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#Post#: 50758--------------------------------------------------
Can a private company initiate a criminal prosecution under the
SJP?
DIR By: b789
Date: December 22, 2024, 10:45 am
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Seeking learned opinion regarding unregulated private parking
companies (UPPCs) threatening criminal prosecution under railway
bylaws. There are at least two UPPCs, APCOA and SABA, who
regularly issue what they purport to be Penalty Notices (PNs)
issued under railway bylaws for parking infringements at railway
stations where they are contracted to manage the parking.
Having recently been dealing with an actual PN issued by the
Train Operating Company (TOC) where they have charged the
defendant with a breach of railway bylaw 14.2 which states:
--- Quote ---
> 14.2 No person in charge of any motor vehicle, bicycle or
other conveyance shall leave or place it on any part of the
railway:
>
> [indent](i) in any manner or place where it may cause an
> (ii) obstruction or hindrance to the Operator or any person
using the railway; or
> (iii) otherwise than in accordance with any instructions
issued by or on behalf of the
> Operator or an authorised person.[/indent]
--- End Quote ---
The TOC prosecutor has issued a charge under the SJP and the
defendant has to now decide whether to plead guilty or not. The
case is being discussed here:
Byelaws offence - Taken to magistrates for private parking
ticket
HTML https://www.ftla.uk/speeding-and-other-criminal-offences/sjp-for-private-parking-ticket/
My question relates to the supposed PNs issued by UPPCs. As far
as I can make out, the PN issued is not real. There is no
mention in them of which authority they are acting under (no
UPPC is an "authority" in any way, shape or form) except to say
that the recipient has breached the railway bylaws and is liable
to criminal prosecution in the magistrates court if they don't
pay £100 into the UPPCs coffers.
In my opinion, the PN is fake and a fraudulent attempt to extort
money from the recipient by way of coercion through unlawful
terms in what can only be described as an "offered contract". In
other words, they are asking for a bribe in order not to
criminally prosecute them. I will attach a redacted example of a
UPPC issued PN below.
Both APCOA and SABA are BPA members and offer a secondary
"independent" appeals service through POPLA should the initial
appeal to the operator be rejected. However, I do not believe
that POPLA have the authority to adjudicate on PNs which are (if
they were real ones) criminal matters. As these fake PNs are
nothing more than "offered contracts" (under civil law), there
is no obligation on anyone to accept an offered contract under
any circumstances.
I am fairly certain that neither APCOA nor SABA have ever
initiated a private prosecution in the magistrates court. Also,
I have never seen one of these fake PNs sued over in the county
court as a civil matter, because they can't. They are relying on
the recipient to pay up out of ignorance and fear of criminal
prosecution (when there is no chance of it).
So, does anyone have an opinion on how these UPPCs could
initiate a criminal prosecution in the magistrates court,
assuming they were to try and back up their unlawful threats in
the "offered contract" disguised as a PN?
Here is an example of what I believe to be a fake (fraudulent)
PN issued by APCOA:
[img
width=450]
HTML https://www.ftla.uk/index.php?action=dlattach;topic=4211.0;attach=9420;image[/img]
[img
width=450]
HTML https://www.ftla.uk/index.php?action=dlattach;topic=4211.0;attach=9418;image[/img]
#Post#: 50767--------------------------------------------------
Re: Can a private company initiate a criminal prosecution under
the SJP?
DIR By: NewJudge
Date: December 22, 2024, 1:37 pm
---------------------------------------------------------
The answer to your question is that some private companies can
initiate prosecutions under the SJP
--- Quote ---
> I am fairly certain that neither APCOA nor SABA have ever
initiated a private prosecution in the magistrates court.
--- End Quote ---
I’m quite certain you are right. This is because those two
bodies are not “authorised prosecutors” under the legislation
covering the Single Justice Procedure. Railway Companies are. I
checked that they were when the original question was raised
because I was interested to see how the recent ruling by the
Chief Magistrate (which nullified about 75,000 railway fare
evasion prosecutions taken under the SJP) came about. I wondered
whether these charges were also ineligible to use the SJP, but
they are not and the prosecutions seem lawful.
