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#Post#: 50850--------------------------------------------------
Re: Can a private company initiate a criminal prosecution under
the SJP?
DIR By: b789
Date: December 23, 2024, 10:14 am
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Of course the BPA would like railway land to become "relevant
land" for the purposes of PoFA. However, I attach below the
response I received from POPLA when I queried their right to
adjudicate on Penalty Notices issued by APCOA and SABA.
POPLA claim that they queried this with the DfT in 2018 and the
attached a copy of their communication saying (paraphrasing)
"The DfT told us we can so we do!"
HTML https://i.imgur.com/tJEVKYu.jpeg
HTML https://imgur.com/D4BZGI0.jpeg
HTML https://imgur.com/7ZJZzp4.jpeg
HTML https://imgur.com/akBncMM.jpeg
HTML https://imgur.com/GlmZPKf.jpeg
Any highlighting mine. I believe that POPLA have chosen to make
their own interpretation of the recommendation by the DfT
because of the misuse of the word "penalty" in this sentence in
their response:
--- Quote ---
> Further, it is stated in by byelaw 14(4)(i) that the owner of
a vehicle may be liable to pay a penalty if it has been used,
placed or left in contravention of byelaws 14(1) to (3).
--- End Quote ---
In the next sentence, the DfT state:
--- Quote ---
> The ability to render a charge under byelaw 14(4)(i) is
distinct from the general enforcement power in byelaw 24(1),
under which a person can be prosecuted in the Magistrates
Courts.
--- End Quote ---
The DfT use of the term "penalty" in reference to byelaw
14(4)(i) appears to be a misnomer. In context, it seems intended
to refer to a "charge" rather than an actual "penalty" as
defined under the railway byelaws. This interpretation is
supported by their subsequent clarification:
--- Quote ---
> "The ability to render a charge under byelaw 14(4)(i) is
distinct from the general enforcement power in byelaw 24(1),
under which a person can be prosecuted in the Magistrates'
Court."
--- End Quote ---
This statement indicates that while a private parking company,
if contracted, may issue a "charge" (such as a Parking Charge
Notice or PCN) for breaches of railway byelaws, this is entirely
separate from the enforcement of penalties through criminal
proceedings in the Magistrates' Court. Consequently, the use of
the term "penalty" in the context of byelaw 14(4)(i) should not
be conflated with the formal penalties enforceable under byelaw
24(1). This distinction is critical, as it underscores the
limited powers of private parking companies and highlights that
any charges they issue are not equivalent to criminal penalties.
The term "penalty" is being used in two distinctly different
contexts, which creates confusion as it is not clearly
differentiated:
Under Byelaw 14(4)(i):
[indent]Here, the word "penalty" is seemingly being used to
describe a civil charge (e.g., a Parking Charge Notice) that may
be issued by a private parking company. This usage does not
imply a criminal sanction but rather an invoice-like demand for
payment, enforceable only through civil proceedings (e.g., small
claims track of the county court). This form of "penalty" is
essentially a contractual mechanism to deter undesirable
behaviour, such as parking in breach of terms and
conditions.[/indent]
Under Byelaw 24(1):
[indent]In this context, "penalty" refers explicitly to a
criminal offence, enforceable through prosecution in a
Magistrates' Court. This type of penalty carries potential legal
consequences beyond a mere financial charge, such as a criminal
record or fines imposed by the court.[/indent]
The distinction lies in the nature of enforcement and
consequences:
[indent]• A civil charge is a financial liability imposed
privately, for breaching terms and conditions, and does not
carry criminal implications.
• A criminal penalty involves formal legal proceedings,
potential prosecution, and the imposition of sanctions by the
judicial system.[/indent]
#Post#: 50875--------------------------------------------------
Re: Can a private company initiate a criminal prosecution under
the SJP?
DIR By: NewJudge
Date: December 23, 2024, 11:40 am
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All of the above is all fine and dandy - if the motorist agrees
to arbitration. He has no requirement to do so. Whether or not
he should depends upon the circumstances he finds himself in.
