it has been dedicated to parking only by painting bays out over the whole of the area... so it is not a lay-by either (there is precedent that 'lay-by' may be considered Highway')... the DVLA may not clamp there.

'Highway' includes footways, verges etc., and if repairable at public expense, may be considered to be a 'Public Road'. It would be a matter for the individual cases if it was considered that parking places were part of the highway.

Unfortunately, due the vagueness of this it is not helpful commentary. Yes - it 'may' be... and 'considered' by whom? The DVLA or a Judge in a Court? In my opinion NOT the DVLA - they may exercise pseudo-police powers by they cannot judge and convict anyone!

Of course in the individual cases brought to Court the facts will need to be looked at and if those facts determine your vehicle was in an area normally used as a car park - whether public or private, it was not on a Public Road. Furthermore if that car parking area was ALSO associated with dwellings the DVLA should not have clamped you either.

In my case:

- I was NOT on Public Road

- The parking area was ALSO associated with the dwellings.

That was proven with evidence rather than frothy interpretations of the law I merely demonstrated that the evidence fit the law and so the relevant law and precedent applied. The DVLA twist words to mean things they do not and I would urge readers to use English as it is normally spoken and not play the DVLA game of 'Magic Words'.

The Clark vs Kato ruling also said that where the term 'road' is used alone it should retain its normal meaning and not be extended to include 'any other public place'. If you are talking about a place that is used for parking only and is marked out as such... it is a car park. A car park cannot be a road.

I think to really address this in full context of my own case I may have to upload my skeleton argument - it is methodical and goes through each possible obstacle step by step.

The wording of sch.2A, (1A) (b), Vehicles Excise & Registration Act 1994:

'Any place which is within the curtilage of, or in the vicinity of, a building consisting entirely (apart from common parts) of two or more dwellings and which is normally enjoyed only by the occupiers of one or more of those dwellings'

Correct quote - but we are disagreeing on the emphasis. As I explained the operative word in my opinion (and in my case) was 'NORMALLY'...

Of course on occasions other people may park there - but the residents cannot forfeit rights because of that. And as I keep repeating, people should read the DVLA's own internal guidance in the PDF's I have uploaded. Looking at the law alone is fine, but the interpretation for the DVLA policy is in print... in those PDFs.

It will not impress the Court if they try and present an argument that directly contradicts their own internal policy documents :-)

Edited April 27, 2015 by TofuMan
Spelling, Clarity of explanation, making it 'friendlier'!

TofuMan · April 27, 2015

You did well to concentrate on Clarke v Kato, as it only involved the interpretation of the 'road' part of the definition of a road within the meaning of the Road Traffic Act, and did not discuss the 'highway' part.

Yes it was important to focus on that precedent because it dealt very specifically with the question at hand; Is something that LOOKS like a car park, is USED as a car park and was described by the council 30 years ago as somewhere the residents should PARK THEIR CARS, actually a car park... if so then it cannot be a road.

But Clarke vs Kato also describe the 4 tests... does it lead from one place to another, have defined edges, etc...

You have to remember I was being prosecuted under VERA. VERA only has 'Road' and 'Public Road'. It doesn't use 'Highway' once in the whole act and in 20 years has not been amended to elaborate further. The DVLA turn to Section 192 of RTA 1998 to try and widen the scope... but this created 2 obstacles for them:

1. Clarke vs Kato, which was dealing with a case under RTA, states that when 'road' appears alone it cannot mean more than its normal meaning. (so the detailed possible extensions of 'Highway' in other Acts may not automatically be applied to the interpretation of VERA where we are seeking to clarify only what a 'Road' is.):

"I turn next to consider the statutory definition of the word "road" in section 192 of the Act of 1988. In applying the definition the first question to be asked is whether the place in issue is a highway. We are not concerned here with that possibility and it is sufficient to observe that it includes such things as public footpaths and public bridleways. Failing an affirmative answer one then has to proceed to the words which follow; Does the place qualify as being "any other road to which the public has access?" This provision has to be analysed into two parts; first, is it a road?"