I can understand you conflating the civil procedure and criminal
prosecutions. The railway companies are in (so far as I can
fathom) a unique position in that they seemingly operate what
looks like a private parking enforcement regime. But if the
charges from that remain unpaid, they have recourse to criminal
prosecutions courtesy of their bylaws.
As far as I can see, there is no requirement for the railway
companies to operate a fixed penalty scheme or to operate
out-of-court settlements (in the same way as there is no
requirement for the police to offer courses or fixed penalties).
They could simply prosecute all those who break their bylaws.
But they don't.
Instead their strategy seems essentially to be along the lines
of “give us a hundred quid and we won’t prosecute you”. They
seem to employ parking companies to do that, but when the
motorist does not stump up, the TOCs take over and, as
authorised prosecutors, initiate a prosecution.
As a result, I don’t see how the validity of any notices under
the “give us a hundred quid…” stage can effect or jeopardise a
criminal prosecution. It’s similar to a speeding offence when
the police offer a course or fixed penalty and neither are taken
up. The police start a prosecution and all that went before in
relation to the course or fixed penalty becomes irrelevant.
#Post#: 50774--------------------------------------------------
Re: Can a private company initiate a criminal prosecution under
the SJP?
DIR By: DWMB2
Date: December 22, 2024, 2:03 pm
---------------------------------------------------------
--- Quote ---
> but when the motorist does not stump up, the TOCs take over
and, as authorised prosecutors, initiate a prosecution.
--- End Quote ---
I'm not sure that they actually do, often if at all.
The TOCs who do prosecute (like Merseyrail, as seen in the live
example in the Criminal forum) seem to manage the process
themselves from the outset, rather than farming it out to APCOA
or SABA.
#Post#: 50784--------------------------------------------------
Re: Can a private company initiate a criminal prosecution under
the SJP?
DIR By: NewJudge
Date: December 22, 2024, 3:36 pm
---------------------------------------------------------
But the principle is the same, whoever operates the first ("give
us £100...") part.
If the TOCs undertake both parts they are no different to the
police who might firstly offer a course or fixed penalty and
then prosecute when they are not taken up.
--- Quote ---
> In other words, they are asking for a bribe in order not to
criminally prosecute them.
--- End Quote ---
That's certainly one way of putting it.
I know virtually nothing about decriminalised processes and
procedures so cannot comment on the deficiencies you mention.
But the important thing with these railway offences is that they
are not decriminalised. They are not subject to review or
adjudication. If he motorist does not pay the bribe, the only
way the TOC can get paid is to prosecute him through the
magistrates' court.
So the rules and protocols pertinent to the decriminalised
offences do not apply.
#Post#: 50787--------------------------------------------------
Re: Can a private company initiate a criminal prosecution under
the SJP?
DIR By: DWMB2
Date: December 22, 2024, 3:47 pm
---------------------------------------------------------
--- Quote ---
> But the principle is the same
--- End Quote ---
Agreed - the reason I was making the point is just because the
practice doesn't necessarily reflect the principle with some
TOCs.
#Post#: 50792--------------------------------------------------
Re: Can a private company initiate a criminal prosecution under
the SJP?
DIR By: b789
Date: December 22, 2024, 4:30 pm
---------------------------------------------------------
I understand that should APCOA decide to force prosecution of
the alleged breach of the railway bylaw, they could only do so
if they hand the case to the TOC and it is then up to the
prosecutor for that TOC to initiate the SJP prosecution.
However, that is not what is being threatened in the supposed
"PN" that I have shown
Please correct me where I am wrong and may be misunderstanding
the law but the notice I have shown, refers to itself as a
Penalty Notice, suggesting it is issued under statutory
authority (such as a penalty issued by a local council or a
government body). However, APCOA is a private company. Penalty
Notices under Railway Byelaws must be issued by or on behalf of
the relevant train operating company (TOC) or station operator.
APCOA does not specify that it is acting directly under the
authority of the TOC or any other authority, which raises
concerns about its legal basis.
