Parking Restrictions are widespread with fines and clamping a regular occurance.
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Parking restrictions and associated wheel clamping are increasingly common throughout England and Wales. Although the clamping industry is regulated some rogue companies and individuals continue to operate.
When clamped, many motorists feel that they have been targeted unfairly due to unclear and poorly advertised restrictions. Despite this many believe that they have no option to but to pay large fees to recover their vehicle which they feel is effectively being held to ransom.
You do not have to accept being overcharged if you have been clamped. The law now recognises that demanding huge fees from motorists in an aggressive manner can amount to Blackmail. One case resulted in a prison sentence for the owner of a wheel clamping business for this offence (see our "Relevant case law" section below).
Equally, removing a wheel clamp without the consent of the clamping company can lead to a criminal conviction for a motorist, even if they honestly believed they had been clamped unfairly and they had a right to park as they did (see our "Relevant case law" below).
This does not mean that motorists are powerless against clamping companies.
All clamping companies are required to be licensed by the Security Industry Authority (SIA). It is an offence for a landowner to knowingly allow an unlicensed company to operate on their property. You should not be forced to pay a clamper who does not hold a valid licence. Instead they should be reported to the SIA.
For further details on what to do if you have been clamped see below.
The comments below are general and should not be taken as a definitive statement of the law or procedure. Expert advice should always be sought on this area. We have not attempted to cover all the obligations or legal requirements that may arise.
If you feel that you have been clamped and / or charged unfairly by a clamping company contact us today.
Motorists who are tempted to "take the law into their own hands" in relation to clampers should be aware of a number of relevant cases.
R v Mitchell - 2003
A motorist parked his vehicle in a private car park, for which he had a visitor's parking permit which required the date and time of parking to be entered. The motorist had done so, although apparently with errors and alterations. On returning to find his car clamped the motorist refused to pay the fine and eventually removed the clamp himself using an electric cutter.
He was charged with criminal damage. At the hearing although the judge accepted that the permit had not been fraudulently altered he directed the jury that the motorist had no defence to the charge and should be convicted.
The motorist appealed his conviction. He lost. The appeal court confirmed that the motorist, even though he was the vehicle's owner, had no right to retake it from private land, if the land was entered by trespassing. Entry into the car park was conditional on the driver entering the date and time clearly on the permit. As this had not been done the car was unlawfully parked (or the owners were entitled to believe that it was) and it could therefore be clamped.
The motorist's belief that he was parked legally and was simply reclaiming his own property was irrelevant. His conviction was upheld.
R v Brunt
A motorist who failed to pay an outstanding parking fine. The district council sought to recover the amount owed by wheel-clamping his vehicle. The clamps were removed and taken away on two separate occasions. When questioned, the motorist only returned one clamp (which had been damaged). The motorist was successfully prosecuted for one offence of theft and another offence of criminal damage.
Morphitis v Salmon - 1990
This case dealt with the successful appeal of an individual charged with criminal damage. In this case a barrier (consisting of a scaffold bar, a clip and an upright) had been placed across an access road to a property. The defendant removed the bar and clip and was convicted of criminal damage for doing so by the Magistrates even though the bar and the clip had not been damaged .
In the successful appeal the court confirmed that a removal, or even a temporary removal could constitute criminal damage. However in this case as there was no criminal damage to the parts removed the defendant was entitled to be acquitted.
Aggressive Clamping and Fines Amounting to Blackmail
R v Darren Havell and Gordon Miller - 2006
In this case the defendants were convicted of seven counts of blackmail. The defendants ran a wheel clamping business where motorists who stopped their vehicles on land for only a very short period were prevented from driving away and clamped - sometimes with the driver remaining in the vehicle while this took place. Money (between £45 and £95) was then demanded from the driver for the release of their vehicles. Intimidating tactics were used by the clampers including filming the drivers.
The Judge when sentencing commented that blackmail was an ugly offence and that the defendants had behaved in an "arrogant, bullying and abhorrent manner towards motorists".
When Can you be Clamped?
Your car may be clamped if you are parked on private land without the owner's permission. Private land can consist of areas which are routinely used by members of the public (such as a pub or shop car park). You may be clamped even if you initially had permission to park - for example if you stay over the allotted time when using a temporary permit.
As well as clamping for overstaying your vehicle may be clamped if you have parked in a prohibited area - for example across two spaces or blocking an emergency exit. You may also be clamped if you have a valid ticket which is not displayed correctly.
Disabled badge holders and branded vehicles belonging to the emergency services (when attending an emergency) should never be clamped.
Local authorities have the power to clamp vehicles that are parked illegally on public roads.
In March 2008 new legislation was brought into force to rationalise clamping on public roads by local authorities. Not all local authorities practise clamping and the Government's view is that it should only be employed in limited circumstances, for example against repeated parking offenders. The legislation makes clear that clamping and towing vehicles away should only be used as a last resort and that where a vehicle is causing a hazard it should be removed, as opposed to immobilised.
Each authority should produce clear guidelines, in consultation with the police, setting out its clamping policy. However certain rules are mandatory - for example where parking is permitted the authorities must not immobilise or remove a vehicle in the first 30 minutes following a parking ticket being issued (or 15 minutes for repeat offenders).
What to do if you have been clamped
First of all stay calm. Acting when angry can cloud your judgement and lead you into actions that you might later regret. Remember that removing, or attempting to remove, a wheel clamp can result in a conviction for criminal damage, even if you genuinely believe that you were not parked illegally (see our "Selected case law" section).
Check the area. Are there any signs displayed? Are they adequate? You may want to take a photograph, if possible, to be used later in evidence. Once you have assessed the surroundings you should call the clamping company. They should provide a telephone number which should be clearly displayed.
All wheel clampers should now be licensed by the Security Industry Authority (SIA). To operate without a licence is a criminal offence. You have the right to see a clamper's licence and you are not obliged to pay them if they do not have one. If an unlicensed clamper refuses to release your vehicle contact the police. You should also report unlicensed clampers to the SIA.
Ask if the clamper's employer is signed up with the British Parking Association's Code of Practice which places further obligations on members. Clampers should have the permission of the owner of private land and you may ask them to show their permission.
If any clamper is threatening towards you it should be reported to the police. In cases where extreme aggression is used, demanding a fee for the release of a vehicle may amount to blackmail (see our "Selected case law" section).
Even if a clamper does have the necessary licence and permission you still have a number of rights (although you will be obliged to pay them in order to secure the release of your vehicle). If the clamping notices are inadequate (or simply not there) you may be able to claim back any payments you have made. Additionally if you have been overcharged you may be able to claim this back. If your vehicle has been damaged as a result of the clamping process you may have a claim against the clampers.
If you feel that your vehicle has been clamped illegally, or if you have been overcharged by a clamping firm contact Traffic Lawyers today.