Well it clearly wasn't a road by any normal understanding of the term... the question about Highway being somehow all inclusive is irrelevant here, unless it is actually a road there is a problem going further... we can't simply see if we can squeeze it into the meaning of 'road' we have to also consider what else it may be... could it be a car park instead?? The DVLA error was to start out assuming you can call things 'Road' and they magically become road... The Lords commentary adresses this:

"While there was some discussion in argument before us whether the North Committee had correctly stated the law on the meaning of the word "road" the express addition of the words seems to me to be a clear indication that a conscious extension of the scope of the provisions in question was being made, reinforcing the conclusion that where the word "road" stands alone it bears its ordinary meaning and is not to be extended to public places such as car parks."

2. If we want to go shopping through other legislation for definitions, such as RTA 1998 or others we cannot do so without accepting the other implication - which is Roads and Parking are clearly considered separate things through a number of relevant Acts:

"The distinction between a road and a car park which is reflected in the ordinary use of words is reinforced by a consideration of the language of the legislation. Section 25 of the 1988 Act which prescribes the offence of tampering with a vehicle starts with the words "If, while a motor vehicle is on a road or on a parking place . . . ." This plain recognition of a distinction between the two things cannot, as was suggested in argument, be put aside as simply a fortuitous anomaly in a consolidation statute, particularly when one finds the same distinction in the earlier appearance of the provision in section 29(2) of the Road Traffic Act 1930. Indeed the recognition of parking places for vehicles as a distinct matter can be found in section 68 of the Public Health Act 1925 where a specific definition of the term is given. A corresponding distinction can be seen in the language of the Road Traffic Regulation Act 1984 between roads and parking places. While there is a difference in the precise terms of the statutory definition in that Act from those in the Act of 1988, there appears to be no difference intended as regards what is meant by the words "any other road to which the public has access." The distinction recognised by Parliament between a road and a parking place can be found in the provisions forming Part IV of the Act of 1984 and the definition of "street parking place" and "off-street parking place" in section 142. In particular section 57(1)(b) empowers the provision and maintenance of "suitable parking places, otherwise than on roads, for vehicles . . . ." While a parking place could be on a road, it is nevertheless not itself a road. All the less is there reason to regard a car park as a road."

Clarke vs Kato comments on this issue mean Courts must therefore view Roads and Car Parks as two separate things from the outset. the question then remains simply was the car in one or the other?

Parking bays, such as where you were parked, may not be considered to be part of the 'road' but may be considered to be part of the 'highway', and so would be a part of a Public Road as far as the Vehicles Excise & Registration Act is concerned.

Not necessarily - as I said it cannot be assumed that the full width of interpretation possible in RTA can be applied to VERA. The reason is that a definition in an Act of Parliament is there to serve that Act alone... it is there to support the interpretation of that Act rather than another Act... hence:

"The word "road" is plainly intended to cover all kinds of roads. It embraces not only highways but "any other" roads. So a considerable breadth of meaning is available, provided that the place still qualifies as a "road." But it is argued that a greater breadth should be allowed by way of a purposive construction. If that approach is to be adopted the first step must be to identify the purpose of the legislation."

What is the purpose of the Vehicle Excise and Registration Act? Attempting to stretch any definition offered in VERA or available elsewhere must be driven by a NEED that stems from the purpose of VERA rather than the convenience of obtaining an easy conviction for the DVLA prosecutor. So, the words in definitions are there to support that purpose and any stretching of their interpretation must be in pursuit of that purpose not simply to achieve a win in Court. The DVLA mistake was thinking that using 'Magic Words' could transform a 'car park' into a 'lay-by'.

" It may be perfectly proper to adopt even a strained construction to enable the object and purpose of legislation to be fulfilled. But it cannot be taken to the length of applying unnatural meanings to familiar words or of so stretching the language that its former shape is transformed into something which is not only significantly different but has a name of its own. This must particularly be so where the language has no evident ambiguity or uncertainty about it."

A definition of 'road' cannot be stretched so far that it is used to describe something that has it's own name - like a car park. Especially where legislation already defines that as a separate thing! Such legalistic and cynical attempts to pervert the meaning of readily understandable and unambiguous words failed to impress the Court.

---------------

All quotes from judgement in:

Clark vs Kato

[1998] WLR 1647, [1998] 4 All ER 417, [1998] UKHL 36

http://www.bailii.org/uk/cases/UKHL/1998/36.html

Edited April 27, 2015 by TofuMan
to add reference to legal case

TofuMan · April 27, 2015

Extract of my 'Skeleton Argument' relating to 'Public Road vs 'Highway' used in Southampton Magistrates Court: Case 1400515280 D A Eadie v DVLA

------------------------

1. I have committed no offence under Section 29 of the Vehicle Excise and Registration Act 1994, nor any other part of that Act because for the period in question the vehicle was subject to a Statutory Off Road Notification and was not used or kept on ‘public road’.