The notice states that it is issued for a breach of Railway
Byelaws (Byelaw 14) and implies that failure to pay could result
in a criminal prosecution and a fine of up to £1,000. However,
Railway Byelaw 14 has multiple subsections, each covering
different aspects of parking-related offences (e.g., parking
without payment, failing to display a ticket, or parking in a
prohibited area). Without specifying the exact subsection, the
notice fails to adequately inform the recipient of the alleged
wrongdoing. This lack of detail makes it impossible for the
recipient to fully understand the nature of the alleged offence,
formulate a proper defence or appeal or assess whether the
alleged breach genuinely applies.
This failure to provide sufficient detail must render the PN as
unenforceable, because clarity is essential for both criminal
and civil proceedings. Railway Byelaws require the issuing
authority to clearly specify the nature of the breach and its
legal basis. A vague reference to "Byelaw 14" does not meet this
standard.
Only the train operating company or a properly authorised agent
can initiate legal proceedings in the magistrates’ court. The
notice fails to explicitly state that it is issued under the
authority of the train operating company or railway operator
responsible for enforcing the byelaws. Without this, the notice
lacks credibility as an enforceable penalty under the byelaws.
The demand for payment (£100, reduced to £60 if paid within 14
days) blurs the line between a statutory penalty (under Railway
Byelaws) and a private parking charge (a civil claim for breach
of contract). If this is treated as a civil charge, APCOA would
have to pursue the registered keeper (or driver) in a civil
court, where different rules apply. They cannot simultaneously
threaten prosecution under Byelaw 14.
Under the Magistrates’ Courts Act 1980, any prosecution under
the byelaws must be initiated within six months of the alleged
offence. If APCOA does not escalate the matter to the train
operating company within this period, no prosecution can take
place. However, the notice refers to an appeals process with
APCOA and mentions POPLA (Parking on Private Land Appeals),
which is irrelevant to statutory byelaws. Appeals related to
Railway Byelaws must be directed to the relevant railway
operator or magistrates’ court, not a private adjudicator like
POPLA.
The notice is questionable as a "Penalty Notice" under Railway
Byelaws because it does not clearly establish APCOA's authority
to act on behalf of the train operating company. The document
blurs the distinction between a statutory penalty (criminal law)
and a private parking charge (civil law). This misleads
recipients into paying without understanding their rights.
#Post#: 50802--------------------------------------------------
Re: Can a private company initiate a criminal prosecution under
the SJP?
DIR By: nigelbb
Date: December 23, 2024, 1:36 am
---------------------------------------------------------
--- Quote from: NewJudge link ---
>
> But the principle is the same, whoever operates the first
("give us £100...") part.
>
> If the TOCs undertake both parts they are no different to the
police who might firstly offer a course or fixed penalty and
then prosecute when they are not taken up.
>
> [quote]In other words, they are asking for a bribe in order
not to criminally prosecute them.
--- End Quote ---
That's certainly one way of putting it.
I know virtually nothing about decriminalised processes and
procedures so cannot comment on the deficiencies you mention.
But the important thing with these railway offences is that they
are not decriminalised. They are not subject to review or
adjudication. If he motorist does not pay the bribe, the only
way the TOC can get paid is to prosecute him through the
magistrates' court.
So the rules and protocols pertinent to the decriminalised
offences do not apply.
[/quote]
If the motorist is fined in the magistrates court the fine goes
into government coffers. The TOC will receive no money whether
the motorist is found guilty or not guilty.
#Post#: 50803--------------------------------------------------
Re: Can a private company initiate a criminal prosecution under
the SJP?
DIR By: nigelbb
Date: December 23, 2024, 1:39 am
---------------------------------------------------------
--- Quote from: b789 link ---
>
> Both APCOA and SABA are BPA members and offer a secondary
"independent" appeals service through POPLA should the initial
appeal to the operator be rejected. However, I do not believe
that POPLA have the authority to adjudicate on PNs which are (if
they were real ones) criminal matters. As these fake PNs are
nothing more than "offered contracts" (under civil law), there
is no obligation on anyone to accept an offered contract under
any circumstances.
>
--- End Quote ---
POPLA refuse to adjudicate on PCNs issue under Railway Bylaws.
#Post#: 50809--------------------------------------------------
Re: Can a private company initiate a criminal prosecution under
the SJP?
DIR By: DWMB2
Date: December 23, 2024, 4:12 am
---------------------------------------------------------
--- Quote from: nigelbb link ---
>
> POPLA refuse to adjudicate on PCNs issue under Railway Bylaws.