If he does and it goes against him (as I believe it might have
in the case of our friend in the "Live Cases" forum) all he has
to do is to refuse to pay. He will then be prosecuted where the
charge will have to be proved to the criminal standard. The
court will not be interested in any deficiencies in any penalty
notices as there is no requirement to provide any. It will not
be able to make assumptions about the owner/registered
keeper/person in charge. The status of the person charged will
have to be proved as required.
All the information you have provided relates to private parking
companies, their responsibilities to issue the correct
documentation to levy penalty charges and the arbitration
services associated with that. None of it has any bearing on
criminal prosecutions and that's where these cases end up if
they remain unsettled.
#Post#: 50880--------------------------------------------------
Re: Can a private company initiate a criminal prosecution under
the SJP?
DIR By: andy_foster
Date: December 23, 2024, 12:18 pm
---------------------------------------------------------
In general, and more apropos the case referred to in the live
cases forum, where there is seemingly a strong meritorious
defence on the facts of the case, and a seemingly stronger
technical defence which would tend to suggest that a provision
is a dead letter, I would very much be minded not to disregard
the meritorious defence in pursuit of the loophole defence.
Courts of all levels have shown a propensity to inflict as much
violence as necessary to the language of a provision to achieve
what they consider to be a just outcome. Whilst they often do
not do this, it is never safe to assume that they won't,
although if the DC or above has already ruled on the matter
[with a rational interpretation] such an assumption is somewhat
safer.
#Post#: 50881--------------------------------------------------
Re: Can a private company initiate a criminal prosecution under
the SJP?
DIR By: b789
Date: December 23, 2024, 12:36 pm
---------------------------------------------------------
The point of my question was how can the unregulated private
parking company (UPPC) "initiate" a private prosecution in the
magistrates court (under the SJP or otherwise) and that has been
answered, thank you. They can't.
If the UPPC wants to enforce the PN, they can only do so by
referring it to the TOC prosecutor who would then be able to
prosecute it through the SJP, should they decide to do so and
they are within the 6 month statute of limitation.
Based on what has been commented on so far, as I understand it,
a private company cannot issue a legitimate Penalty Notice (PN)
under railway bylaw 14 because it lacks the statutory authority
required to do so. Only the Train Operating Company (TOC) or an
authorised prosecutor acting on behalf of the TOC has the legal
authority to enforce railway bylaw breaches through the Single
Justice Procedure (SJP) or other criminal court proceedings.
If a private parking company issues a notice purporting to be a
Penalty Notice under railway byelaws, surely this amounts to
misrepresentation. Using terms like "Penalty Notice" or implying
criminal liability (e.g., referring to "prosecution" or
"Magistrates’ Court") is misleading if the notice is not issued
by an authorised prosecutor or TOC.
If the notice implies criminal consequences or statutory
enforcement powers that the private company does not possess, it
breaches the Consumer Protection from Unfair Trading Regulations
2008. Also, it is making a false representation with intent to
cause loss or gain which is a breach of the Fraud Act 2006
(Section 2).
A private company issuing what it claims to be a Penalty Notice
under railway bylaw 14 is acting beyond its authority. Such a
notice must be legally invalid, as only the TOC or its
authorised prosecutor can issue and enforce Penalty Notices
under railway byelaws. Any such misuse of the term "Penalty
Notice" by a private company can only be considered as
misleading or unlawful.
So, it all comes back to my point that the UPPC, by issuing a
purported PN, is in fact committing fraud. In other words, it is
not a real PN but an "offered contract". An offered contract is
a civil contract law matter and has nothing to do with criminal
law.
The criminal extortion element is a serious issue with the
potential misuse of authority by UPPCs. If a UPPC issues what it
purports to be a PN for an alleged breach of railway bylaw 14,
this can only amount to fraudulent or unlawful behaviour.
The use of language typically reserved for criminal enforcement
in a notice issued by a private company, when the company lacks
the authority to prosecute or enforce criminal penalties, surely
meets the criteria for fraud under the Fraud Act 2006. Fraud by
false representation occurs when someone dishonestly makes a
false representation, intending to make a gain for themselves or
cause a loss to another.
If the UPPC falsely represents the notice as a legitimate
Penalty Notice under byelaw 14, this probably qualifies as
fraud. The notice implies authority (e.g., potential criminal
prosecution or fines), which the company does not have. The
intent is to scare the recipient into paying money they do not
legally owe to the UPPC.