2. Consequently the DVLA’s action of clamping and impounding my car was unlawful and their prosecution of me is also unlawful.

The Issue in this Case

3. The key issue in this case is whether the parking area where my car was located can be legally considered as ‘road’ in order to fulfil the required definition of ‘public road’ under VERA for an offence to have occurred.

~ ~ ~ ~

5. In my defence I rely principally on the 1998 decision of the House of Lords in ‘Clark and Others v Kato, Smith and General Accident Fire & Life Assurance Corporation Plc’ [1998] WLR 1647, [1998] 4

All ER 417, [1998] UKHL 36, where it was held that a car park was not a road.[1]

6. I have provided of copy of the entire decision for the Court to refer to (the Lords reasoning and commentary is valuable in this case) however I shall highlight where the Lords approach and commentary is relevant to my case.

7. This judicial precedence creates an onus on the prosecutor to prove beyond all reasonable doubt that the parking space where my car was located is in fact not a car park but a road. With the assistance of dictionary definitions and images I shall detail how the land in question is undoubtedly a ‘car park’, as I have always claimed, by following the principles used by the Lords themselves.

~ ~ ~ ~

Points of Law

27. I am going to follow the same approach used by the House of Lords in their decision. They considered the language of the legislation and language as it is normally understood and carefully evaluated the characteristics of the places involved.

28. As the Lords explained in their decision, is not for any Court and certainly not the DVLA to create new effects for laws through the distortion of language or unreasonable interpretations of legislation.

29. If the law fails to provide the DVLA with an unambiguous basis to prosecute me, the DVLA should not ask this court to accept a distorted use of language but instead ask Parliament to amend the legislation.

~ ~ ~ ~

Interpretation of VERA

54. In the first instance VERA should be approached literally. No assumption should be made that words are used erroneously or that words have meanings other than their ordinary meaning.

However, if having done that we are unable to find a conclusive outcome, or that the outcome would be absurd, we should consider a broader interpretation based on the purpose of the legislation.

55. It is clear that a ‘Public Road’ has to be a ‘road’ for Section 29 of VERA to apply. We therefore need to be able to determine what constitutes a road. The need to look for a definition from other legislation must be driven by a need arising from VERA itself as I am not being prosecuted for alleged offences under any other Act.

56. Firstly, I am not convinced we necessarily need to look outside of VERA for a further definition, as VERA contains clear exemptions relating to land associated with a dwelling. I have provided contemporaneous evidence that the parking area was provided over 30 years ago for the purpose of residential parking. [31]

57. Additionally we can look at how the DVLA themselves have interpreted VERA in their own internal documents.

~ ~ ~ ~

89. I hope to convince the Court that the DVLA have therefore sought to rely on an Act where the highest court in the land has determined it cannot apply.

90. I call the Court’s attention to the fact that within VERA:

The term ‘road’ appears over 200 times
The term ‘public road’ appears 29 times
The term ‘on a road’ appears 17 times
The term ‘on the road’ appears 4 times
The term ‘highway’ does not appear once in VERA 1994.

Page 16 of 24

91. VERA has been around for 20 years and has been amended many times. Had legislators meant ‘public road’ to mean ‘Highway’ I consider they would have now amended it to say so.

92. In contrast, we can compare an example of the wording of the Road Traffic Offenders Act 1988, where Section 4(6) states:

“In this section “parking place” means a place where vehicles, or vehicles of any class, may wait and “designated parking place” has the same meaning as in the Road Traffic Regulation Act 1984.”

93. This makes it clear that when legislators intend for a definition of a term used to have the same meaning and interpretation as one given in another earlier Act of Parliament, they can make explicit reference to it.

94. I argue that the total absence of the term ‘highway’ from VERA, which it should be remembered was created eight years after the 1988 Act and makes no reference to that Act or use of its definitions, indicates that it was not the will of parliament for ‘road’ to mean anything more than its usual common meaning.

95. I do not believe that VERA was intended to apply beyond the normal understanding of the word ‘road’, specifically limiting it further to only those roads that are ‘maintained at public expense’ because it should obviously only apply to roads that are paid for by the tax collected.