>
--- End Quote ---
POPLA's website
HTML https://www.popla.co.uk/faqs#535CHPaixoD1uJbAFGkV4d
says
otherwise:
[indent]I have received a penalty charge notice for an alleged
breach of parking conditions under bylaws. Can POPLA consider
this?
POPLA does have remit to consider penalty charge notices issued
for alleged breaches of parking conditions under bylaws. You
must appeal to the parking operator first and they will refer
you to POPLA and provide a verification code to you if you're
eligible to apply. Please check the response to your appeal sent
by the operator for more details.[/indent]
#Post#: 50835--------------------------------------------------
Re: Can a private company initiate a criminal prosecution under
the SJP?
DIR By: NewJudge
Date: December 23, 2024, 8:39 am
---------------------------------------------------------
--- Quote ---
> The TOC will receive no money whether the motorist is found
guilty or not guilty.
--- End Quote ---
Yes good point, nigel. But I do note they ask for £175 costs,
which is getting on for double the amount the CPS or police ask
for in straightforward prosecutions. So I imagine the TOC gets a
few quid somehow or other (provided the court sees fit to award
that full amount, of course).
I think this issue is being made unnecessarily complicated and I
don’t really know whose fault it is.
The bottom line is that parking transgressions on railway land
are criminal offences. As such they can be ultimately enforced
only by the criminal (i.e. magistrates’) court. To do that the
TOCs do not need to employ parking companies at all. They can
simply employ staff to check their car parks. When an offence is
suspected, all they need to do is nothing, except prosecute the
suspected offender through the court using the Single Justice
Procedure. The TOCs are authorised to do this and they have six
months from the date of the alleged offence to do so. No other
notice is necessary.
Where it becomes complicated is when the TOCs do engage private
parking companies and they, on behalf of the TOC, suggest they
will accept a payment to avoid criminal proceedings being taken.
In the case on the “live cases” board, the only notice the
motorist received was just that offer – “pay us £60/£30 and
we’ll say no more about it”. That was ignored so criminal
proceedings began. That, in my view, is how it should be. That
said, I do think that the notice could have set out the
consequences of ignoring it, though it may have done so (I don’t
believe we saw all of it). There should be no mention of
recourse to POPLA or any other adjudicator. The only
adjudication that should be available is that provided by the
Magistrates’ Court.
The case posted on this thread is clearly different to that.
ACPOA has taken it upon itself to confuse the legal position. It
suggests that an appeal “must” be made firstly via their own
appeals procedure and, if the recipient is dissatisfied, to
POPLA. If the end result of these processes go against the
motorist and the penalty remains unpaid, ACPOA (say) they will
take action in the Magistrates’ Court by way of a private
prosecution.
What they don’t say is that they not empowered to do this
(certainly not under the SJ procedure) and if a prosecution is
to be launched it can only come from the TOC.
In my view, this procedure (appeals via adjudicators and then a
prosecution) is unfair. If an appeal is to go to adjudicators
then enforcement of payment should remain with that process (I’m
not sure how that enforcement works, presumably via the County
Court). But in any case, I don’t believe the adjudication
process has any place in deciding whether or not a criminal
offence has been proved. I believe that adjudicators make their
decisions on “the balance of probabilities”. They also make
assumptions which would not be valid in a criminal court. One of
particular concern is (according to POPLA) that the Registered
Keeper is assumed to be the owner unless proved otherwise. This
leaves the prosecution enjoying this presumption and places the
burden on the defendant to disprove one of the elements of the
offence which has merely been assumed, not proven. A criminal
court cannot make such an assumption.
All in all, it is quite a mess. The TOCs can tidy it up by
simply instructing their parking agents to issue the offer of a
fixed penalty in lieu of prosecution, accompanied by a simple
warning that if it isn’t accepted then the matter will be
decided in the Magistrates’ Court
EDIT: I also found his, which dates from 2020:
HTML https://www.britishparking-media.co.uk/news/on-the-right-track-bpa-welcomes-changes-to-managing-parking-on-railway-land
It contains recommendations to clarify the position on these
matters. I don't believe any of those recommendations have been
implemented.
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