By using intimidating language such as "fine," "offence," or
"criminal prosecution," the UPPC exploits the recipient’s likely
misunderstanding of the legal distinction between civil and
criminal liability. This tactic can only be viewed as a form of
extortion, as it pressures individuals into paying under the
false pretence of avoiding criminal consequences. Such behaviour
not only violates consumer protection laws but also constitute
criminal misconduct.
Under railway bylaw 14, only the TOC prosecutor or an authorised
agent can initiate criminal enforcement. If a breach of bylaw 14
occurs, the TOC decides whether to prosecute. If prosecution
proceeds, it must be under the Single Justice Procedure (SJP) in
the Magistrates’ Court.
Any fine imposed by the court is paid into the public purse, not
retained by the TOC or any private contractor. A UPPC issuing a
"Penalty Notice" bypasses this legal framework and improperly
seeks to profit directly from the alleged breach, which subverts
the intention of the byelaws (to regulate conduct on railway
land, not to generate private revenue) and deprives the public
purse of funds that should rightfully flow through the judicial
process.
The language used in a real Penalty Notice issued under criminal
law must reflect the statutory framework, including the nature
of the offence and potential court proceedings. A private
company issuing a notice for what is, at best, an "offered
contract" cannot lawfully use terms such as "Fine" which is
reserved for criminal penalties, "Offence" which implies
criminal wrongdoing or "Criminal prosecution" which suggests the
involvement of criminal courts, which a UPPC cannot initiate. In
a civil contract dispute, the private company must use neutral
language (e.g., "Parking Charge Notice" or "charge"), clearly
explaining the basis of the claim without implying criminal
liability.
Another key distinction in railway bylaw enforcement is that any
fines resulting from criminal prosecutions go to the public
purse. If a UPPC issues a notice and retains the funds, it
misrepresents the nature of the enforcement, redirects funds
from their intended destination (public coffers) into private
profits which clear abuse of the byelaw framework, undermining
the public interest and the legal integrity of the railway bylaw
enforcement system.
In conclusion, an unregulated private parking company issuing a
purported "Penalty Notice" under railway bylaw 14 is acting
unlawfully. Such notices are inherently fake, as only a TOC
prosecutor has the authority to issue them and initiate
proceedings under the SJP. Any language implying criminal
liability or penalties is misleading and constitutes fraud or
extortion. Furthermore, since fines under the byelaws are
intended for the public purse, the UPPC’s actions divert funds
improperly for private gain.
This conduct must be legally challengeable, and recipients of
such notices would be justified in treating them as invalid and
reporting the matter to the relevant authorities.
What I would like to know, is how could I initiate the necessary
action to get the appropriate authorities alerted to this
fraudulent and extortionate behaviour? I would like to do so as
I have the time and some resources available but short of going
out and deliberately getting one of these fake PNs issued to me
personally, I am at a loss.
#Post#: 50884--------------------------------------------------
Re: Can a private company initiate a criminal prosecution under
the SJP?
DIR By: andy_foster
Date: December 23, 2024, 12:45 pm
---------------------------------------------------------
Playing Devil's Advocate - PPCs often issue Penalty Charge
Notices on behalf of LAs. Is this any different?
#Post#: 50886--------------------------------------------------
Re: Can a private company initiate a criminal prosecution under
the SJP?
DIR By: b789
Date: December 23, 2024, 12:56 pm
---------------------------------------------------------
--- Quote from: andy_foster link ---
>
> Playing Devil's Advocate - PPCs often issue Penalty Charge
Notices on behalf of LAs. Is this any different?
>
--- End Quote ---
Yes, there is a significant difference between Penalty Charge
Notices (PCNs) issued by private parking companies (PPCs) on
behalf of Local Authorities (LAs) and purported Penalty Notices
issued by PPCs under other circumstances, such as for railway
byelaw breaches or private land parking enforcement.
When PPCs issue Penalty Charge Notices on behalf of Local
Authorities, they are acting under the statutory powers
delegated to the LA, typically under the Traffic Management Act
2004 (TMA 2004) in England and Wales or Road Traffic Regulation
Act 1984 or other legislation applicable to the relevant area.