What the Road Traffic Act 1988 says:

96. From the outset of my dispute with the DVLA, from July 2014, they have claimed that they could overcome the apparently narrow definition in VERA by relying on Section 192 of the Road Traffic Act, where the definition for road is given as:

192 General interpretation of Act.

“Road”

a) in relation to England and Wales, means any highway and any other road to which the public has access, and includes bridges over which a road passes

97. The DVLA and their contractors repeated the bold, yet obviously erroneous assertion to me, that anywhere that was open to the public could be a ‘road’ and therefore even parking spaces could be a road if they were open to the public. That is nonsense and has no basis in law.

98. As I have stated and as the Lords also observed, the definitions provided in the Road Traffic Act are intended for that Act alone. Its definitions, which are required to cover a variety of offences which require a broader definition of ‘road’, such as drink driving, parking on grass verges and central reservations are intended to serve the purposes of the Act. The stretching of the definition to include places ‘to which the public has access’ is intended under that Act to deal with dangerous

39 Exhibit DE38 Road Traffic Offenders Act 1988 Section 4(6)

Page 17 of 24

driving where the definition of ‘road’ or ‘highway’ might not readily apply.

99. I also point out that surprisingly, the 1988 Act is so well drafted and precise that it encompasses offences as obscure as:

- holding onto a moving bus while it pulls you on rollerskates

- flying a hovercraft on common land, unless saving a life

- giving a false name after being stopped for inconsiderate cycling

- allowing your dog on the road without a lead, unless you are driving sheep to market

100. All of those possible offences can be clearly and unambiguously identified in the provisions of the Act.

101. However the DVLA prefer to rely on the definition in the 1988 Act not because it is more precise but because the term ‘highway’ is less precise and therefore open to broader interpretations or even manipulation. It is because offences under the 1988 Act can include places that are not normally considered part of the road in the everyday sense of the word, that the DVLA wish to employ it in prosecuting me.

102. I think there is something rather sinister about a Government Agency that is empowered to prosecute me for the alleged offence under VERA trying to make use of a vaguer term from other legislation to obtain a conviction that would otherwise not be possible. That cannot have been the intention of Parliament and in my view the DVLA are attempting to gain and exercise powers they have not formally been granted by law.

103. Nonetheless, in ‘Clarke vs Kato’, Lord Clyde also accepted that the Road Traffic Act was an acceptable source for a definition of ‘road’, primarily because of the nature of the cases they were reviewing were based on that 1988 Act.

104. He admitted that the definition was broad for the specific purpose of prosecuting the wide range of offences under that Act. It does not follow that the definition given in Section 192 of that act can be assumed to safely apply with respect to the purpose of any other Act.

105. The second problem with the DVLA seeking a definition in RTA 1988 is that, as pointed out in ‘Clarke vs Kato’ that the RTA 1988 makes explicit use of the term ‘parking place’ as being distinctly separate to a ‘road’ in Section 25 where it reads:

25 Tampering with motor vehicles.

If, while a motor vehicle is on a road or on a parking place provided by a local authority, a

person—

(a) gets on to the vehicle, or

(b) tampers with the brake or other part of its mechanism, without lawful authority or reasonable cause he is guilty of an offence.

(Incidentally I consider that this is a criminal offence that the DVLA have committed against me.)

--------------------------

I think it may help people more if perhaps I posted the full Skeleton Argument and Exhibits as they will make more sense... the case in my defence was slowly built up on a series of indisputable facts to get to the point where there is no room for the DVLA to wiggle...

If anyone reading this thread would like to see it - just shout out!! :-)

Edited April 27, 2015 by TofuMan
Better explanatory text, formatting

TofuMan · April 27, 2015

errror

How does it go..?? 'To err is human but...' to really mess up you have to employ mindless dogmatic cowards. Something like that :-)

TofuMan · April 27, 2015

...one case on appeal involving keeping an unlicensed vehicle on a grass verge, just shows that you can have the opposite result - that the extent of a Public Road within the meaning of the Vehicles Excise & Registration Act 1994 is 'fence to fence'. Which may be where the term 'including footways, verges etc' comes from.

Yes I think I may have come across that too in the research I did. The general view on this seems to be its boundary to boundary as you say - derived from Section 192 of RTA rather than VERA's own definition.

However, things can theoretically exist between the two edges that may not form part of the road that are NOT highway :-)

In the case of the JCB (or whatever it was) that was parked up over the crash barrier they assumed that land beyond it was not road because no one drove along it and the crash barrier formed the extent of the road... However, while I think it was rather extreme to take that to court - they did - and the critical fact seems to be that the land while couldn't be used as road, the crash barriers were only a safety feature and not a boundary. Also the land was not dedicated to any other specific purpose, such as parking - unlike my situation - so was considered verge and therefore part of the road.

Similarly, people have been prosecuted for parking 'the other side' of yellow lines... which is a misunderstanding of what they represent as the effect of the yellow lines, while they may be painted on the carriageway, actually extends to the edge of the highway - usually the nearest boundary.

Anyways - in my case, the area in question is surrounded by places that do form part of the 'highway' - it has the carriageway of the 'road' itself, lined with grass verges, pavements and green open spaces. All of those are maintained at public expense... although not all from vehicle duty I am sure. As 'adopted highway' - the highways agency are apparently responsible for maintaining it, but they seem to subcontract the local council for cutting the grass and road sweeping etc... it all seems a bit confusing in determining who does what and therefore who 'owns' what.

The day I saw my car was clamped I went to Police to ask if it was lawful. After explaining it's location they actually said probably not!! The duty officer showed me a website provided by West Yorkshire Police that Hampshire Police can use - when he searched for 'definition of a road' he found a page which detailed how Clark vs Kato applied which he said was definitive for policing purposes in deciding if an offence happened on the road or not. He kindly printed that out and I went home to read the case carefully.

So, having swotted up and laid out my case - when the DVLA responded to my first complaint they included what I refer to as the Pink Map - where adopted highway is shown in pink.

The guys that make the maps of adopted highway had clearly coloured everything that was not private property in pink, obviously assuming it was all maintained by Hampshire Highways. In doing so they coloured in areas that were clearly not roads... although they may be maintained by them, such as the parking court at the rear of my property. Had I parked there I am sure they would have clamped too - but it is definitely not possible to call it a road or highway. The reason folks do not park there is the total lack of lighting which has led to vandalism in the past.

Now that parking court area was an interesting anomaly - it showed that for the purposes of maintenance and perhaps some other liabilities (trimming vegetation) Hampshire Highways were considered responsible... but at the same time it could not possibly be viewed as highway - it fails EVERY test you could imagine applying. Could it in fact be BOTH maintained at 'public expense' and NOT a 'road'? This made me dig a lot deeper in my own research and to find that Clark vs Kato was going to be critical in my case.

Now I had always assumed on my basic knowledge of such things, the parking area I was in should be ok - but I didn't know exactly why. I knew from my days as a teacher when I had a bump in the college minibus that there was a big fuss about insurance issues because it was 'not a road' as far as the insurance policy was concerned... interestingly was shortly after the Lords' ruling, but I knew nothing of that back then.

Now I know that regardless of who owns the land or how it is maintained, the parking court and the area of land that I had parked on is not road for the purposes of RTA and to the extent that VERA derives definitions from RTA it is not a road under VERA either.

This parking area is maintained by public funds... but then, so are all council car parks. That is not enough to turn it into a road.

The council I think is hoping to keep the notion going that these are 'lay-bys' afloat for their own convenience - but they will be easy to challenge. They like the fact that calling them lay-bys means they can prosecute against cars that being advertised for sale on the roadside. Its a legitimate aim but they shouldn't pervert the law in pursuit of it...

Take for example that they install disabled parking bays in these 'lay-bys'... I have photos of SINGLE car bays that are totally dedicated to a disabled bay. To get a disabled parking bay you have to apply to the council and they will put one as close as they can to your house. And this makes it associated with a dwelling - especially where it is a single disabled bay on its own as no one else is likely to use it.

Now if you can keep a car in a disabled parking bay, day in and day out with no problems... what happens if you put a piece of paper in the window with some numbers on?? I'll tell you what happens - Magic Words come into effect and now the same car in the same place it always sits is suddenly now 'obstructing the highway'.

If that seems odd - I would argue its not the real world that is at fault - its the application of legislation that is probably wrong. :-)

TofuMan · April 28, 2015

Where you were parked may be considered to be a road within the meaning of the RTA definition of a Road - 'any highway and any other road to which the public has access' - eg. part of a highway, not just the 'road' part (which is what Clark v Kato was about).