These notices are lawful because they are issued under the
authority of public law and relate to enforceable statutory
regulations (e.g., parking restrictions, controlled zones).
PCNs issued by or on behalf of LAs are part of the civil
enforcement system, but they carry statutory backing. Recipients
who wish to contest the notice can appeal to the Traffic Penalty
Tribunal (TPT) in England and Wales or the Parking and Bus Lane
Tribunal for Scotland in Scotland.
If the notice is upheld and the charge remains unpaid, it can be
enforced through the Traffic Enforcement Centre (TEC) or
equivalent, leading to debt recovery action. Any penalty
collected from a PCN issued under LA authority goes to the Local
Authority and is reinvested in public infrastructure,
transportation improvements, or other community benefits. PPCs
issuing these notices do not retain the fines as profit but are
paid a fee by the LA for their management services.
The process for handling Penalty Charge Notices (PCNs) issued by
Local Authorities (LAs) is firmly rooted in civil law, not
criminal law, and any disputes or enforcement related to PCNs
are managed through the County Court system rather than the
Magistrates' Court.
If the recipient neither pays the penalty nor appeals
successfully, the enforcement process moves forward as a civil
matter:
[indent]a. Charge Certificate
If no payment is made after the PCN becomes enforceable, the LA
issues a Charge Certificate, increasing the penalty amount
(typically by 50%).
b. Registration as a Civil Debt
If payment is still not made, the LA can register the debt at
the Traffic Enforcement Centre (TEC), which operates as part of
the County Court system (not the Magistrates' Court).
Once registered, the PCN is treated as a civil debt, similar to
any unpaid invoice or financial liability.
c. Enforcement via County Court
The LA can apply for a warrant of control to enforce the debt
through civil means, such as instructing bailiffs (enforcement
agents) to recover the outstanding amount.[/indent]
Importantly, this is a civil enforcement action. No criminal
record or criminal penalties are involved.
#Post#: 50887--------------------------------------------------
Re: Can a private company initiate a criminal prosecution under
the SJP?
DIR By: andy_foster
Date: December 23, 2024, 1:19 pm
---------------------------------------------------------
So, in a nutshell, LAs can delegate issuing of penalty notices
to PPCs because DPE operates under civil law and there is an
appeals process, but TOCs can't delegate issuing of penalty
notices to PPCs because the bylaws operate under criminal law?
But using a lot more words.
#Post#: 50891--------------------------------------------------
Re: Can a private company initiate a criminal prosecution under
the SJP?
DIR By: b789
Date: December 23, 2024, 1:43 pm
---------------------------------------------------------
Yes, but it's -15 outside and snowing so I have time to kill.
I still want to give APCOA/SABA the BPA and POPLA their
comeuppance for their unlawful actions and extortion though.
#Post#: 50901--------------------------------------------------
Re: Can a private company initiate a criminal prosecution under
the SJP?
DIR By: NewJudge
Date: December 23, 2024, 2:24 pm
---------------------------------------------------------
Then the best thing that TOCs can do is to simply cease the
nonsense with their "Penalty Charges" (or whatever they call
them), employ somebody to patrol their car parks to tell them
when somebody has broken their rules and simply move straight to
prosecution with all the people who break their parking bylaws.
Because if they'd done that with the "live" case, we would not
be having this discussion.
The complication arises because they kindly give the miscreants
the chance to pay a bribe so as to avoid prosecution. They have
no need to do this but all the alleged miscreants have to do if
they don't like the look of it is to simply ignore it.
Quite why some of them complicate it even further by introducing
a civil arbitration process to resolve an allegation of a
criminal offence is a complete mystery.
Of course the simplest way to resolve this is to remove from the
TOCs their recourse to criminal proceedings for something which,
virtually everywhere else, is a civil matter.
As for bribery and corruption, as Andy often tells us, the
police in England & Wales operate a very profitable scheme
offering those accused of some minor traffic offences the chance
to avoid prosecution by paying for an educational course from
which they receive a very generous cut.
#Post#: 50912--------------------------------------------------
Re: Can a private company initiate a criminal prosecution under
the SJP?
DIR By: roythebus
Date: December 23, 2024, 5:45 pm
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Yes. Councils are not railway land covered by railway byelaws.
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