DVLA/NSL may have thought this was how to look at it... but a Court decided it wasn't.

DVLA decided not to appeal against losing my case... if they are so sure of the law, why not fight on?

I understand your point though - the term 'highway' is considered by many people to be a 'catch all', especially when people see the 'any public place' part (which shouldn't apply in Section 29 VERA cases).

Unfortunately, after 9 months of reading forums and reading legislation it seems many people can't tell the difference between different terms and the limits to where they apply... certainly the DVLA and NSL cannot. (They have the additional problem of not understanding the Finance Act 2008 properly, presuming it gives them God like powers)

Where I parked was 'considered' by a Court, with full regard to both the definitions in VERA and RTA, who determined without any caveats that it was not part of the road. They even held up a photo of the car in the parking space and said to the DVLA prosecutor "This is NOT a road". The seemed pretty sure about it :-)

The reason: because it cannot be a road. It is a parking area ('Car Park')- and therefore cannot be regarded as part of the road because judicial precedence (Clark vs Kato) has laid down that parking areas cannot be considered 'road'.

But irrespective of the RTA definition, it could still be a part of a Public Road within the meaning of VERA, which is from fence to fence.

VERA does not make any such definition - which is part of the problem - it merely says 'Public Road' and in the first instance it must be a 'road' (it makes no use of 'highway').

Then the extent to which places may be considered part of the road by a Court will probably be drawn from Section 192 definition in RTA. In many cases the fact there is 'road' is indisputable and the RTA definition will allow the definition to include the pavements and verges, which will in most cases encompass everything from 'fence to fence'. But not in every case.

This issue arises that occasionally, some pieces of land may exist between the furthest boundaries of the highway that are not road. I can think of many examples, such as in London the small private gardens which are not highway and sit between the far edges of the highway where it reaches the boundaries of private property. These are usually fenced and cannot be driven through and therefore cannot be part of the highway, even if they are council owned... Also access to underground toilets, which I have seen in London and Manchester, which are situated in the middle of a road. these cannot be driven over and therefore cannot be a road. Phone boxes on the pavement and grass verges... are they part of the highway too? Obviously not - these small patches of ground have been dedicated to a purpose OTHER than a road/highway, stop functioning as a place that can be used as highway and therefore cease to be any kind of 'road'.

In my case the land in question was put to another purpose over 30 years ago... it was turned from pavement and verge into a parking area. It is a council owned car park, created for the residents of my road (as the council wrote in letters I presented the court from 1980s).

So where Section 29 offences in VERA are concerned the land in question will ALWAYS have to be a 'road' to apply - and in the majority of cases it may be so, by extending the definition with Section 192 RTA. However... I am certain there are cases like mine, where the assumption has been made that a piece of land that is between the furthest edges of the 'highway' is presumed to therefore qualify as road, but is not road.

I was certain about this - but the DVLA were incapable of understanding the concept that right in the middle of a 'highway' there are pieces of land that cannot form part of a road - because of their purpose and characteristics do not allow them to be used as road.

Ultimately, whether it is a 'road' or not must always be determined by examining the facts in Court, applying the 4 tests laid out in Clarke vs Kato. This piece of land failed those tests. Furthermore by relying on the RTA for a broader interpretation of 'Road' the DVLA then became exposed to the fact that RTA itself speaks of 'parking places' as separate to 'roads', even going so far to describe a 'parking place provided by a local authority' (like the one my car was in!).

25 Tampering with motor vehicles.

If, while a motor vehicle is on a road or on a parking place provided by a local authority, a person—

(a) gets on to the vehicle, or

(b) tampers with the brake or other part of its mechanism,

without lawful authority or reasonable cause he is guilty of an offence.

Ref: http://www.legislation.gov.uk/ukpga/1988/52/section/25

If I was in a 'local authority parking place' - or any other type of car park - Clark vs Kato applies. The DVLA 's reliance on Section 192 of RTA ensured that Clark vs Kato became the decisive issue in the case - and that is a judgement from the highest court in the land (at the time) which is binding on all lower courts.

All I had to do was persuade the court the car park I was parked in - was a car park!

I am still amazed the DVLA thought they had any chance of winning.

I should maybe upload some of the exhibits I presented the court which would show what an easy argument it is to show a parking area is a car park and not a road ...or a lay-by!

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